Land and Environment Court New South Wales Medium Neutral Citation: Samavi v Randwick City Council [2021] NSWLEC 1202 Hearing dates: Conciliation conferences on 25 February 2021, and 10, 15, and 17 March 2021 Date of orders: 27 April 2021 Decision date: 27 April 2021 Jurisdiction: Class 1 Before: Rappoport AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application DA/707/2018/A is approved subject to the modified conditions 2(a) and 2(c) and 2(n) contained at Annexure 'A'. (3) Development consent DA/707/2018 is modified subject to the consolidated conditions of consent annexed and marked 'B'. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between parties – orders – conditions – construction Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, s 34(3) Randwick Local Environmental Plan 2012 Texts Cited: Randwick Comprehensive Development Control Plan 2013, Part C2 Category: Principal judgment Parties: Hamid Samavi (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2020/330946 Publication restriction: No Judgment 1. COMMISSIONER: Hamid Samavi is the Applicant in relation to the subject site at 68 Beach Street, Coogee NSW 2034 (the Site) to which consent was refused by Randwick City Council (the Respondent). The application which comprises modifications to Development Application DA/707/2018, by way of a s 4.55(2) application comprises; a modification of approved development to amend condition 2(a) pertaining to the height of the building; condition 2(c) pertaining to the deletion of the reference to the second-floor balcony; and the inclusion of condition 2(n) to amend the size of the second-floor balcony. The original consent pertained to the demolition of existing structures, the construction of a three-storey residential flat building containing five dwellings, semi-basement parking for nine vehicles including the use of a car stacker, landscaping and associated works. The appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeks to modify the above elements. 2. The modifications comprise amendments to the conditions as set out in Annexure "B" to the s34 agreement. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 February, and 10, 15 and 17 March 2021. I presided over the conciliation conference. 1. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 1. A signed agreement prepared in accordance with s 34(3) of the LEC Act was subsequently filed with the Court on 24 March 2021 (Applicant). 2. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 3. 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. 4. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed as follows: 1. This is an appeal pursuant to the provisions of s 8.9 of the EPA Act against the refusal of Modification Application No. MOD2020/0131 to modify Development Consent DA/707/2018 (the Development Consent) relating to the Site. 2. The modification application was lodged by Hamid Samavi with the consent in writing from the owners of the Site. 3. The modifications comprise amendments to the conditions as set out in Annexure "A" to the s34 agreement. 4. The modification application was notified in accordance with the Environmental Planning and Assessment Regulation 2000 and the Randwick Comprehensive Development Control Plan between 13 January 2020 and 28 January 2020. 5. The respondent's legal representative has continued to communicate with the adjoining owners through the conciliation process. 6. The concerns raised by the adjoining owners have been taken into account and the parties have responded to those concerns in the amended conditions of consent. 1. To the extent that it is applicable to a modification application, the parties agree that the development as modified will be characterised as a residential flat building which is permissible with consent in accordance with the Land Use Table relating to Zone R3 Medium Density Residential in Randwick Local Environmental Plan 2012 and the proposed use is compatible with the objectives of the R3 zone. The parties have taken into consideration such of the matters referred to in s 4.15(1) of EPA Act as are of relevance as well as the reasons given by Council for the grant of the Development Consent. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Modification application DA/707/2018/A is approved subject to the modified conditions 2(a) and 2(c) and 2(n) contained at Annexure 'A'. 3. Development consent DA/707/2018 is modified subject to the consolidated conditions of consent annexed and marked 'B'. ………………………. P Rappoport Acting Commissioner of the Court Annexure A (85357, pdf) Annexure B (338546, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2021