Douroudis v Randwick City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Douroudis v Randwick City Council [2022] NSWLEC 1648

Hearing dates:

17 November 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [68].

Catchwords:

MODIFICATION APPLICATION: alterations and additions to dwelling house development in R2 Low Density Residential zone – whether substantially the same – whether consistent with provision of the Randwick Development Control Plan

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, cl 113

Land and Environment Court Act 1979, ss 34AA, 34, 39

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.7, 6.11, 6.12

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Cases Cited:

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Peter Douroudis (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
S Flanigan (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/234385

Publication restriction:

No

Judgment

1. COMMISSIONER: On 5 July 2013, development application no DA/761/2012 for alterations and additions to an existing dwelling house was determined by the grant of consent at 81 Denning Street, South Coogee.

2. Subsequently, an application to modify the consent, DA/761/2012/A, was lodged to seek consent for the addition of a roof terrace, internal changes and addition of a window. The modification application was deemed refused, and an appeal to the Court resulted in agreement under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 19 June 2014.

3. A further modification application, DA/761/2021/B, to modify the consent to permit the reconstruction of existing walls on the southern side of the dwelling, in the same location, was approved on 11 July 2014.

4. On 13 May 2021, a further application to modify the consent, DA/761/2012/C, was approved by the Randwick Local Planning Panel (the Panel). The modification application sought provision of an accessible pathway, modifications to the lobby and stair, addition of a new lift, internal reconfiguration, changes to windows and doors and associated works.

5. In determining the modification application, the Panel imposed condition 2A in the following terms:

“Condition 2A. The upper portion of the lift core and new roof above the existing dwelling shall be deleted. The height of the lift core including the associated lobby area shall not exceed RL56.19. Details of compliance are to be submitted to and approved by Council’s Manager Development Assessment prior to the issue of Construction Certificate.”

6. On 4 April 2022, a further modification application, DA/761/2021/D (the modification application), was lodged seeking that Condition 2A be deleted.

7. On 14 July 2022, the Panel determined to refuse the modification application.

8. On 9 August 2022, the Applicant in these proceedings, Mr Douroudis, filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA…