Earwaker v Randwick City Council

[2020] NSWLEC 1346

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Earwaker v Randwick City Council [2020] NSWLEC 1346

Hearing dates:

Conciliation conference on 30 July 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

See orders at [6] below.

Catchwords:

APPEAL – modification application – modification to development consent for dwelling house – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Michael Earwaker (First Applicant)
Fleur Bitcon (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicants)
R White (Respondent)

Solicitors:
Hones Lawyers (Applicants)
Randwick City Council (Respondent)

File Number(s):

2020/113042

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a modification application with respect to a development consent for the construction of a dwelling house at 25 Knox Street, Clovelly. The application seeks modify the consent to incorporate the use of the increased sub-floor basement for storage purposes, to relocate the car parking space and vehicle turntable, to include the construction of a swimming pool at the lower ground floor and to make associated modifications to the landscaping on the site. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [6] below, are required to be made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 30 July 2020. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modification concerns alterations to ancillary areas of the dwelling house and do not change any essential element or result in any change to the height, floor area or design of the dwelling house. Further, I am satisfied that the notification requirements of s 4.55(2)(c) have been met, and, consistent with s 4.55(2)(d), I have considered the submissions made with respect to the proposed modification.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

6. The Court orders that:

1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Wyer & Co:

1. Plan No. 02-02E – Site Plan dated 23 July 2020, notated Revision ‘E’,

2. Plan No. 02-03C – Landscape Plan dated 23 July 2020, notated Revision ‘C’;

3. Plan No. 02-05F – Lower Ground Floor Plan dated 23 July 2020, notated Revision ‘F’;

4. Plan No. 02-08.1 – Sections - Pool dated 23 July 2020, notated Revision ‘B’;

5. Plan No. 02-09E – Northern Elevation D dated 23 July 2020, notated Revision ‘E’;

6. Plan No. 02-10F – Eastern Elevation E dated 23 July 2020, notated Revision ‘F’;

7. Plan No. 02-11E – Southern Elevation F dated 23 July 2020, notated Revision ‘E’;

8. Plan No. AREA-01E – Site Plan dated 23 July 2020, notated Revision ‘E’.

2. Leave is granted to the Applicant to rely on Plan No. 02-04D – Garage/Basement Floor Plan, prepared by Architect Prineas dated 21.1.20, only to the extent that the plan identifies the proposed use of the Garage /Basement Level.

3. The appeal is upheld.

4. Modification Application DA/455/2018/C, seeking to modify Development Consent DA/455/2018, is approved in respect of the property at 25 Knox Street, Clovelly, being Lot 9 in DP 8017, for modification of approved development for the use of the increased sub-floor basement for storage purposes, relocationed car parking space and vehicle turntable, and for the construction of swimming pool at lower ground floor and associated landscaping subject to the conditions in Annexure A and Annexure B.

…………………….

J Gray

Commissioner of the Court

Annexure A (193618, pdf)

Annexure B (268410, pdf)

Architectural Plans Part 1 (10279977, pdf)

Architectural Plans Part 2 (576570, pdf)

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Amendments

05 August 2020 - Plans added to judgment.

Decision last updated: 05 August 2020