Cohen v Randwick City Council [2020] NSWLEC 1497

Land and Environment Court New South Wales

Medium Neutral Citation: Cohen v Randwick City Council [2020] NSWLEC 1497 Hearing dates: Conciliation conference on 12 October 2020 Date of orders: 20 October 2020 Decision date: 20 October 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: (1) The applicant is granted leave to rely upon Plan B02 Rev S drawn by Casey Brown Architecture dated 9 August 2019. (2) The appeal is upheld. (3) Application to Modify Development Application no. DA/899/2016/B is approved subject to the conditions contained in Annexure 'A'. (4) Annexed and marked 'B' is a set of the consolidated version of the conditions of consent, as modified. Catchwords: MODIFICATION APPLICATION – amendment of conditions – conciliation conference – agreement between the parties – orders Category: Principal judgment Parties: Emma Jane Cohen (Applicant) Randwick City Council (Respondent) Representation: Counsel: J Reid (Applicant) V McGrath (Solicitor) (Respondent)

Solicitors: Thomson Geer Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2020/32225 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Emma Jane Cohen (applicant) against the respondent's determination of Modification Application No. DA/899/2016/B to "legitimise the extension of the basement area, conversion of the storeroom to a bedroom and alteration of the driveway" (Modification Application) at 12 Bunya Parade, Coogee (Site). 2. The Modification Application was approved by the respondent on 31 July 2019 subject to the inclusion of condition 67 as follows: "Basement Guest Room 67. No consent is granted for the use of any part of the basement/sub floor area as a guest room, secondary dwelling or any other habitable purpose." 1. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 12 October 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the amended conditions of consent annexed to this judgment. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. The original consent (DA/899/2016) approved the demolition of the previous dwelling and construction of a 3-level dwelling including lower level garage and storage, a plunge pool at the rear, landscaping and associated works. The subject Modification Application approves the extension of the basement areas only. Section 4.55(2) of the EPA Act is satisfied. 2. Pursuant to Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240, the Court may lawfully approve a modification application for building works that have been carried out. 3. As required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the applicant has provided an updated BASIX certificate. 4. The Site is zoned R2 - Low Density Residential under the Randwick Local Environmental Plan 2013 (LEP 2013). Dwelling houses are permissible with consent in the R2 Low Density Residential zone. 5. The dwelling house, as modified by the Modification Application, complies with the maximum height control of 9.5m and the maximum floor space ratio of 0.5:1 in LEP 2013. 6. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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 LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The applicant is granted leave to rely upon Plan B02 Rev S drawn by Casey Brown Architecture dated 9 August 2019. 2. The appeal is upheld. 3. Application to Modify Development Application no. DA/899/2016/B is approved subject to the conditions contained in Annexure 'A'. 4. Annexed and marked 'B' is a set of the consolidated version of the conditions of consent, as modified.