Neighbour overturns duplex modification over overlooked DCP controls

What has happened?

In Ross v Randwick City Council [2025] NSWLEC 89, the Land and Environment Court declared invalid the Council's approval of a modification to a duplex development in Matraville. The challenge was brought by a self-represented neighbour.

Context

The Council had approved a new two-storey duplex in 2022. The owners then applied under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to enlarge the ground and first floors and add a bedroom to each dwelling. This reduced the first-floor rear setback by about 30 per cent.

The neighbour argued that the Council had failed to consider two controls in the Randwick Comprehensive Development Control Plan 2023 (sections 2.5 and 3.3.3). These included a control requiring rear setbacks to respond to the predominant rear setback line of the street, where neighbouring first floors were set back around 15 metres.

The decision

Justice Pritchard held that:

  • in determining a modification application, the Council was required to consider the relevant provisions of the DCP;

  • the Council had failed to consider the two DCP controls, and its assessment wrongly stated that the modification complied with the DCP; and

  • the modification approval was therefore invalid.

The neighbour's separate argument that the Council failed to properly assess whether the modified development was "substantially the same" as the original development was rejected. The Council was ordered to pay the neighbour's costs.

How will this affect you?

  • Modification applications under s 4.55(2) require the same consideration of relevant planning controls as a development application. They are not a shortcut.

  • Assessment reports that simply state "complies with the DCP" without engaging with key controls are vulnerable to challenge.

  • Neighbours can successfully challenge modification approvals, but they must act within the strict time limits for judicial review.

Further information

For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.