Ross v Randwick City Council

[2025] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ross v Randwick City Council [2025] NSWLEC 89

Hearing dates:

14 February 2025

Date of orders:

26 August 2025

Decision date:

26 August 2025

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1)   Declare the determination of modification application 634/2021/A by Randwick City Council on 1 March 2023 in relation to development on Lot 32 in DP 36250 known as 8 Hamel Road, Matraville, invalid.

(2)   Unless the second respondent notifies the Court within 7 days of the publication of these reasons, that is by 2 September 2025, that it seeks to be heard on the question of costs, the second respondent to pay the applicant’s costs of the proceedings.

Catchwords:

JUDICIAL REVIEW – review of Council’s decision – modification assessment pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) – whether failure to consider sections 2.5 and 3.3.3 of the Randwick Comprehensive Development Control Plan 2023 – whether failure to consider mandatory considerations – whether “substantially the same development” – declaration – decision invalid

Legislation Cited:

Environmental Planning and Assessment Act1979 (NSW) ss 1.4, 3.42, 4.15, 4.55

Randwick Local Environmental Plan 2012 cl 4.6

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Canterbury-Bankstown Council v RealizeArchitecture Pty Ltd [2024] NSWLEC 31

Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163

Fabcot Pty Ltd v Newcastle City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Hooper v Port Stephens Council & Anor [2010] NSWCA 368

Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349

Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64

Minister v Wu Shan Liang (1996) 185 CLR 259

Nicholas Tang Holdings Pty Ltd v Berbic and Wingecarribee Shire Council [2024] NSWLEC 95 Platford v van Veenendaal and Shoalhaven City Council (2018) 229 LGERA 101; [2018] NSWLEC 27

Schroders Australia Property Management v Shoalhaven City Council [2001] NSWCA 74

Tomasic v Port Stephens Council [2021] NSWLEC 56

Zhang v Canterbury City Council (1999) 105 LGERA 18; [1999] NSWLEC 209

Texts Cited:

Randwick Comprehensive Development Control Plan - C1 Low Density Residential 2023 sections 2.5, 3.3.3

Randwick Development Control Plan – C1 Low Density Residential 2013 sections 2.4(i), 3.3.3

Category:

Principal judgment

Parties:

Irina Ross (Applicant)
Randwick City Council (Second respondent)
Kwok Fai Leung (Third respondent)
Mim Tsu Nheu (Fourth respondent)

Representation:

I Ross (self-represented) (Applicant)

Counsel:
M Astill (Second Respondent)

Solicitors:
Victoria Louise McGrath, Randwick City Council (Second Respondent)
Contractus Lawyers (Third and Fourth Respondents)

File Number(s):

2024/106974

Publication restriction:

Nil

JUDGMENT

Introduction and background

1. On 20 March 2024, Irina Ross (the applicant) commenced Class 4 judicial review proceedings pursuant to s 20(1)(c) of the Land and Environment Court Act 1979 (NSW) against ADS Building Designers (ABN 56507905619) (ADS) and Randwick City Council (Council) (the second respondent) in relation to Council’s decision made on 1 March 2024 pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) determining to approve modification application 634/2021/A (the modification decision). The modification decision concerned proposed development of Lot 32 in DP 36250 known as 8 Hamel Road, Matraville (the property). Prior to the modification decision, Council had on 28 July 2022 determined to approve development application 634/2021 for the demolition of all existing structures and construction of a new two storey duplex development and associated works at the property (the original development consent).

2. The modification decision approved the following modifications to the original development consent:

Ground floor and first floor alterations and additions to the existing approved Duplex Development to increase ground floor living area, provide an additional bedroom to the first floor level of each dwelling including internal layout changes

Changes to windows on the eastern, western and southern elevations as a result of internal layout changes.

Modify condition 18(b) to allow for excavation associated with the installation of services, pipes stormwater systems or similar in the rear yard of the western dwelling subject to an Arborists report. Modify condition 18(c) for the footprint of the dwelling and setbacks to the trees to be consistent with the new proposed ground floor plans lodged with the s 4.55 Application subject to an Arborists report.

3. The applicant, who was self-represented, but legally qualified, is the owner of the neighbouring property at 10 Hamel Road, Matraville.

4. ADS was the applicant for both development application 634/2021 (the original development application) and application 634/2021/A to amend the original development application (the modification application).

5. ADS was the first respondent to the proceedings commenced by the applicant. On 17 May 2024, Duggan J made an order, by consent, that the proceedings against ADS be dismissed without any order as to costs.

6. Kwok Fai Leung (the third respondent) and Mim Tsu Nheu (the fourth respondent) are the owners of the property. On 1 August 2024, the third and fourth respondents filed a submitting appearance.

7. On 27 May 2024, the applicant amended the summons to remove the first respondent and to add the third and fourth respondents. The order sought remained the same, namely:

1. Section 4.55(2) Modification Development Approval 6 March 2024 declared invalid.

8. The Grounds of Review consisted of 15 paragraphs under headings “Background” (paragraphs 1 to 6), “Legislative requirements” (paragraphs 7 to 11), “Failure of comply” (paragraphs 12 to 14), and “Orders sought” (paragraph 15).

9. At the hearing on 14 February 2025, the applicant sought leave to further amend the summons to include two additional grounds of review, namely a new paragraph 11A that Council failed to comply with section 2.5 of Randwick Comprehensive Development Control Plan 2023 (Randwick DCP 2023); and paragraph 11B that Council failed to take matters into account when making an assessment that the modified development was substantially the same as the original development. In circumstances in which Council indicated that it could deal with the substance of both of the proposed amendments, I granted the applicant leave to file in Court a further amended summons to include new paragraphs 11A and 11B (the further amended summons). I made clear that what was intended to be referred to in paragraph 11B were the matters set out in paragraphs 28 and 29 of the applicant’s written submissions filed and served on 3 February 2025.

