Larsson v Randwick City Council

[2020] NSWLEC 1649

Land and Environment Court

New South Wales

Medium Neutral Citation:

Larsson v Randwick City Council [2020] NSWLEC 1649

Hearing dates:

Conciliation conference on 9 December 2020

Date of orders:

16 December 2020

Decision date:

16 December 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [14]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Randwick Local Environmental Plan 2012

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Larsson v Randwick City Council [2017] NSWLEC 1060

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Ben Larsson (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Seymour (Respondent)

Solicitors:
Conomos Legal (Applicant)
Eakin McCaffery Cox Lawyers (Respondent)

File Number(s):

2019/21640

Publication restriction:

No

Judgment

1. COMMISSIONER: Ben Larsson (the Applicant) has applied to the Court to modify a consent granted by the Court, in Larsson v Randwick City Council [2017] NSWLEC 1060 (the original consent), for demolition of existing structures and construction of a three-storey boarding house and ancillary site works at 30 Middle Street, Kingsford (the Subject Site). In this matter, as was the case in relation to the original consent, Randwick City Council (the Respondent) had sought that the Court refuse the Applicant’s application.

2. The Applicant was granted leave by the Court on 5 November 2019 to rely on amended plans and other documents.

3. The application to modify the original consent (the Proposed Modification) seeks approval for an increase in the number of self-contained rooms from eighteen rooms to nineteen rooms, along with certain internal and external changes required to accommodate the additional room and in relation to compliance with the Building Code of Australia (BCA) and in relation to certain common services.

4. The application to modify the original consent is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act), falls within Class 1 of the Court’s jurisdiction and was made with the consent in writing of the owner of the Subject Site, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.

5. These proceedings are determined pursuant to the provisions of s 4.55(2) of the EP&A Act.

6. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 9 December 2020, and I presided over that conciliation conference.

7. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy. No site view was undertaken during the conference, and no objectors had sought to make representations to the Court as part of the conciliation conference.

8. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. as the modification application that is the subject of this appeal was made pursuant to the provisions of s 4.55(8), and is determined pursuant to the provisions of s 4.55(2), of the EP&A Act, the Parties have confirmed:

1. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all);

2. the original consent did not require the imposition of any conditions as a result of general terms of approval received from a concurrence authority;

3. the modification application as originally made was notified for fourteen days in accordance with provisions of Randwick Comprehensive Development Control Plan 2013 (RCDCP);

4. the Applicant’s amended modification application was also notified for fourteen days in accordance with the provisions of RCDCP;

5. one submission was received in response to the Respondent’s notification of the modification application as originally made, and the Respondent has considered this in entering into the s34 agreement with the Applicant; and

6. no submissions were received in response to the Respondent’s notification of the Applicant’s amended modification application.

2. the Applicant’s modification application satisfies the requirements of cll 26 and 27(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as the Subject Site is zoned R3 Medium Density Residential under the provisions of cl 2.3 of Randwick Local Environmental Plan 2012.

11. Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EP&A Act have been so satisfied.

12. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

14. The Court orders that:

1. The Applicant is granted leave to amend the modification application and rely upon the following plans in the proceedings referred to at condition 1 in annexure A.

2. The Applicant is to pay the Respondent’s s 8.15(3) costs thrown away on the amended plans in the agreed amount of $1,000.

3. The appeal is upheld.

4. The s 4.55(8) modification application made pursuant to s4.55(2) of the Environmental Planning and Assessment Act 1979 seeking modifications involving, increasing the self-contained rooms to 19 rooms and other internal and external changes to accommodate the additional room at premises known as 30 Middle Street, Kingsford is approved subject to the conditions in Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (383065, pdf)

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Decision last updated: 16 December 2020