Theodore v Randwick City Council

Category: Principal judgment

Parties: Jim Theodore (First Applicant)
Anna Vantsos (Second Applicant)
Vesna Trobec (Third Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/202161

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Jim Theodore, Anna Vantsos and Vesna Trobec (together the Applicant), against the refusal of Modification Application DA/592/2023/B (the MA) by Randwick City Council (the Respondent).

2. The MA seeks to modify Development Consent DA/592/2023 (the parent DA), which granted consent for alterations and additions to the existing semi-detached dwelling, including new first and second floor additions, a rear swimming pool, and solar panels on the roof at 166 Beach Street, Coogee (the site).

3. Consent for the parent DA was granted by the Respondent on 12 September 2024.

4. An earlier modification (DA/592/2023/A), seeking to modify the parent DA consent, including annotations to plans to show the existing ground floor wall adjacent to the southern boundary as demolished with a new wall built to same setback, was approved by the Respondent on 7 January 2025.

5. At the date of its lodgement on 21 March 2025, the subject MA sought approval to modify the parent consent to:

6. Add a wheelchair-accessible lift, with reconfiguration of the bathroom and laundry at ground floor, Bedroom 4 at the first floor level, and Bedroom 6 at the second floor level.

7. Increase in the size of the approved swimming pool.

8. Relocate the approved staircase so that its glazed wall aligns with the external wall.

9. Extend Bedroom 1 towards the rear boundary.

10. Realign walls within Bedrooms 1, 2, and 3 to create additional internal space.

11. Modify side windows to introduce transparent glazing.

12. Add internal privacy measures to windows in the form of curtains.

13. Reduce the size of the Bedroom 5 balcony to form a Juliette balcony, with removal of planter boxes and modification to privacy screens.

14. Remove the dormer roof form, with associated changes including reduced side setbacks, to match those of the levels below, and removal of approved planter.

15. The Respondent refused the MA on 19 May 2025.

16. The Applicant lodged a Class 1 appeal with the Court on 27 May 2025.

17. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 1 and 26 September, and 5 November 2025. I presided over the conciliation conference.

18. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions.

19. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included concerns for excessive building height, excessive floor space and associated building bulk, inappropriate design for a semi-detached dwelling, and inappropriate building form and massing impacts, amongst other contentions.

20. Agreed design amendments have now been made to rationalise the upper-most roof form, bringing it into closer conformity with the existing approved dormer roof. The rear building alignment has been made more consistent with neighbouring properties. Other minor internal amendments have been adopted, and together these changes are agreed to resolve the contentions in this matter.

21. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the parent DA.

22. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

23. In that regard, I am satisfied the MA was made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.

24. The MA was publicly notified from 28 March to 11 April 2025 in accordance with the Respondent’s Community Engagement Strategy. Three submissions were received by the Respondent raising concerns including:

25. The reinstatement of design elements that the Respondent had earlier found unacceptable.

26. Excessive height, bulk and scale resulting in visual impacts.

27. Incompatibility with the adjoining semi-detached dwelling.

28. Incompatibility with the streetscape character.

29. Overshadowing and impacts upon solar access for neighbouring properties.

30. Cross viewing and view loss impacts.

31. At the commencement of the conciliation conference at the site on the morning of 1 September 2025, a number of affected local residents addressed the Court to restate their concerns.

32. During the adjourned conciliation conference, I made time available to allow the Applicant to amend the DA, in an effort to resolve the Respondent’s contentions and, where relevant, to address objectors’ concerns.

33. In response, the amended MA introduces a series of design changes that serve to improve the relationship between the proposal and its context. Changes include a reduction of building form at the rear of the site, changes to the proposed roof form, increased upper level front setbacks and improved visual privacy between dwellings.

34. The parties agree, and I am satisfied, that the amended MA and agreed conditions of consent have satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.55(2)(c) and (d) of the EPA Act has been appropriately addressed.

35. Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA, and that the qualitative and quantitative elements and impacts of the proposal are essentially or materially the same.

36. The amended MA is a development situated within substantially the same envelope as that approved, save for minor extensions to the front and rear of the site. The height of the proposed development increases marginally by virtue of the roof form extending towards the front of the site. The height as perceived from public vantage points remains the same. The amended MA results in some additional gross floor area, however the site is not governed by a floor space ratio (FSR) control. The change to the articulation of the building form and location of windows and other internal changes are not readily perceptible, and do not result in unreasonable additional amenity impacts to adjoining properties. The amended MA will not unreasonably diminish the understanding of the original semi-detached dwelling from the street nor does it unreasonably impair the character of the streetscape.

37. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Respondent for the grant of consent to the parent DA have been appropriately considered by the parties in reaching their agreement in this matter.

38. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential. The amended MA - characterised as alterations and additions to an existing semi-detached dwelling house - is permissible with consent.

39. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the RLEP, the amended MA is consistent with the relevant R3 Medium Density Residential zone objectives, which include:

To provide for the housing needs of the community within a medium density residential environment.

To provide a variety of housing types within a medium density residential environment.

To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

To protect the amenity of residents.

25. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the RLEP, consent is required to carry out demolition, and accordingly consent for the partial demolition of the existing dwelling house is sought within the amended MA.

26. I am satisfied that pursuant to cl 4.3 of the RLEP - Height of buildings - the relevant development standard for the site is 9.5m. The parent DA was granted consent for a building of 9.98m in height. The amended MA seeks approval for an increase in height, which arises primarily as the uppermost roof form extends forward into an area above an excavated car parking space, resulting in a technical further exceedance in building height due to the existing ground level having been lowered relative to the original site topography. The maximum height of building now proposed is 12.65m, however the general presentation of the dwelling and its roof remain largely consistent with the parent DA

27. The parties agree, and I am satisfied, that all remaining principal development standards of the RLEP, are unaffected by the amended MA.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

29. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The amended MA does not seek to remove any additional trees beyond those already approved to be removed within the consent granted to the parent DA.

30. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022.

31. Accordingly, the parties agree, and I am satisfied, that pursuant to s 100(3) of the Environmental Planning and Assessment Regulation 2021 (NSW), the amended MA must be accompanied by a BASIX certificate. The Applicant has provided a BASIX Certificate No. A503177_06 dated 9 September 2025. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

32. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended MA warrants approval, subject to the imposition of conditions.

33. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Notes

34. The Court notes that:

35. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.

36. The Applicant has lodged the amended MA with the Court on 5 November 2025.

Orders

35. The Court orders that:

36. Leave is granted to the Applicant to amend Modification Application DA/592/2023/B and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

37. The appeal is upheld.

38. Development Consent DA/592/2023, is modified subject to the conditions of consent set out at Annexure A.

39. Development Consent DA/592/2023, as modified by the Court, is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

Annexure A (231 KB, pdf)

Annexure B (327 KB, pdf)

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Amendments

01 December 2025

Removed underlining and attached annexures a and b