Issues

10. The grounds of review attached to the further amended summons comprised 17 paragraphs. Paragraphs 11 to 14 set out the grounds of review as follows:

11. The Modification DA proposed the First-Floor rear set back of the absolute required minimum, which was:

- a substantial decrease of the originally approved First Floor rear set back, of approximately 30%;

- completely out of alignment with the existing predominant rear setback line in the subject urban block:

○ 6 Hamel Rd - First Story rear set back is 15 meters;

○ 10 Hamel Rd - First Story rear set back is 15 meters;

○ 12 Hamel Rd and the rest of the street - First Storey rear set backs are more than 15 meters.

- extending beyond the existing rear setbacks of the neighbouring 6 and 10 Hamel Road dwellings by 7 meters, and impacting on their privacy, solar access and views sharing, as well as overshadowing and overcrowding the open space of those neighbouring properties;

- not sufficient for a small urban site ( with the frontage below the minimal site width allowed for the proposed development) to protect the site from overbuilding.

This section 10 is included to indicate that the issue of First Floor rear set back was a significant issue for the development site and neighbouring properties. As a significant issue, it should have been considered by the Consent Authority in accordance with the legislative requirements and without errors.

11A. Council (Second Defendant) failed to consider control 2.5 of section C1 RCDCP or to provide reasons why the compliance is not required.

11B. Council failed to take relevant matters into account when making an assessment that the development modification was substantially the same as the original development as referenced in para 28 and 29 of the Applicant’s Submissions.

Failure to comply

12. Modification DA’s neither complies with section 3.3.3.(ii) of the RCDCP nor demonstrates that the compliance with the requirements was not required. Specifically, the Modification DA does not address the issue of the existing predominant rear set back on the street (15 metres). It does not adequately address the issue of loss of privacy and overshadowing of the neighbouring properties. It does not address the issue of overcrowding and overdeveloping of 8 Hamel Road site, which does not even have the width required for the proposed development.

13. The Notice of Assessment does not address the issue of Modification DA’s compliance with the section 3.3.3(ii) RCDCP. It neither states that the Modification DA complies with the requirements of section 3.3.3(ii) RCDCP nor that the Modification DA demonstrates that the compliance was not required. The Notice of Assessment fails to deal with the requirements of section 3.3.3 of the RCDCP.

14. By actions or inactions above, the Consent Authority:

a. failed to consider the requirements of section 3.3.3(ii) RCDCP; and/or

b. failed to require the compliance with the requirements of section 3.3.3(ii) RCDCP; and/or

c. failed to require the applicant to demonstrate why the compliance with the requirements of section 3.3.3(ii) RCDCP was not required; and

d. failed to comply with section 4.6 RLEP; and

e. failed to comply with sections 4.15 and 4.55 of the EPAA.

11. The applicant’s written submissions filed on 3 February 2025 and oral submissions made at the hearing articulated the grounds of review differently from the manner in which they were expressed in the summons originally filed on 20 March 2024. At the hearing, the applicant submitted that Council failed to properly assess the modification application in two ways. The hearing proceeded on the basis that the applicant complained of failures in relation to the requirements of certain provisions of the EPA Act, the Randwick Local Environment Plan 2012 (NSW) (Randwick LEP) and Part C1 Low Density Residential of Randwick DCP 2023. The grounds of challenge, as advanced at the hearing, can be addressed as follows:

1. whether Council failed to “properly consider the relevant development controls”, namely sections 2.5 and 3.3.3 of Randwick DCP 2023; and

2. whether Council failed to “properly assess” the modification application by “assessment of the Modified Development as ‘substantially the same’” as the previously approved development.

Outcome

12. For the reasons that follow, I have determined that:

1. In making the modification decision, Council failed to consider sections 2.5 and 3.3.3 of Randwick DCP 2023, and hence the decision is invalid.

2. The applicant’s complaint that Council failed to “properly assess” the modification application by “assessment of the Modified Development as ‘substantially the same development’” is dismissed.

13. The result is that the modification decision is invalid and of no effect.

Factual background

14. The relevant factual background was uncontroversial and can be stated shortly.

15. The property has an overall site area of 569.7m².

16. On or about 14 October 2021, ADS lodged the original development application with Council. The proposal was described as: “[d]emolish all existing structures on the site and construct a new two storey duplex development and associated works.”

17. From 20 October 2021, the original development application was publicly notified for 14 days.

18. On 2 November 2021, the applicant lodged with Council a submission in relation to the original development application.

19. On 10 May 2022, a Council planner sent an email to George Mandadakis of ADS requesting “additional information/amended plans” in respect of “GFA/FSR and deep soil areas”.

20. On or about 28 July 2022, an assessment report was prepared by Council (the 2022 assessment report) and a notice of determination approving the original development application was issued.

21. On or about 3 October 2023, ADS lodged the modification application with Council. The modification application proposed a 32.38% of the site area to be “[l]andscape and permeable [s]urfaces”.

22. From 10 October 2023, the modification application was publicly notified for 14 days.

23. On 15 November 2023, the applicant made a submission to Council opposing the modification application.

24. On or about 1 March 2024, Council made the modification decision.

25. On 5 March 2024, Council’s notice of determination made on 1 March 2024 approving the modification application was sent to Mr Mandadakis, the named contact of ADS.

26. On 6 March 2024, the applicant was notified of the modification decision by letter from Council.

Relevant legislative provisions

27. Section 3.42 of the EPA Act provides as follows in relation to the principal purpose and status of development control plans as follows:

3.42   Purpose and status of development control plans (cf previous s 74BA)

(1)  The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a)  giving effect to the aims of any environmental planning instrument that applies to the development,

(b)  facilitating development that is permissible under any such instrument,

(c)  achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2)  The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)–(e).

