Land and Environment Court New South Wales Medium Neutral Citation: Burgess-Hoar v Randwick City Council [2023] NSWLEC 1333 Hearing dates: Conciliation conference held 23 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent DA/508/2020 is modified by consent to Modification Application DA/508/2020/B, in the terms set out in Annexure A. (3) Development Consent DA/508/2020 is subject to the consolidated conditions as described in Annexure B. Catchwords: MODIFICATION APPLICATION – changes to access relating to approved dwelling – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, s 98, 113 Land and Environment Court Act 1979, 34AA Mosman Local Environment Plan 2012 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Randwick Development Control Plan 2012 Randwick Council's Community Participation Plan 2018 Category: Principal judgment Parties: Burgess-Hoar (Applicant) Randwick City Council (Respondent) Representation: Counsel: L Sims (Applicant) V McGrath (Solicitors)(Respondent) Solicitors: Bick & Steele (Applicant) Randwick City Council (Respondent) File Number(s): 2023/122559 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Modification Application DA/508/2020/B (the MA) by Randwick City Council (hereafter the Council), which relates to an existing consent DA/508/2020 for alterations and additions to an existing building on Lot 3 in Deposited Plan (DP) 15808, also known as 88 Brook Street, Coogee (hereafter the site). 2. The original Development Application DA/508/2020 (the DA) was approved by the Randwick Local Planning Panel on 14 October 2021. The MA seeks to reinstate a version of a historic garage, with revised access, front fencing and landscaping. The site contains the historic Smithfield Grange, a building that the DA intends to return to use as a single dwelling. 3. The applicant appealed against the deemed refusal of the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by request of the parties. The conciliation conference was held by Microsoft Teams before myself as the Duty Commissioner. 5. The Council agreed for the applicant to amend the plans and documents, that amend the MA, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 6. At the conciliation conference, the parties explained they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court after expert consultation and design amendments. 7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its power under s 4.55(2) of the EPA Act, to amend Development Application DA/508/2020, as described in Annexure A, with consolidated conditions in Annexure B. 8. The requirements of s 4.55(2)(a) of the EPA Act are satisfied. The parties agree that the modification is substantially the same as originally approved under the DA, specifically that there are no assessed changes to character of the local area or the existing historic item. 9. The parties confirm that the development is not integrated development, pursuant to s 4.46 of the EPA Act, and that the requirements of 4.55(2)(b) are not relevant for consideration. 10. The Council confirms that the notification of the MA was made pursuant to the requirements of the Randwick Development Control Plan 2013 Council's Community Participation Plan 2018, and received no submissions. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied. 11. The parties agree that the amendment to the MA address all relevant jurisdictional requirements. There are no substantive changes to the built form or scale of the approved historic dwelling, and the garage forms a complementary structure. The relevant provisions of the Randwick Local Environment Plan 2012 are addressed. The proposed development is within lands that have historically been used for residential purpose and no trees of significance will be removed, addressing the requirements of the State Environmental Planning Policy (Resilience and Hazards) 2021 and State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. A BASIX certificate relevant to the amended design is described in the conditions of consent, addressing the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The requirements of ss 4.15(1) and 4.55(3) of the EPA Act area addressed. 12. I am satisfied that the requirements of s 4.55, and in particular subss (2) and (3) have been addressed. 13. I am satisfied that based on the evidence before the Court that there are no jurisdictional impediments to the agreement seeking amendments to the MA and modification to the DA, as described in Annexures A and B. Council has undertaken the appropriate merit assessment of the amended MA. The appeal for Modification Application DA/508/2020/B satisfies the requirements of s 4.55(2) of the EPA Act to grant consent to modify the DA. 14. The parties confirm that the MA relates to works contained within the site and the applicant is the owner of the site, pursuant to s 98(1) of the EPA Reg. 15. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 16. The Court notes: 1. That the Randwick City Council, as the relevant consent authority agrees, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Modification Application DA/508/2020/B relating to modification of development consent DA/508/2020, as described in condition 1 of Annexure A. 2. That the applicants have filed the amended modification application with the Court on 22 June 2023. 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA/508/2020 is modified by consent to Modification Application DA/508/2020/B, in the terms set out in Annexure A. 3. Development Consent DA/508/2020 is subject to the consolidated conditions as described in Annexure B. S Bish Commissioner of the Court ********** Annexure A Annexure B 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: 29 June 2023