In the recent Land and Environment Court (LEC) decision of Ross v Randwick City Council [2025] NSWLEC 89, Justice Pritchard confirmed that a development control plan (DCP) is a mandatory consideration when determining modification applications under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
The Council’s approval was held invalid, because the assessment failed to engage with the applicable DCP.
Background
On 28 July 2022, ADS Building Designers (ADS) obtained development consent from Randwick City Council (Council) for demolition works and construction of a new two-storey duplex.
On 1 March 2024, Council approved a modification application that included:
- increasing the floor area of each dwelling; and
- altering windows and the internal layout.
Consistent with the Randwick Development Control Plan 2013 (DCP 2013) in force at the time of the original consent, the modification proposed an 8m rear setback and 32.38% of the site area to be landscape and permeable surfaces.
However, by the time of the modification decision, Randwick Council’s Development Control Plan 2023 (RDCP 2023) had replaced DCP 2013 and introduced different controls. The modified development did not comply with the new RDCP 2023 standards for deep soil and rear setbacks. A neighbour (Applicant) commenced Class 4 judicial review proceedings in the LEC against the owners of the property and Council, alleging Council failed to consider sections 2.5 (deep soil permeable surfaces) and 3.3.3 (rear setbacks) of RDCP 2023.
Council’s Modification Assessment Report relevantly stated under s4.15(1)(a)(iii) of the EP&A Act that:
“The development remains compliant with objectives and controls of the Randwick Comprehensive DCP 2013, including the site coverage requirement, the previous landscaping nexus, visual privacy and overshadowing”.
The Applicant claimed that Council’s decision to approve the modification was in error because the assessment report:
- did not identified the proposal’s non-compliances with RDCP2023; and
- did not explain any alternative solution or why compliance with sections 2.5 and 3.3.3 was unnecessary (as RDCP 2023 required) (Alleged Errors).
Council submitted that the Applicant was conflating the duty to consider a DCP with a duty to apply it strictly. In doing so, Council relyied on previous decisions, with Council contended that the decision maker was taken to have had regard to the Alleged Errors as evidenced by the following:-
- material dealing with deep soil and rear setbacks was on Council’s file (in both the application and public submissions); and
- issues relating to the Alleged Errors were expressly referred to in the assessment report.
Council also emphasised the intent of judicial review proceedings, urging the Court not to stray into a review of the merits of the decision.
The Court’s Findings
The Court affirming a long-standing precedent, reiterated that while DCP provisions are to be applied with flexibility, they remain fundamental elements of the decision-making process. A consent authority may accept reasonable alternative solutions that achieve the objects of the standards, but it must recognise the applicable control, assess compliance, and give reasons if departing from it.
In this case, the Court:
- acknowledged there may be a presumption that a council file is taken to be within the constructive knowledge of Council officers; but
- found no evidence that Council actually turned its minds to sections 2.5 or 3.3.3 of RDCP 2023, the differences between RDCP 2023 and DCP 2013, or any acceptable alternative solution.
It was not evident that Council appreciated there were differences in the development standards between RDCP 2023 and the former DCP 2013.
This failure amounted to a failure to consider a mandatory matter under s4.15(1)(a)(iii) of EP&A Act, rendering the modification approval invalid.
The Court noted that although the details of the development may be contained on the Council file and taken to be within officers’ the constructive knowledge, that alone is insufficient to demonstrate compliance with s 4.15 EP&A Act.
Key Takeaways
To discharge the mandatory duty to consider a DCP under s4.15(1)(iii) EP&A Act for a modification decision, councils should ensure that assessment reports:
- identify the applicable DCP in force at the time of determination,
- pinpoint each relevant control considered (by clause or section);
- state clearly any non-compliance of the proposal,
- explain any alternative solution, including how it achieves the control’s objectives; and
- record reasons where flexibility is exercised in applying the controls.
Get in touch today
For advice on DCP requirements and modification assessments, please contact our Local Government & Planning team.