(3)  Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development.

28. Section 4.15 of the EPA Act provides relevantly as follows in relation to the matters Council is to take into consideration in determining a development application:

4.15   Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

…

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

…

(6) Definitions In this section—

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

29. Section 4.55(2)-(3) of the EPA Act relevantly provides in relation to modification applications as follows (emphasis added):

4.55   Modification of consents—generally (cf previous s 96)

…

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

…

30. Section 1.4 of the EPA Act provides the following definition of development standards:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of—

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

Relevant planning controls

31. Clause 4.6 of Randwick LEP provides (and has at all relevant times provided) as follows in relation to exceptions to development standards:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

Note—

The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).

(4) The consent authority must keep a record of its assessment carried out under subclause (3).

…

32. Section 2.4(i) of the 2013 Randwick Development Control Plan (Randwick DCP 2013) which was repealed by the commencement of the Randwick DCP 2023 on 1 September 2023 provided the following controls in relation to landscaping and permeable surfaces:

2.4 Landscaping and Permeable Surfaces

…

Controls

i) Deep soil permeable surfaces must be provided in accordance with the table below:

33. Section 3.3.3 of Randwick DCP 2013 provided in relation to rear setbacks:

3.3.3 Rear Setbacks

Controls

i) The minimum rear setback must be 25% of allotment depth or 8m, whichever is the lesser.

Note: Rear setback controls do not apply to corner allotments.

ii) Provide increased rear setbacks over and above the aforementioned minimum requirements, or demonstrate that this is not required, having regard to the following matters:

- Existing predominant rear setback line in the subject urban block.

- The need to achieve reasonable view sharing with the neighbouring dwellings and the public domain.

- The need to adequately protect the privacy and solar access to the neighbouring dwellings.

iii) Garages, carports, outbuildings, swimming or spa pools, above-ground water tanks, and unroofed decks and terraces attached to the dwelling may encroach upon the required rear setback, in so far as they comply with other relevant provisions of this DCP.

iv) For irregularly shaped allotments, or allotments with the longest boundary abutting the street or the rear adjoining neighbour (that is, the frontage width being longer than the site depth), the rear setback will be assessed on merit having regard to demonstration of the following:

- Compatibility with the existing development pattern in the subject and adjoining urban blocks.

- Provision of adequate private open space with dimensions compliant with the requirements of this DCP.

- Potential impacts on the neighbouring dwellings in terms of solar access, privacy and view sharing.

34. On 27 June 2023, “Part C1 Low Density Residential” of Randwick DCP 2023 was published (and commenced on 1 September 2023).

35. Section 2.5 of Randwick DCP 2023 provides the following controls in relation to deep soil permeable surfaces:

2.5. Deep soil permeable surfaces

…

Controls

i) New development, or alterations and additions that change the existing site coverage by more than 10%, must provide the minimum area of deep soil permeable surfaces as specified in the table below:

36. In Part C1, section 3.3.3 provides in relation to rear setbacks as follows (emphasis added):

3.3.3. Rear setbacks

Controls

i) The minimum rear setback must be 25% of the allotment depth or 8m, whichever is the lesser.

Note:

Rear setback controls do not apply to corner allotments.

ii) Provide increased rear setbacks over and above item i), or demonstrate that this is not required, having regard to the following matters:

- Existing predominant rear setback line in the subject urban block

- The need to achieve reasonable view sharing with the neighbouring dwellings and the public domain

- The need to adequately protect the privacy and solar access to the neighbouring dwellings.

iii) Garages, carports, outbuildings, swimming or spa pools, above-ground water tanks, and unroofed decks and terraces attached to the dwelling may encroach upon the required rear setback, in so far as they comply with other relevant provisions of this DCP.

iv) For irregularly shaped allotments, or allotments with the longest boundary abutting the street or the rear adjoining neighbour (that is, the frontage width being longer than the site depth), the rear setback will be assessed on merit having regard to demonstration of the following:

- Compatibility with the existing development pattern in the subject and adjoining urban blocks

- Provision of adequate private open space with dimensions compliant with the requirements of this DCP

- Potential impacts on the neighbouring dwellings in terms of solar access, privacy and view sharing.

Definition:

The predominant rear setback is defined as the average of adjacent dwellings on either side of the allotment and is determined separately for each storey.

Evidence

37. The evidence relied upon by the applicant consisted of the following:

1. the original development application dated 12 October 2021;

2. the statement of environmental effects and plans for the original development application prepared by ADS dated October 2021;

3. the notice of the original development application sent to the applicant, Ms Ross, dated 20 October 2021;

4. the joint submission by Ms Ross in response to the original development application, including a petition signed by residents of 10, 17, 4, 2 and 12 Hamel Road, Matraville, sent by email to Council on 2 November 2021;

5. Council’s request for further information sent to ADS in relation to the original development application dated 10 May 2022;

6. amended materials received by Council including a clause 4.6 variation prepared by ADS dated 12 May 2022;

7. “DA Report – New Dwelling House” in relation to the original development application prepared by Angela Manahan for Council dated 28 July 2022;

8. notice of determination in relation to the original development application dated 28 July 2022;

9. letter from Frank Ko, manager, development assessment at Council to Ms Ross notifying her of the outcome of the original development application dated 9 August 2022;

10. the modification application made by ADS on or about 3 October 2023;

11. the statement of environmental effects and plans for the modification application prepared by ADS dated September 2023;

12. notice of the modification application addressed to Ms Ross from Mr Ko at Council dated 10 October 2023;

13. the joint submission by Ms Ross, including a petition signed by residents of 10, 17, 4, 2 and 12 Hamel Road, Matraville, sent by email to Council on 15 November 2023;

