Douroudis v Randwick City Council [2022] NSWLEC 1648

Land and Environment Court New South Wales

Medium Neutral Citation: Douroudis v Randwick City Council [2022] NSWLEC 1648 Hearing dates: 17 November 2022 Date of orders: 23 November 2022 Decision date: 23 November 2022 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [68]. Catchwords: MODIFICATION APPLICATION: alterations and additions to dwelling house development in R2 Low Density Residential zone – whether substantially the same – whether consistent with provision of the Randwick Development Control Plan Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, cl 113 Land and Environment Court Act 1979, ss 34AA, 34, 39 Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.7, 6.11, 6.12 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Peter Douroudis (Applicant) Randwick City Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) S Flanigan (Respondent)

Solicitors: Pikes & Verekers (Applicant) Randwick City Council (Respondent) File Number(s): 2022/234385 Publication restriction: No

Judgment 1. COMMISSIONER: On 5 July 2013, development application no DA/761/2012 for alterations and additions to an existing dwelling house was determined by the grant of consent at 81 Denning Street, South Coogee. 2. Subsequently, an application to modify the consent, DA/761/2012/A, was lodged to seek consent for the addition of a roof terrace, internal changes and addition of a window. The modification application was deemed refused, and an appeal to the Court resulted in agreement under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 19 June 2014. 3. A further modification application, DA/761/2021/B, to modify the consent to permit the reconstruction of existing walls on the southern side of the dwelling, in the same location, was approved on 11 July 2014. 4. On 13 May 2021, a further application to modify the consent, DA/761/2012/C, was approved by the Randwick Local Planning Panel (the Panel). The modification application sought provision of an accessible pathway, modifications to the lobby and stair, addition of a new lift, internal reconfiguration, changes to windows and doors and associated works. 5. In determining the modification application, the Panel imposed condition 2A in the following terms: "Condition 2A. The upper portion of the lift core and new roof above the existing dwelling shall be deleted. The height of the lift core including the associated lobby area shall not exceed RL56.19. Details of compliance are to be submitted to and approved by Council's Manager Development Assessment prior to the issue of Construction Certificate." 1. On 4 April 2022, a further modification application, DA/761/2021/D (the modification application), was lodged seeking that Condition 2A be deleted. 2. On 14 July 2022, the Panel determined to refuse the modification application. 3. On 9 August 2022, the Applicant in these proceedings, Mr Douroudis, filed an appeal in Class 1 of the Court's jurisdiction, under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. On 15 November 2022, the Court, exercising its functions under s 39(2) of the LEC Act, being the function of Randwick City Council as the relevant consent authority under cl 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), agreed to the Applicant amending the development application by architectural plans prepared by Studio Johnson. 5. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the LEC Act on 16 November 2022, which commenced with an onsite view after which the conciliation conference, at which I presided, continued on site. 6. At the conciliation conference, the parties reached in principle agreement as to the matters in contention, subject to the provision of further detail that necessitated the amending of plans and other documents, for which I granted an adjournment. 7. The following day, the Applicant provided the Respondent and the Court with amended plans, an updated BASIX certificate, and a draft agreement in accordance with s 34 of the LEC Act. 8. However, the Respondent advised the Court the following day that the agreement reached at [11] was no longer sustained. The parties advised that they consented to the Commissioner terminating the conciliation conference and disposing of the matter on the basis of what has occurred at the conciliation conference, pursuant to s 34AA(2)(b)(ii) of the LEC Act. 9. The Court directed the Respondent to provide a written statement of contentions that remain in the matter, and for the Applicant to prepare a short written submission in response to the Respondent's statement. 10. The parties complied with the Court's directions and the parties filed an agreement that I dispose of the matter in accordance with s 34AA(2)(b)(ii) of the LEC Act. 11. Accordingly, I terminated the proceedings and now provide my determination on the basis of discussions, and documents produced in the course of the conciliation conference held between the parties.