Douroudis v Randwick City Council [2022] NSWLEC 1648

Douroudis v Randwick City Council [2022] NSWLEC 1648

The Court upheld the appeal because the amended modification, limited to the extension of an approved elevator and a glazed annex to an approved roof terrace with the lateral connection removed, was substantially the same development as the approved dwelling alteration, did not require cl 4.6 variation approval, and would produce only a minor projection with acceptable streetscape, view, overshadowing, setback, roof form and privacy impacts when assessed against the relevant planning controls.

Jurisdiction
Australia
Judgment Date
23 November 2022
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application Da/761/2012/d Seeking Deletion of Condition 2 a / Determination After Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and the Parties Agreed to Disposition Under S 34 Aa(2)(b)(ii)
Outcome
Appeal upheld; Development Consent No. DA/761/2012 modified in the terms in Annexure A.
Legal Topics
['modification Application' 'substantially the Same Development' 'floor Space Ratio Development Standard' 'randwick Local Environmental Plan 2012' 'randwick Development Control Plan 2013' 'view Impact' 'overshadowing' 'privacy' 'roof Design' 'side Setbacks' 'external Wall Height' 'basix']
['planning and Environment Law' 'development Consent Modification'] ['modification Application' 'substantially the Same Development' 'floor Space Ratio Development Standard' 'randwick Local Environmental Plan 2012' 'randwick Development Control Plan 2013' 'view Impact' 'overshadowing' 'privacy' 'roof Design' 'side Setbacks' 'external Wall Height' 'basix']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application Da/761/2012/d Seeking Deletion of Condition 2 a / Determination After Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and the Parties Agreed to Disposition Under S 34 Aa(2)(b)(ii)

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified' 'Whether the amended proposal is consistent with the objectives of the R2 Low Density Residential zone under the Randwick Local Environmental Plan 2012' 'Whether non-compliance with floor space ratio, external wall height, side setback, roof design and privacy controls warranted refusal' 'Whether cl 4.6 of the Randwick Local Environmental Plan 2012 applied to the modification application' 'Whether the proposal caused unacceptable view loss, overshadowing, visual bulk or privacy impacts']

Ratio Decidendi

The Court upheld the appeal because the amended modification, limited to the extension of an approved elevator and a glazed annex to an approved roof terrace with the lateral connection removed, was substantially the same development as the approved dwelling alteration, did not require cl 4.6 variation approval, and would produce only a minor projection with acceptable streetscape, view, overshadowing, setback, roof form and privacy impacts when assessed against the relevant planning controls.

Court Disposition

Appeal upheld; Development Consent No. DA/761/2012 modified in the terms in Annexure A.

Orders

  • ['The Applicant is granted leave to rely on amended plans A-101 Site Plan Rev J, A-202 First Floor Plan Rev J, A-203 Roof Plan Rev J, A-300 South Elevation Rev J, A-301 West Elevation Rev J, A-302 East Elevation Rev J, A-303 North Elevation Rev J and A-306 Section CC Rev J, all prepared by Studio Johnston and dated...