14. “DA Report – Section 4.55 modification” prepared by internal assessing officer Max Di Rosario of Council, dated 1 March 2024, in relation to the property (the 2024 modification assessment report);

15. the notice of determination of the modification application, including approved documents dated 5 March 2024;

16. letter from Frank Ko, manager, development assessment at Council, to Ms Ross notifying her of the outcome of the modification application dated 6 March 2024;

17. development application number 968/2018 in relation to 6 Hamel Road, Matraville;

18. joint submission of residents of 10, 8, 4, 2, 17, 4 and 2 Hamel Road, Matraville, in relation to development application number 968/2018, which concerned proposed development at 6 Hamel Road, Matraville, sent by Ms Ross to Council by email dated 13 January 2020;

19. “DA Report – Dual Occupancy” prepared by Alexandra Marks of Council in relation to development application number 968/2018 dated 12 March 2020; and

20. the notice of determination in relation to development application number 968/2018 dated 12 March 2020.

The 2024 modification assessment report

38. In relation to s 4.55(2) of the EPA Act, the 2024 modification assessment report stated that the proposed modification was “substantially the same development”, and that the proposed modifications were not considered to result in a development that would fundamentally alter the original approved development. The report stated under the heading “Notification and Consideration of Submissions” that the “owners of adjoining and likely affected neighbouring properties were notified of the proposed development in accordance with the Randwick City Community Engagement Strategy”, and set out the following in relation to the joint submission received on behalf of the residents of 10, 17, 4 and 2 Hamel Road, Matraville:

39. The 2024 modification assessment report stated that the property had been inspected and that the application had been assessed having regard to s 4.15 of the EPA Act, and included a table setting out “‘Section 4.15 matters for consideration’” and the assessment officer’s “Comments”. The table is reproduced below (emphasis added):

40. The 2024 modification assessment report concluded that the modification application was recommended for approval because (a) the proposed modifications were “considered to result in a development that is substantially the same as the previously approved development” and (b) it would “not result in significant adverse environmental impacts upon the amenity and character of the locality”.

Submissions

Council’s submissions in relation to the applicant’s grounds of review

41. In relation to what it characterised as “factual assertions” that the modification application did not comply with section 3.3.3 of Randwick DCP 2023, did not demonstrate that compliance with section 3.3.3 was not required, did not address the existing predominant rear set back, did not address the loss of privacy and overshadowing of neighbouring properties, and did not address overcrowding and overdevelopment of the property, Council submitted that it was “for the assessment to address these things not the application itself”. Further, the development as approved did comply with section 3.3.3, and the assessment did address the matters in (b)-(d) of paragraph 12 of the applicant’s grounds.

Paragraphs 14(b) and (c) and (d) of the applicant’s grounds of review

42. Council submitted that the grounds raised in paragraphs 14(b) and (c) of the applicant’s further amended summons could be dealt with together as they were misconceived for similar reasons. As ss 3.42 and 4.15(3A) of the EPA Act make plain, the provisions of a development control plan do not contain statutory requirements, and must be applied flexibly.

43. The applicant’s complaint in paragraph 14(b) and (c) was tantamount to saying that Council should not have applied the controls in section 3.3.3(ii) of Randwick DCP 2023 flexibly. This would be in breach of s 4.15(3A)(b) of the EPA Act which provides that if the provisions of a DCP set standards with respect to an aspect of the development and the development application does not comply with those standards, the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. The statutory provisions governing development control plans were submitted to be “consistent with high authority” on the application of development control plans. ^[1]

    1. Hooper v Port Stephens Council & Anor [2010] NSWCA 368 at [10] (Tobias JA, Handley AJA and Sackville AJA agreeing) citing Zhang v Canterbury City Council (1999) 105 LGERA 18; [1999] NSWLEC 209 at [26] (Talbot J).

44. In any event, Council submitted, it did consider the relevant controls and undertook the merit assessment required by them. It was simply the case that the applicant was dissatisfied with the result of that assessment.

45. At the hearing on 14 February 2025, the applicant did not press paragraph 14(d) of the further amended summons.

Applicant’s submissions in relation to Council’s alleged failure to consider the relevant development controls

46. The applicant submitted that in assessing the modification application under Randwick LEP, Council should also have assessed the modification application under Randwick DCP 2023.

47. The applicant referred to the 2024 modification assessment report which stated in relation to compliance with s 4.15(1)(a)(iii) of the EPA Act (which specifies the mandatory consideration of any development control plan in the determination of a development application):

The development remains compliant with the objectives and controls of the Randwick Comprehensive DCP 2013, including the site coverage requirement, the previous landscaping nexus, visual privacy, and overshadowing.

48. In relation to Randwick DCP 2023, in operation at the time of the determination of the modification application, the applicant referred to the following specific development controls:

1. section 2.5 Deep soil permeable surfaces; and

2. section 3.3.3. Rear setbacks.

49. In relation to section 2.5 of Randwick DCP 2023 and deep soil permeable surfaces, the applicant submitted as follows:

1. the subject site land size is 569m²;

2. the modification application proposed deep soil permeable surfaces of 32.38% and stated “[c]ompliant” in the statement of environmental effects;

3. the modification application was not compliant with the requirement of section 2.5 of Randwick DCP 2023; and

4. Council failed to consider the requirements of section 2.5 and erroneously stated in the assessment in relation to s 4.15(1)(a)(iii) of the EPA Act that the modification application was compliant with Randwick DCP 2023.

50. In oral submissions, the applicant said in relation to the treatment of deep soil permeable surfaces in the modification application:

…the ratio has changed, its 40%. The application says compliant, although it is not. The council decision, without specifying any reasons as to why the compliance is not required, simply confirms that the application is compliant. … There is clearly an error in council's decision as to saying that the application is compliant.

