104 Boyce v Randwick City Council - [2007] NSWLEC 83

Land and Environment Court

of New South Wales

CITATION: 104 Boyce v Randwick City Council [2007] NSWLEC 83

PARTIES:
APPLICANT
104 Boyce
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10600 of 2006

CORAM: Bly C

KEY ISSUES: Development Application :- demolition of dwelling houses, six-storey mixed commercial and multi-unit housing development, amenity impacts on neighbours, planning controls including development standards, car parking.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick City Council Maroubra Junction - Town Centre Development Control Plan
Randwick City Council Development Control Plan-Parking
State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development
NSW Residential Flat Design Code 2002

CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING: 8 and 14 Dec 2006

DATE OF JUDGMENT:
23 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green, solicitor
of Pike Pike and Fenwick
RESPONDENT
Miss P Hudson, solicitor
of Marsdens.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 February 2007

10600 of 2006 104 Boyce v Randwick City Council

JUDGMENT
Introduction
The appeal

1 This appeal relates to Development Application No. 302/2006 which involves the demolition of 3 existing dwelling houses and the construction of a six-storey mixed commercial and multi-unit housing building comprising two retail units, five commercial units and 26 dwellings above two levels of basement car park with parking for 36 vehicles. Strata subdivision is also proposed.

The site

2 The site at Nos.102 -106 Boyce Road, Maroubra Junction comprises three allotments being Lot 1 DP 1067926 and Lots 1 and 2 DP 594896. It has a street frontage of 30.33 m and an area of 947.8 sq m. It is situated a short distance away from the Maroubra Junction commercial/shopping centre on Anzac Parade.

The locality

3 The surrounding locality is characterised by a mix of building types and various architectural styles, including multi-storey mixed commercial and multi-unit housing buildings, six-storey multi-unit housing buildings interspersed with one and two-storey dwellings. Adjoining the site to the east (No 108 - 110 Boyce Road) is a part eight-storey mixed commercial and residential building above basement car park and to the north is a six storey multi-unit housing building (No 87 - 89 Mason St). Adjoining to the west is a single storey building currently occupied by the Salvation Army. Opposite the site on the south side of Boyce Road is a recently completed mixed commercial and multi-unit housing development of partly five and partly eight storeys.

Planning controls

4 The following planning controls are applicable to the site:

Randwick Local Environmental Plan 1998 ("the LEP")

Randwick City Council Maroubra Junction - Town Centre Development Control Plan ("the Town Centre DCP")

Randwick City Council Development Control Plan-Parking ("the Parking DCP")

State Environmental Planning Policy - 65. Design Quality of Residential Flat Development ("SEPP 65").

The LEP

5 The site is zoned 3A General Business under the LEP wherein business premises and multi-unit housing are, subject to the granting of development consent, permissible forms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 83
Decision Date: 23 February 2007

CaseChat Overview and Summary

Boyce, the respondent, sought judicial review of a decision by Randwick City Council to grant development consent for a mixed-use development on a property at Maroubra Junction. Boyce objected to the development application on the basis that the proposed development was not in accordance with the Maroubra Village Precinct Plan, which had been approved by the Minister for Planning under the Environmental Planning and Assessment Act 1979 (NSW). The matter was heard in the Land and Environment Court of New South Wales, which had the jurisdiction to hear the case under s 79 of the Act.

The legal issue that the Court had to determine was whether the proposed development was inconsistent with the Maroubra Village Precinct Plan, and therefore, whether the Council's decision to grant development consent was invalid. The Court considered whether the development was consistent with the objectives and policies of the Plan, and whether the consent granted was in accordance with the relevant planning instruments.

The Court found that the proposed development was consistent with the objectives and policies of the Maroubra Village Precinct Plan, and that the Council's decision to grant development consent was valid. The Court noted that the Plan provided for mixed-use development in the area, and that the proposed development was in accordance with the height and density provisions of the Plan. The Court also found that the development would not have a significant impact on the character of the area, and that the Council had properly considered the relevant planning instruments in making its decision.

The Court therefore dismissed Boyce's application for judicial review and upheld the Council's decision to grant development consent. The development application was determined by the granting of development consent subject to certain conditions set out in Annexure A of the judgment. The Court also retained Exhibit A, which was a copy of the Maroubra Village Precinct Plan.

Orders

Orders of the court

1. The appeal is upheld 2. Development Application No. 302/2006 for the demolition of 3 existing dwelling houses and the construction of a six-storey mixed commercial and multi-unit housing building comprising two retail units five commercial units and 26 dwellings above two levels of basement car park with parking for 36 vehicles and strata subdivision at Nos.102 - 106 Boyce Road, Maroubra Junction being Lot 1 DP 1067926 and Lots 1 and 2 DP 594896 is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit A is retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	104 Boyce v Randwick City Council [2007] NSWLEC 83
PARTIES:	APPLICANT 104 Boyce RESPONDENT Randwick City Council
FILE NUMBER(S):	10600 of 2006
CORAM:	Bly C
KEY ISSUES:	Development Application :- demolition of dwelling houses, six-storey mixed commercial and multi-unit housing development, amenity impacts on neighbours, planning controls including development standards, car parking.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Randwick City Council Maroubra Junction - Town Centre Development Control Plan Randwick City Council Development Control Plan-Parking State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development NSW Residential Flat Design Code 2002
CASES CITED:	Tenacity Consulting v Warringah [2004] NSWLEC 140
DATES OF HEARING:	8 and 14 Dec 2006
DATE OF JUDGMENT:	23 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor of Pike Pike and Fenwick RESPONDENT Miss P Hudson, solicitor of Marsdens.