Lee v Randwick City Council [2021] NSWLEC 1200

Lee v Randwick City Council [2021] NSWLEC 1200

The amended proposal, including removal of specified unauthorised work, reduction and articulation of the rear western facade, planter box treatment, and privacy treatments to windows, adequately reduced bulk and overlooking impacts, was compatible with the locality and R2 zone objectives despite existing non-compliance with floor space ratio and height controls, and appropriately required completion of works before issue of the building information certificate and subdivision steps; accordingly the appeals were upheld and the relevant consent, modification approval and direction to issue a building information certificate were warranted on agreed conditions.

Jurisdiction
Australia
Judgment Date
12 March 2021
Procedural Posture
Class 1 Appeals Concerning a Building Information Certificate Application, a Development Application for Use, and a Modification Application for Subdivision Consent / Hearing After Conciliation Under Ss 34 and 34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
All three appeals were upheld; development consent was granted, the modification application was approved, and the Council was directed to issue a building information certificate after satisfaction that required works and notification had occurred.
Legal Topics
['building Information Certificate' 'development Consent' 'modification Application' 'dual Occupancy' 'unauthorised Building Works' 'overlooking' 'bulk and Scale' 'floor Space Ratio' 'building Height' 'subdivision']
['planning and Environment Law' 'development Control' 'local Government'] ['building Information Certificate' 'development Consent' 'modification Application' 'dual Occupancy' 'unauthorised Building Works' 'overlooking' 'bulk and Scale' 'floor Space Ratio' 'building Height' 'subdivision']

Case Brief

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Procedural Posture

Class 1 Appeals Concerning a Building Information Certificate Application, a Development Application for Use, and a Modification Application for Subdivision Consent / Hearing After Conciliation Under Ss 34 and 34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether a building information certificate should be directed for unauthorised works carried out otherwise than in accordance with development consent' 'Whether consent should be granted for use of the unauthorised works as altered and remediated' 'Whether modification of the subdivision consent should be approved so that subdivision certificate and release of subdivision plans occur only after required works are completed' 'Whether the amended proposal adequately addressed impacts from overlooking, visual privacy, bulk, scale, floor space ratio and building height' 'Whether the proposal was compatible with the R2 low-density residential zone objectives and the character of the locality']

Ratio Decidendi

The amended proposal, including removal of specified unauthorised work, reduction and articulation of the rear western facade, planter box treatment, and privacy treatments to windows, adequately reduced bulk and overlooking impacts, was compatible with the locality and R2 zone objectives despite existing non-compliance with floor space ratio and height controls, and appropriately required completion of works before issue of the building information certificate and subdivision steps; accordingly the appeals were upheld and the relevant consent, modification approval and direction to issue a building information certificate were warranted on agreed conditions.

Court Disposition

All three appeals were upheld; development consent was granted, the modification application was approved, and the Council was directed to issue a building information certificate after satisfaction that required works and notification had occurred.

Orders

  • ['In proceedings 2020/194590, the appeal is upheld.' 'In proceedings 2020/194590, the Applicant is to carry out the construction works approved by Condition 1 of development consent number DA/277/2020 at 36-38 Jennings Street, Matraville.' 'In proceedings 2020/194590, the Applicant is to notify the Council in...