What I don't know is whether that error comes from failing to look at the relevant control, failing to read the relevant control section, ignoring the relevant control section, or I don't know the reason for this error, but it is clearly an error. If the council says that it has been somehow considered, then there [is] no reasoning provided as to why this compliance has not been required. Given their approach at the original application, there is no grounds given here as to why they would not require the compliance with a clearly stated control in their own decision.

51. Nor, the applicant submitted, was the modification application compliant with the requirement of section 3.3.3(ii) of Randwick DCP 2023 in relation to rear setbacks. In oral submissions, Ms Ross said:

The predominant rear setback is defined as the average of adjacent dwellings on either side of the allotment of the subject block ... you have to look not at the whole of the block anymore, but at these two adjacent properties. And what's much more important, it has to be determined separately for each storey. That has not existed in the previous DCP…

Your Honour, just for relevance of this, 6 Hamel Road and 10 Hamel Road, first stories of those buildings are 15 metres, both of them, are setback. First the ground floor and the first floor. First floors are set out 15 metres from the rear. The modification application proposed eight and has been approved as eight.

52. Ms Ross submitted that the modification application proposed rear setbacks of 8m for the ground and first floor. The rear setbacks of the adjacent dwellings, as set out in the 2022 assessment report, were follows:

53. The applicant referred to submissions received by Council requesting compliance with the predominant rear setback in Randwick DCP 2023. At the hearing, Ms Ross said:

It can't be the average of 15 and 15, here 15, here 15, but in the middle is approved as eight. That's a clear non consideration of this requirement. What I suppose my submission is again, this is the requirement of the new DCP, look at the properties on both sides, what is the average?...

54. Accordingly, the applicant submitted that Council’s assessment failed to consider the issue of “predominant rear set back” as defined in section 3.3.3 of Randwick DCP 2023, “and/or to demonstrate that it was not required”. Therefore, Council failed to properly consider the requirements of section 3.3.3 and erroneously stated in its assessment under s 4.15(1)(a)(iii) of the EPA Act that the development application was compliant. Therefore, Council’s assessment of the modification application was based on errors, and was an improper assessment not in compliance with ss 4.15(1)(a)(iii) and 4.55(3) of the EPA Act.

Council’s submissions in relation to Council’s alleged failure to consider the relevant development controls

55. Mr Astill for Council said that the applicant had a number of times said that “there was no real consideration of these clauses effectively because they weren't strictly enforced.”  Mr Astill submitted that that was a misunderstanding of the obligation to consider.  The obligation to consider “is simply that, to consider the clause”, and  “the relevant clauses were very clearly considered” by Council. 

56. Mr Astill referred to a number of authorities addressing the duty to consider. In Schroders Australia Property Management v Shoalhaven City Council ^[2] (Schroders), Ipp AJA with whom Spigelman CJ and Sheller JA agreed, said at [67]:

67    The terms of Mr Webster’s advice made it crystal clear that the decision was for the Council itself. There is no direct evidence that the councillors, individually, had read Mr Webster’s advice. Nevertheless, material in the possession of the Council will, generally, be treated as being in the possession of the councillors: Minister for Aboriginal Affairs vPeko-Wallsend Limited (1986) 162 CLR 24 at 31 per Gibbs CJ.

2. [2001] NSWCA 74.

57. Mr Astill submitted that Council’s file in this case would “generally” be treated as being in the possession of the decision maker.  Further, the Court was engaged in judicial review, not merits review. In Denman Aberdeen Muswellbrook and Scone Healthy Environment Group Incorporated (INC2200560) v MACH Energy Australia Pty Ltd and Anor, ^[3] in the context of mandatory considerations, Robson J said at [24]-[26] as follows in relation to the duty to consider in s 4.15(1) of the EPA Act:

24. The duty imposed by s 4.15(1) of the EPA Act is, in terms, a duty to take the identified matters “into consideration” as they are “of relevance to the development”. As the duty is a duty “to consider”, a challenge based on an alleged failure to consider “should not be turned into an assessment of the adequacy of the consideration accorded [by the decision-maker] in a particular case” and must not be framed in a way which “encourage[s] a slide into impermissible merit review”: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [35] (Hodgson JA).

25. In Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38 at [23], Gleeson CJ and McHugh J observed that when applying the principles regarding mandatory considerations it may be “significant” to consider the “level of particularity” with which a matter is said to be implicit in a statutory scheme. Moreover, a duty to consider a matter does not carry with it a duty to “refer to every piece of evidence and every contention made” in respect of that subject matter: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46] (French, Sackville and Hely JJ).

26. … It is trite to note that caution has been suggested by the High Court in relation to the use of labels such as “active intellectual process” and/or “proper, genuine and realistic consideration” as there is a risk that the use of labels can readily shade into claims about arguments having been resolved incorrectly because such claims were misunderstood or not really grappled with, which tends towards merit review: Ceerose at [57].

3. [2024] NSWLEC 86.

58. The fact that there was material in Council’s file “that deal[t] with all of these matters” and that they were “expressly referred to in the assessment report” shows that the person who made the decision under delegation had regard to the “relevant matters”.

59. In relation to the applicant’s complaint concerning section 2.5 of Randwick DCP 2023, Council submitted that there was no mention in the applicant’s summons of deep soil permeable surfaces in section 2.5 and as no application to amend was foreshadowed, let alone made or granted, this matter had not been addressed in Council’s written submissions. Mr Astill said that the applicant “seemed” to have submitted that “because there was a breach, then the council could not have come to the view that it did”, and submitted that that was “trespassing into the unreasonableness allegation” which had never been pleaded. Mr Astill submitted that section 2.5 of Randwick DCP 2023, including its substantive requirements, was referred to in multiple documents, including the applications, objections and assessment reports.

