Ong v Randwick City Council

[2023] NSWLEC 1669

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ong v Randwick City Council [2023] NSWLEC 1669

Hearing dates:

Conciliation conference held on 31 October to 1 November 2023

Date of orders:

09 November 2023

Decision date:

09 November 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent DA/637/2019 is modified by consent to Modification Application DA/637/2019/D, in the terms set out in Annexure A.

(3)   Development Consent DA/637/2019 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – changes conditions relating to an approved building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 98

Randwick Local Environmental Plan 2012

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Peter Ong (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
S Simington (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/141660

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against conditions imposed on a Development Consent DA/637/2019 (the Consent) determined by Randwick City Council (hereafter the Council), as sought in Modification Application DA/637/2019/D (the MA), and which relates to alterations and additions to an existing dwelling on Lot 12 Deposited Plan 847232, also known as 59 Beach Street, Coogee (the site).

2. The original Development Application DA/637/2019 was determined by the grant of consent on 26 November 2020 and then subject to a number of approved modifications. The MA was lodged with Council on 8 August 2022, and partially approved with conditions.

3. The Applicant appealed against the above conditions imposed on the Consent, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The MA seeks amendment to the Consent by modification to conditions 2 (a and b) and deletion of conditions 2 (f), 31 (A, B, C and D) and 41F that relate to privacy mitigation and tree management.

4. The Court agreed to a conciliation conference, pursuant to s 34AA(1) of the Land and Environment Court Act 1979 (Court Act), starting with an onsite view, by request of the parties. An oral submission by the resident of an adjoining property was heard, with visual inspection of the property at 6 Gordon Avenue at the start of the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court, which deleted the contested condition (2d), amended contested conditions 2 and 31, and also amends existing condition 1 to reflect this change, as described in Annexure A.

6. Pursuant to s 34(3)(a) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in…