58 Bream Street Pty Ltd v Randwick City Council - [2024] NSWLEC 1155

Land and Environment Court

New South Wales

Medium Neutral Citation: 58 Bream Street Pty Ltd v Randwick City Council [2024] NSWLEC 1155
Hearing dates: Conciliation conferences held on 30 January, 14 and 28 February, 8 and 13 March 2024
Date of orders: 04 April 2024
Decision date: 04 April 2024
Jurisdiction: Class 1
Before: Kullen AC
Decision:
The Court orders that:
1) The appeal is upheld.
2) Development Consent No.150/2022 is modified in the terms in Annexure A.
3) Development Consent No.150/2022 as modified by the Court is Annexure B.

Catchwords:
DEVELOPMENT APPEAL – modification application – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9
Environmental Planning and Assessment Regulation 2021, s 113
Land and Environment Court Act 1979, ss 8.9, 34
Randwick Local Environmental Plan 2012, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.7, 6.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002 EPI 530), cl 3
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2 and 4, s 4.6

Cases Cited:
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65
Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586

Texts Cited:
Randwick Community Participation Plan 2019
Randwick Comprehensive Development Plan 2013

Category: Principal judgment
Parties: 58 Bream Street Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s): 2023/340054
Publication restriction: Nil

Judgment

COMMISSIONER: This appeal concerns an application to modify a development consent for the demolition of existing structures and construction of a four storey residential flat building comprising three units, basement car parking, and associated landscape works at Lot 2 on DP220244, also known as 58 Bream Street, Coogee (the site). The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the deemed refusal of Modification Application No. 150/2022/A (MOD A) by Randwick City Council (the Respondent). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [21] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
On 25 October 2022, the Land and Environment Court granted consent to Development Application DA/150/2022 within proceedings Attena Group Pty Ltd v Randwick City Council [2002] NSWLEC 1586 for the demolition of existing structures and construction of a residential flat building comprising three units, basement car parking, landscaping and associated works at 58 Bream Street, Coogee (Original DA).
MOD A was lodged on 18 July 2022 as a section 4.56 application under the EPA Act to…

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 58 Bream Street Pty Ltd v Randwick City Council

Details

AGLC: 58 Bream Street Pty Ltd v Randwick City Council [2024] NSWLEC 1155
Case: [2024] NSWLEC 1155
Decision Date: 04 April 2024

CaseChat Overview and Summary

In the Supreme Court of New South Wales, 58 Bream Street Pty Ltd (the appellant) sought review of a decision made by the Randwick City Council (the respondent) to deny an application for development consent. The appellant challenged the decision on the basis that the Council did not properly consider certain planning laws and statutory objectives in making its decision. The case involved the interpretation of the local environmental plan and the relevant planning legislation, as well as the standard of review applicable to the Council’s decision.

The primary legal issue before the court was whether the respondent had correctly exercised its discretion in denying the appellant’s application for development consent. Specifically, the court needed to determine if the Council’s decision was in accordance with the relevant planning laws and statutory objectives, and whether the Council had properly considered all relevant matters in making its decision. The court also needed to consider the appropriate standard of review to apply when reviewing the decision of the Council.

The court found that the Council had not properly considered certain statutory objectives and had failed to exercise its discretion in accordance with the relevant planning laws. The court held that the Council’s decision was therefore unlawful and should be quashed. The court also held that the appropriate standard of review was that of jurisdictional error, meaning that the court could substitute its own decision for that of the Council if it found that the Council had made an error of law. The court then proceeded to modify the development consent in accordance with the statutory objectives and planning laws, and set out the modified terms in Annexure B.

Accordingly, the Court ordered that the appeal be upheld, the development consent be modified in the terms set out in Annexure A, and the modified development consent be set out in Annexure B.

Orders

Orders of the court

The Court orders that:

1) The appeal is upheld.

2) Development Consent No.150/2022 is modified in the terms in Annexure A.

3) Development Consent No.150/2022 as modified by the Court is Annexure B.

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:	58 Bream Street Pty Ltd v Randwick City Council [2024] NSWLEC 1155
Hearing dates:	Conciliation conferences held on 30 January, 14 and 28 February, 8 and 13 March 2024
Date of orders:	04 April 2024
Decision date:	04 April 2024
Jurisdiction:	Class 1
Before:	Kullen AC
Decision:	The Court orders that: 1) The appeal is upheld. 2) Development Consent No.150/2022 is modified in the terms in Annexure A. 3) Development Consent No.150/2022 as modified by the Court is Annexure B.
Catchwords:	DEVELOPMENT APPEAL – modification application – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 8.9, 34 Randwick Local Environmental Plan 2012, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002 EPI 530), cl 3 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2 and 4, s 4.6
Cases Cited:	SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586
Texts Cited:	Randwick Community Participation Plan 2019 Randwick Comprehensive Development Plan 2013
Category:	Principal judgment
Parties:	58 Bream Street Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent)
File Number(s):	2023/340054
Publication restriction:	Nil