60. In relation to the complaint that Council failed to consider the requirements of section 3.3.3(ii) of Randwick DCP 2023, Council submitted that section 3.3.3(ii) and its substantive requirements were referred to in multiple documents, including the relevant applications, objections and assessment reports:

1. the written submission dated 2 November 2021 made by the applicant (and others) in relation to the original development application which included:

1. reference to the perceived inadequate rear setback of the second storey and asserting inconsistency with section 3.3.3(ii) of Randwick DCP 2023 which was quoted in full;

2. reference to impacts on privacy and amenity; and

3. further reference to section 3.3 and perceived inadequate rear setback;

2. Council’s assessment report dated 28 July 2022 in relation to the original development application which included:

1. reference to the submission of 2 November 2021, and identified issues including consistency with character, setbacks and privacy;

2. under the heading “Key Issues and areas of non-compliance” extensive discussion of section 3.3.3, including subsection (ii); and

3. a summary table referring to section 3.3.3, and back to the “Key issues” part of the report;

3. the joint submission dated 15 November 2023 in relation to the modification application which raised similar issues as the 2 November 2021 submission, including:

1. objection to the “length” (that is, lack of adequate rear setback) of the proposed dwellings;

2. reference to section 3.3.3(ii) which was again quoted in full, including a statement that the proposal is non-compliant, inconsistent with surrounding area, and requesting an increase to 12m of the setback at first floor;

4. the 2024 modification assessment report which referred to the joint submission and the issues raised in it; and

5. a new condition 16(d) showing “clear consideration of privacy and amenity to adjoining residents”.

61. Council submitted that the Court is not required to construe the material minutely and finely with an eye keenly attuned to the perception of error. ^[4] The applicant’s complaint was that Council had come to a different view than the applicant on the merits.

Applicant’s submissions in reply in relation to alleged failure to properly consider the relevant development controls

4. Minister v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

62. In reply, the applicant submitted that the controls in Randwick DCP 2013 and Randwick DCP 2023 were “substantially and materially different”.

63. In relation to minimum deep soil permeable surfaces for a site area of 451 to 600m², the controls were as follows:

2013 Randwick DCP	30% of site area
2023 Randwick DCP	40% of site area

64. The applicant submitted that the 2024 modification assessment report:

1. stated that “the development remains compliant with the RDCP 2013” which was an error as the development clearly did not comply (the modification application specifying “32.38% of the site area for Deep Soil surfaces”);

2. failed to address the non-compliance with section 2.5 of Randwick DCP 2023, there being no assessment or mention of the relevant control and the non-compliance of the modification application; and

3. failed to provide any reasons as to why compliance with section 2.5 of Randwick DCP 2023 was not required, there being no discussion as to why the development should not comply with the 40% ratio.

65. The applicant submitted that the matter in (1) was a manifest error on the face of the relevant documents, and the matters in (2) and (3) were “simply missing” from the modification assessment. Further, it was clear that Council’s assessment of the modification application was based on an error in that Council failed to apply the requirement of section 2.5 in Randwick DCP 2023 or to provide any reasons as to why compliance with that section was not required.

66. In relation to rear setbacks, section 3.3.3(ii) of Randwick DCP 2013 required the provision of increased setbacks over the minimum setbacks required by (i), being 25% of allotment depth or 8m whichever is the lesser, or a demonstration that it is not required having regard to specified matters including existing predominant rear setback line in the subject urban block, with “existing predominant rear setback on the urban block” which was not defined in Randwick DCP 2013. Section 3.3.3 of Part C1 of Randwick DCP 2023 set “new and very specific controls” by defining "existing predominant setback", and how it is to be determined as follows:

Definition: the predominant rear setback is defined as the average of adjacent dwellings on either side of the allotment and is determined separately for each storey.

67. Thus, the applicant submitted, there was no definition in Randwick DCP 2013 of the predominant rear setback which referred to the average of adjacent dwellings on either side of the allotment, and did not require the rear setback to be considered separately for each storey. By contrast, Randwick DCP 2023 had “quite deliberately become more prescriptive (in the attempt to control overcrowding and overbearing developments) in tandem with the Randwick LEP 2012, which allowed subdivision of the smaller parent lots into Torrens title developments.” The controls in section 3.3.3 of Part C1 of Randwick DCP 2023 did not exist in Randwick DCP 2013, and were not, and could not have been, considered by Council in determining to grant consent to the development in 2022. These new controls should have been considered by Council in its assessment in 2024, but were not. The modification assessment report:

1. stated that "the building complies with the building setback", an error as the modified building did not comply;

2. stated that “the development remains compliant with the RDCP 2013”, an error as the development did not comply with section 3.3.3(ii) of Randwick DCP 2023;

3. failed to address the non-compliance with section 3.3.3(ii) of Randwick DCP 2023, the assessment not containing any consideration of or even a reference to the rear setbacks of the adjacent dwellings and no consideration of the setbacks for each storey (ground and first floor);

4. failed to demonstrate why compliance with the new section 3.3.3(ii) was not required, there being no discussion of why the development should not comply with the rear setback of the adjacent buildings, especially for separate storeys; and

5. lacked any mention, let alone assessment, of any setbacks separately for the ground and first storeys, as required by section 3.3.3 of Randwick DCP 2023.

68. As to Council’s “attempts” to rely on s 4.15(3A)(b) of the EPA Act (which provides for the consent authority to be flexible in applying provisions in a development control plan that set standards with respect to an aspect of the development and the development application does not comply with those standards, and to allow reasonable alternative solutions to achieve the objects of those standards for dealing with that aspect of the development), Council, in its assessment, did not consider any “alternative solutions”, for example, different rear setbacks for the ground and first storeys of the modified development. Instead, Council “simply ignored” section 3.3.3 of Randwick DCP 2023 altogether.

