Progress East Pty Ltd v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Progress East Pty Ltd v Randwick City Council [2019] NSWLEC 1029
Hearing dates:	4 December and 14 December 2018
Date of orders:	06 February 2019
Decision date:	06 February 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	(1)   The appeal is upheld. (2)   Consent is granted for the modifications sought in respect of development consent DA 266/2015/C for the alterations and additions to the existing residential flat building at 131 Mount Street, Coogee, subject to the schedule of modified conditions set out in Annexure “A” and the consolidated conditions as set out in Annexure “B”. (3)   The exhibits, other than exhibits A, C, 2, 3 and 4, may be returned.
Catchwords:	DEVELOPMENT APPLICATION: Modification of development consent; s 4.55(1A) of EPA Act; whether substantially the same development; whether minimal environmental impact; amenity; objections; consent orders
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38
Texts Cited:	Practice Note - Class 1 Development Appeals Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Progress East Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: M Jaku, Jaku Legal (Applicant) V McGrath, Norton Rose Fulbright (Respondent)
File Number(s):	2018/174588
Publication restriction:	No

Judgment

Introduction

1. This judgment concerns a Class 1 appeal brought by Progress East Pty Ltd under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against Randwick City Council’s (Council) refusal of an application to modify a development consent. The application is referenced as DA 266/2015/C. DA 266/2015/C was lodged under s 4.55 (1A) of the EPA Act.

2. The application seeks to modify an approved development being a part three and part four storey residential flat building comprising six residential units (3×1 bedroom and 3×2 bedroom) with basement parking and landscaping, at 131 Mount Street, Coogee, also described as Lots 1 to 6 in Strata Plan 96380 (site). The proposed modification involves alterations to the approved residential flat building to reconfigure certain bedrooms, bathrooms and storage areas.

3. There is some background to the application. A residential flat building currently exists on the site. However, the as-built development included some elements which were inconsistent with the original consent. The effect of these inconsistencies was suggested to introduce the potential for additional sleeping rooms within the development. Council’s contentions (Exhibit B) originally maintained concerns that the proposal was not “substantially the same development” (a jurisdictional requirement of modification applications generally) as a consequence of the additional capacity for sleeping rooms.

4. Changes to the original appeal plans (Exhibit C) were undertaken in response to this and other contentions raised by the Council. The amended plans, and dialogue in regard to conditions, had reached the point that the contentions has fallen away and agreed consent orders for this matter were prepared by the parties, and proposed to the Court, prior to the commencement…