Lim v Randwick City Council

[2025] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lim v Randwick City Council [2025] NSWLEC 1279

Hearing dates:

Conciliation conference on 28 April 2025

Date of orders:

28 April 2025

Decision date:

28 April 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application No. DA/1024/2023 for modifications to the existing garage slab and works within the road reserve including new vehicular crossing and layback to service the existing garage, and associated modifications to the existing pedestrian footway and Council verge in respect of the property known as 18 Byron Street Coogee subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – new vehicular access to existing garage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Roads Act 1993, s 145

Environmental Planning and Assessment Regulation 2021, s 38

Randwick Local Environmental Plan 2012, cll 2.7, 6.1, 6.2, 6.4, 6.10

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Soo Lim (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor)(Applicant)
V McGrath (Solicitor)(Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Randwick City Council (Respondent)

File Number(s):

2024/391597

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA/1024/2023 (Civil Works Application LA/1741/2017) seeking consent for a proposed new vehicular access to an existing garage (Proposed Development) on public land adjacent to 18 Byron Street, Coogee legally described as Lot D in DP 105894 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 April 2025. I presided over the conciliation conference.

3. A single Joint Expert Report (JER) was prepared by Mr Jason Rider (Development Engineer) and Mr Joseph Edmonds (Town Planner), for the Respondent, and Mr Dean Brodie (Consulting Traffic Engineer) and Mr Dave Moody (Consulting Town Planner) for the Applicant and was filed on 26 March 2025. The JER provides that during the course of the joint conclave, Mr Brodie produced amended plans varying the proposed levels for the driveway and footpath within the road reserve and that as a consequence, there are no items of disagreement between any of the experts in respect to the Contentions raised in the Statement of facts and Contentions filed 13 November 2024 (SOFAC), and the Applicant’s Statement of Facts and Contentions in Reply filed 10 December 2024 (SOFAC in Reply).

4. The history of the development works undertaken at the Site for the garage is set out at [16]-[17] of the SOFAC and in Part A of the SOFAC in Reply and it is noted that the parties remain in disagreement as to the nature of works which were approved under DA/669/2012 and subsequent modification applications.

5. However, there being no remaining matters in dispute in these proceedings, the parties have agreed to resolve the proceedings by way of an agreement pursuant to s 34 of the LEC Act.

6. 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 development consent to the development application subject to conditions.

7. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be a number of provisions in the Randwick Local Environmental Plan 2012 (RLEP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the court.

10. The applicant is the owner of the Land.

11. The Respondent is the owner of road reserve fronting the Site by virtue of s 145 of the Roads Act 1993. The Court can provide owner’s consent under s 39(2) of the LEC Act and does so.

12. The Site and the road reserve of Byron Street are zoned R2 - Low Density Residential under the RLEP. The Proposed Development for the purposes of a dwelling house is permissible in the zone with consent and the garage and its associated access are ancillary to the primary use of a dwelling house.

13. There is minor demolition work required to enable the development work to be carried out and pursuant to cl 2.7 of the RLEP, the proposed demolition is permissible with consent.

14. The Proposed Development proposes very minor earthworks which I accept are ancillary to the development for which development consent is being given: cl 6.2(2)(b), RLEP.

15. The Site does not fall within mapped acid sulfate soils: cl 6.1, RLEP.

16. As a result of the nature and extent of the Proposed Development the Court is satisfied that the design of Proposed Development does not have any adverse impact of stormwater runoff and that no stormwater management plan is required: cl 6.4, RLEP.

17. Given the locality of the Site in a developed residential area and the existing dwelling having the benefit of essential services, the Court is satisfied that the supply of water, electricity, telecommunications and management of sewage is currently available: cl 6.10, RLEP.

18. The current and previous use of the Site is for residential purposes and has been so for a significant number of years. The Site is not considered likely to have any contamination: s 4.6, State Environmental Planning Policy (Resilience and Hazards) 2021.

19. I am 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. I adopt the reasons given by the parties as I have set out in this judgment.

20. 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.

Notations:

21. The Court notes:

1. The Randwick City Council, as the relevant consent authority for the purposes of section 38(2) of the Environmental Planning and Assessment Regulation 2021, agrees to the amendment to Development Application No. DA/1024/2023 to rely upon the amended plans and documents set out below:

Drawing Number	Drawing Name	Drawn By		Date
Sheet 1	PT24090DA09 Vehicle Clearance Section 1	DB		23 April 2025
Sheet 2	PT24090DA09 Vehicle Clearance Section 2	DB		23 April 2025
Sheet 3	PT24090DA09 Vehicle Clearance Section 3	DB		23 April 2025
Sheet 4A	PT2409DA09 Civil Works Plan	DB	28 April 2025

Orders:

22. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to Development Application No. DA/1024/2023 for modifications to the existing garage slab and works within the road reserve including new vehicular crossing and layback to service the existing garage, and associated modifications to the existing pedestrian footway and Council verge in respect of the property known as 18 Byron Street Coogee subject to conditions in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (169913, pdf)

The Plans (276317, pdf)

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Decision last updated: 29 April 2025