Conclusion in relation to Council’s alleged failure to properly consider the relevant development controls

69. In Zhang v Canterbury City Council ^[5] Spiegelman CJ (Meagher and Beazley JJA agreeing) held at [75] and [77] (in relation to former s 79C of the EPA Act) that that the provisions of a development control plan need to be taken into consideration in determining a development application as a “fundamental element” in or a “focal point” of the decision-making process ^[6] :

[75] The consent authority has a wide ranging discretion — one of the matters required to be taken into account is ‘the public interest’ — but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a “fundamental element” in or a “focal point” of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.

…

[77] There was a relevant and applicable “standard” which he [the Commissioner whose decision was subject of the appeal] was obliged to “take into consideration”. It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive “standard” in this way.

5. (2001) 51 NSWLR 589; [2001] NSWCA 167.

6. Tomasic v Port Stephens Council [2021] NSWLEC 56 at [34] (Preston CJ of LEC). See also Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163 at [206] (Adamson JA writing separately but agreeing with Ward P and Price AJA).

70. While the consent authority is to “take into consideration” any provision of any development control plan in accordance with s 4.15(1)(a)(iii) of the EPA Act, in Fabcot Pty Ltd v Newcastle City Council ^[7] Robson J noted at [68] that s 4.15(3A) of the EPA Act effectively prevents more onerous standards from being imposed where those standards are otherwise met, and provides that if provisions of a development control plan set standards with respect to an aspect of the development and the development application does not comply with those standards, the consent authority is to be flexible in applying those provisions and allowing reasonable alternative solutions that achieve the objects of those standards.

    7. [2025] NSWLEC 35.

71. It is undoubtedly correct, as the chief judge has observed in relation to s 4.15(3A), that although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process there may be alternative solutions to achieve the object of the provisions. ^[8] In the circumstances here, however, there is no evidence that Council, the consent authority, apprehended, let alone engaged with the relevant provisions of Randwick DCP 2023, that is section 2.5 in relation to deep soil permeable surfaces and section 3.3.3 in relation to rear setbacks.

    8. Tomasic v Port Stephens Council at [36] (Preston CJ of LEC).

72. Whilst it is correct, as submitted by Council, that the Court is not required to construe the material relied on by Council minutely and with an eye keenly attuned to the perception of error, there is nothing in the material relied upon by Council that is capable of suggesting that in its determination of the modification application, made on 1 March 2024, Council took into consideration the relevant controls in Randwick DCP 2023 as required by s 4.15(a)(iii) of the EPA Act.

73. It is correct that Council received submissions from the applicant and neighbouring residents to the effect that the modification application did not comply with the controls in Randwick DCP 2023 in relation to deep soil permeable surfaces and rear setbacks. However, there is nothing in Council’s assessment that demonstrates an appreciation of the differences in the controls in sections 2.5 and 3.3.3 of Randwick DCP 2023 and those in Randwick DCP 2013 in relation to deep soil permeable surfaces and rear setbacks. The 2024 modification assessment report simply stated in relation to s 4.15(1)(a)(ii) of the EPA Act that “[t]he development remains compliant with the objectives and controls of the Randwick Comprehensive DCP 2013, including the site coverage requirement, the previous landscaping nexus, visual privacy and overshadowing.”

74. Where there is a failure to consider a mandatory consideration in s 4.15 (previously s 79C) of the EPA Act, the result is the invalidity of the decision, here the modification decision. There may be a presumption that a council’s file is taken to be within the constructive knowledge of Council officers, however, there is no record of Council acknowledging the requirements of sections 2.5 and 3.3.3 of Randwick DCP 2023 in relation to deep soil permeable surfaces and that it consider the average of adjacent dwellings on either side of the allotment and determine it separately.

75. As Council failed to consider these relevant matters, the result is invalidity of the modification decision. ^[9]

    9. Nicholas Tang Holdings Pty Ltd v Berbic and Wingecarribee Shire Council [2024] NSWLEC 95 (Robson J); Platford v van Veenendaal and Shoalhaven City Council (2018) 229 LGERA 101; [2018] NSWLEC 27 (Preston CJ of LEC); Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (Basten Giles and Macfarlan JJA).

76. It is no answer to rely on s 4.15(3A)(b) of the EPA Act which provides:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development,

77. In order to be flexible in applying the provisions of a DCP that relate to the development and allow reasonable alternative solutions, the consent authority must have turned its mind to whether the development application complies with provisions of a DCP that set standards with respect to an aspect of the development. Here, there was no evidence that the consent authority was aware that the development application may not have complied with standards set by provisions of Randwick DCP 2023, and Council in its assessment did not consider any alternative solutions.

78. The 2024 modification assessment report was in error in stating that the development remained compliant with Randwick DCP 2013.

79. The provisions of Randwick DCP 2023 in relation to deep soil permeable surfaces and rear setbacks were fundamental elements of the decision-making process. Council did not take them into consideration. Nor did Council consider any alternative solutions to achieve the objects of sections 2.5 and 3.3.3 of Randwick DCP 2023. The result is that the modification decision is invalid.

(2) “Assessment of the Modified Development as ‘substantially the same’”

Applicant’s submissions in relation to “Assessment of the Modified Development as ‘substantially the same’”

80. Having determined that the modification decision is invalid by reason of Council’s failure to consider the relevant development controls, it does not strictly arise to consider the applicant’s complaint in relation to whether the modifications resulted in a development that will fundamentally alter the originally approved development. Nonetheless, I will state my reasons for dismissing this ground shortly.

