Land and Environment Court New South Wales Medium Neutral Citation: Simmattown Pty Ltd v Randwick City Council [2019] NSWLEC 1415 Hearing dates: Conciliation conference on 23 August 2019 Date of orders: 04 September 2019 Decision date: 04 September 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [12] below Catchwords: MODIFICATION APPLICATION – conciliation conference – heritage – visual amenity – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental plan 2012 Category: Principal judgment Parties: Simmattown Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: Dr J Smith (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: JDK Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/369606 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal by Randwick City Council (hereafter the Council) of Modification Application (MA) DA/427/2016/B, which seeks to modify Condition 21 of an existing consent for installation of bi-fold windows in the Sports Bar area as it relates to mounting of television screens on Lot 1 DP 872553, also known as 212 Arden Street, Coogee (hereafter the Site). 2. The site is currently occupied by a public hotel, known as the Coogee Bay Hotel. 3. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 4. The Court consented to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 August 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to MA DA/427/2016/B, which modifies consent DA/427/2016. 6. Pursuant to s 34(3) of the LEC Act 1979, 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 function under s 4.55(2) of the EPA Act 1979 to grant consent to the amended MA (DA/427/2016/B) with conditions. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(2) of the EPA Act 1979, as consistency with: Randwick Local Environmental Plan 2012 (RLEP). The parties agree that the amended plans and proposed conditions of consent relate to the merits of the proposal. 8. The parties agree that the relevant provisions of the RLEP are addressed to their satisfaction by the amended plans to the MA under appeal. The parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contention as it relates to the heritage significance standard, specifically cl 5.10(4) of the RLEP. The proposed treatment of the windows and orientation of the screens satisfies the objectives of the standard. 9. The parties agree that the proposed modification, which is limited to the bi-fold windows treatment at the front of the site and position of screens in the Sports Bar is substantially the same as already approved. The MA was notified consistent with the RDCP and submissions received during the notification period have been satisfactorily addressed in the amended plan and by the proposed MA conditions of consent. There are no concurrence requirements. 10. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the amended MA, based on the amended plans as provided in the conditions of consent, satisfies the requirements of s 4.55(2) of the EPA Act 1979. 11. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 12. The Court orders: 1. The Applicant is granted leave to rely on the following plan and to amend the modification application pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979: DWG NO. DESCRIPTION PREPARED BY REV DATE DA1001A Condition No. 24A and 24B Sight Plan Humphrey + Edwards Architects + Interior Designers 01 18/06/19 1. The appeal is upheld. 2. Development Consent No. DA/427/2016, originally granted by the Respondent on 14 February 2017 and previously modified on 13 February 2018, for the installation of bi-fold windows in the Sports Bar of the Coogee Bay Hotel facing the Coogee Bay Road frontage on the land at 212 Arden Street, Coogee (Lot 1 in DP 872553) is modified pursuant to section 4.55 of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". 3. As a consequence of Order (3), Development Consent No. DA/427/2016 (as modified) is subject to the consolidated, modified conditions of consent as set out in Annexure "B". ………………………… Sarah Bish Commissioner of the Court Annexure A (114 KB) Annexure B (288 KB) ********** 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: 10 September 2019