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 the proper exercise of its functions, pursuant to s 34(3) of the Court Act. The parties' decision involves the Court exercising its power under s 4.55(2) of the EPA Act, to amend the Consent, as described in Annexure A, with consolidated conditions provided in Annexure B.

7. The requirements of s 4.55(2)(a) of the EPA Act are satisfied. The modification is substantially the same as originally approved under the Consent, specifically with regards to the built form, resulting in no further environmental impact and is consistent with the other conditions of the consent.

8. The Council confirms that concurrence of relevant authorities is not required, pursuant to s 4.46 of the EPA Act, and that the requirements of s 4.55(2)(b) are not relevant for consideration.

9. The parties agree that the amendment to the conditions of consent address all relevant jurisdictional requirements, and are consistent with the provisions of the Randwick Local Environmental Plan 2012. Satisfaction of the requirements of s 4.15(1) of the EPA Act remain substantially unchanged as assessed in the Consent. The requirements of s 4.55(3) are addressed.

10. The Council confirms that the notification of the MA was made, pursuant to the requirements of the Randwick Development Control Plan 2013, with three submissions (from two individual residents) received. The submissions from residents have been considered in the Council’s merit assessment of the MA and the agreed conditions, particularly with regards to protecting an adjoining resident’s privacy. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied.

11. I am satisfied, based on the evidence before the Court, that there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. The Council has undertaken the appropriate merit assessment and I have considered the jurisdictional assessment described by the parties. The appeal for Modification Application DA/637/2019/D satisfies the requirements of s 4.55(2) of the EPA Act for the Court to grant consent to modify the Consent.

12. All actions relied on by the MA are specific to the site and the Applicant is the owner of the site, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021.

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 Court Act to dispose of the proceedings in accordance with the parties' decision.

14. 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.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (259005, pdf)

Annexure B (470935, pdf)

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Decision last updated: 09 November 2023