81. In relation to s 4.55(2)(a) of the EPA Act, and her complaint in relation to the statement in the modification assessment report that the “proposed modifications are not considered to result in a development that will fundamentally alter the originally approved development”, the applicant submitted that Council should have rejected the modification application on the basis that the development the subject of the modification application was not the same or substantially the same development as the development for which consent was originally granted. When considering whether the proposed modified development was substantially the same as the development for which consent was originally granted, an assessment of the “material and essential features” or “critical elements” of the proposed modified development should have been made by Council. ^[10]

    10. Citing Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [41] (Preston CJ of LEC); Arrage v Inner West Council [2019] NSWLEC 85 (Preston CJ of LEC).

82. In this case, the applicant submitted, the “material and essential features” of the proposed modified development were that:

1. whilst at the time of the modification assessment, Council was in receipt of a subdivision development application in relation to the property, as well as the modification application (both lodged on 28 September 2023), the original development consent was simply for the construction of a dual occupancy development;

2. changes to the development controls had occurred prior to the date of lodgement of the modification application and the concurrent subdivision development application; and

1. the modified application was non-compliant with the relevant development controls in several aspects, whereas the original development was compliant with the then applicable development controls.

83. The applicant referred to Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council (Hunter Development Brokerage) where Duggan J observed that judicial interpretations of the meaning of the statutory language of “substantially the same” have approved the formulation “essentially or materially or having the same essence”. ^[11] Her Honour concluded that a modification application to have an electricity generating power plant use a supplementary source of fuel was not substantially the same development. In the present case, the applicant submitted, Council should have reviewed the modification application and the subdivision development application together (which the applicant submitted were both lodged at the same time) which, together, proposed a development of two separate Torrens title lots, instead of a simple dual occupancy development. The subdivided Torrens title lots development was submitted to be a substantially different development “in essence” from a dual occupancy, including in relation to ownership and the ability to sell and develop each property further. Consequently, the proposed subdivided and modified Torrens title lots development was not “substantially the same” as the originally approved dual occupancy development. Moreover, the newly proposed development of two separate Torrens title lots no longer complied with the relevant development controls, and it could not be said that a non-complying development has the same “essence” as the complying development.

    11. [2022] NSWLEC 64 at [80] (Duggan J).

84. Accordingly, the applicant submitted, Council erred in its assessment of the modification application as “not resulting in a development that will fundamentally alter the originally approved development”. In oral submissions, Ms Ross said:

…What we're seeing here is that the compliant development had been more defined into non compliant development and considered as substantially the same development.

I do not think that that is the intent of the legislation, intent of the process of the council's controls. That's another factor why I submit that the development was not substantially the same as they originally approved…

Council’s submissions in relation to “Assessment of the Modified Development as ‘substantially the same’”

85. To the extent that the applicant contended that because subdivision was also now proposed, the essence of the development had changed, Council submitted that any such contention would be rejected as the subdivision application was a separate application, and not any part of the modification application or the modification decision. Mr Astill said that it was “an irrelevancy that other applications have been approved that considered in their totality resulted in a different development application”. The constraint was only on a modification of the approved development.

Conclusion in relation to “Assessment of the Modified Development as ‘substantially the same’”

86. I accept Council’s submission that the subdivision application was a separate application and not part of the modification application. Accordingly, it does not arise to be considered in these Class 4 proceedings. I reject this ground of challenge to the modification decision.

Additional consideration for the Court – matter of fairness

Applicant’s submission in relation to “Additional consideration for the Court - matter of fairness”

87. In her written submissions, the applicant raised an “additional consideration for the Court – matter of fairness”. The applicant said that on 19 December 2018, the owners of 6 Hamel Road (a property adjacent to that of the applicant) lodged DA968/2018 for the demolition and construction of two duplexes. DA 968/2018 proposed 8m rear setbacks for the ground and first storeys. An opposing submission was lodged in respect of the development which, amongst other things, opposed the first storey setback of 8m. The third and fourth respondents had signed the submission, opposing the extension of the first storey rear setback of 8m.

88. DA 968/2018 was not accepted by the Council and modified plans were lodged. In summary, the development was changed, with rear setbacks of:

1. ground floor: 11.4m; and

2. first floor: 15.67m;

and, in this form, approved by Council on 2 March 2020.

89. The applicant submitted that given that the third and fourth respondents had themselves opposed the first storey rear setbacks of 8m on the neighbouring property, they should not now be allowed to extend their own first storey rear setback to 8m.

Council’s submissions in relation to “Additional consideration for the Court - matter of fairness”

90. Council submitted that the applicant had raised another point not previously raised and the Court should not permit any amendment to the summons at this stage. Moreover, the complaint in relation to fairness concerned development on a different property, 6 Hamel Road. Whether the applicant considered any of the matters concerning 6 Hamel Road to be “fair” was irrelevant to the legality of the modification decision which concerned 8 Hamel Road.

Conclusion in relation to “Additional consideration for the Court - matter of fairness”

91. I accept Council’s submission that matters pertaining to 6 Hamel Road, a property adjacent to that of the applicant, are irrelevant to the question of the lawfulness of the modification decision concerning 8 Hamel Road. Even if I permitted the applicant to further amend her summons, I would reject this ground of challenge.

Costs

92. In class 4 judicial review proceedings, the starting point is that costs usually follow the event by virtue of r 42.1 of the UCPR. Here, the applicant has been successful in one of her grounds of challenge to the modification decision.

93. I will allow Council 7 days from the date of this judgment to apply to my chambers for an alternate costs order. Otherwise, Council is to pay the applicant’s costs of the proceedings.

Conclusion and orders

94. The Court makes the following orders:

1. Declare the determination of modification application 634/2021/A by Randwick City Council on 1 March 2023 in relation to development on Lot 32 in DP 36250 known as 8 Hamel Road, Matraville, invalid.

2. Unless the second respondent notifies the Court within 7 days of the publication of these reasons, that is by 2 September 2025, that it seeks to be heard on the question of costs, the second respondent to pay the applicant’s costs of the proceedings.

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Endnotes

Decision last updated: 27 August 2025