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
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
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:
Solicitors:
M Astill (Second Respondent)
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
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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…
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- AGLC
- Ross v Randwick City Council [2025] NSWLEC 89
- Case
- [2025] NSWLEC 89
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the Council's determination of the modification application was lawful and correctly made. Specifically, the court needed to consider whether the Council had acted within its powers under the relevant planning legislation and whether it had adhered to proper procedural requirements. The applicant argued that the Council failed to properly consider the impact of the development on the surrounding area and did not adequately justify its decision.
The court found that the Council's determination was invalid due to significant procedural errors and a failure to adequately consider key factors. The Council did not properly notify the relevant parties of the modification application, and it did not provide a detailed justification for its decision. Additionally, the court found that the Council's decision did not align with the planning objectives outlined in the local environmental plan. Consequently, the court declared the Council's determination invalid and ordered that it be set aside. Unless the Council indicates within seven days of the publication of these reasons that it wishes to be heard on the question of costs, it must pay the applicant’s costs of the proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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