Lee v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v Randwick City Council [2021] NSWLEC 1200

Hearing dates:

11-12 March 2021

Date of orders:

12 March 2021

Decision date:

12 March 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

Proceedings 2020/194590

See orders below at [36]

Proceedings 2020/221586

See orders below at [37]

Proceedings 2020/221566

See orders below at [38]

Catchwords:

APPEALS – modification application – development application for use – building information certificate – work done otherwise than in accordance with development consent for approved dual occupancy – works required to regularise unlawful work – overlooking – bulk and scale

Legislation Cited:

Environmental Planning and Assessment Act 1997, ss 6.25, 8.7, 8.9, 8.25,

Land and Environment Court Act 1997, ss 34, 34A

Randwick Local Environmental Plan 2012

Cases Cited:

Ireland v Cessnock City Council (1999) 110 LGERA 311 [1999] NSWLEC 250

Category:

Principal judgment

Parties:

Matthew Po-Shen Lee (First Applicant)
Yung Jung Lee (Second Applicant)
Lanny Li-Yue Fang (Third Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Flanigan (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/194590
2020/221566
2020/221586

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

1. COMMISSIONER: There are three appeals before this court, the details of which I will set out below. The common factor between the appeals is that they are required in order to remedy the vice caused by the carrying out of development otherwise than in accordance with a development consent.

2. Regrettably, such matters are often before this Court where, after work is carried out, there are steps taken to regularise that work and ultimately, such persons that undertake the unlawful work realise that it is not a saving of any sort of resources or money to carry out what they wish and later seek permission in retrospect for it, rather than seek permission ahead of time.

3. That said, it is not part of my role to consider any form of punishment or to consider the fact of the works having been carried out, except to note their existence and the steps being taken to remedy any problems caused by that work having been carried out. I approach the matter where the applicant gets no benefit for having carried out the work but, on the other hand, suffers no disbenefit in the assessment of the application in accordance with various provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act).

4. On 10 February 2017, the Randwick City Council (Council) granted development consent to development application number 660/2016 for the erection of an attached dual occupancy on the land known as 36-38 Jennings Street, Matraville. The dual occupancy included attached open cabanas in the rear yards and was subject to certain conditions which required some modifications to the plans the subject of that approval.

5. On 25 August 2017, the council approved modification 660/2016A, for upper mezzanine levels and…