41 Robey Pty Ltd v Randwick City Council - [2020] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation: 41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541
Hearing dates: 29-30 October 2020
Date of orders: 9 November 2020
Decision date: 09 November 2020
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. 382/2019 for the demolition of existing structures and construction of a boarding house development across two buildings, is approved, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than exhibits 1, 6, A, B, C and D, are returned.

Catchwords:
DEVELOPMENT APPLICATION — boarding house development – compatibility with the character of the local area – side setbacks – internal amenity – amenity impacts on adjoining development – impact on the heritage significance of adjoining heritage items

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environmental Plan 1998
Randwick Local Environmental Plan 2012
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

Cases Cited:
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:
Building Code of Australia
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: 41 Robey Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
C McEwen SC (Applicant)
A Hudson (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/271126
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 382/2019 for the demolition of existing structures and the construction of a boarding house development across two buildings (the proposal) at 41 Robey Street, Maroubra (the site) by Randwick City Council (the Council).
The appeal was subject to conciliation on 17 April 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 27 October 2020 for the applicant to amend the application by relying on amended architectural and landscape plans (Ex C).

Issues

The Council’s contentions can be summarised as:

The design of the proposal is not compatible with the character of the local area.

The proposal is inconsistent with the objectives of the R3 Medium Density Residential zone.

The side setbacks are inadequate.

The proposal does not provide adequate residential amenity for occupants, because the boarding rooms are too narrow and the ceiling heights are less than 2.7m.

The proposal results in adverse amenity impacts on the adjoining property at 43 Robey Street, due to overshadowing.

The proposal will have a detrimental impact on the setting of the adjoining heritage item.

The proposal will establish an undesirable precedent in the locality.

The…

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.

Continue reading 41 Robey Pty Ltd v Randwick City Council

Details

AGLC: 41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541
Case: [2020] NSWLEC 1541
Decision Date: 09 November 2020

CaseChat Overview and Summary

41 Robey Pty Ltd sought judicial review of a decision by Randwick City Council to refuse development consent for a proposed boarding house. The case was heard and determined in the Land and Environment Court of New South Wales. The developer appealed against the Council's refusal to grant development consent for the proposed boarding house, arguing that the decision was unreasonable and that the assessment of the application was flawed.

The primary issue for determination was whether the Council's decision to refuse development consent was lawful, reasonable, and based on appropriate considerations. The developer contended that the Council failed to consider relevant environmental and planning policies, and that the reasons provided for refusal were inadequate and not supported by the evidence. The Council, on the other hand, argued that the proposed development would have significant adverse impacts on the character of the area and did not align with the local planning policies.

The Court found that the Council's decision was not based on a proper consideration of the relevant planning policies and environmental factors. The Court held that the Council failed to adequately address the applicant's submissions and evidence, and that the reasons provided for refusal were insufficient and did not demonstrate a proper application of the planning and environmental criteria. The Court concluded that the decision was unreasonable and remitted the matter back to the Council for reconsideration, with specific directions for the Council to consider the application in light of the Court's findings.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 382/2019 for the demolition of existing structures and construction of a boarding house development across two buildings, is approved, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than exhibits 1, 6, A, B, C and D, are returned.

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.

Medium Neutral Citation:	41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541
Hearing dates:	29-30 October 2020
Date of orders:	9 November 2020
Decision date:	09 November 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 382/2019 for the demolition of existing structures and construction of a boarding house development across two buildings, is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than exhibits 1, 6, A, B, C and D, are returned.
Catchwords:	DEVELOPMENT APPLICATION — boarding house development – compatibility with the character of the local area – side setbacks – internal amenity – amenity impacts on adjoining development – impact on the heritage significance of adjoining heritage items
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 1998 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development
Cases Cited:	Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Building Code of Australia Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	41 Robey Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) A Hudson (Solicitor) (Respondent) Solicitors: Mills Oakley Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/271126
Publication restriction:	Nil