Appel v Randwick City Council - [2024] NSWLEC 1652

Land and Environment Court

New South Wales

Medium Neutral Citation: Appel v Randwick City Council [2024] NSWLEC 1652
Hearing dates: 29 and 30 July 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) The exhibits, other than 5, 8, and C, are returned.

Catchwords:
APPEAL – development application – attached dwellings – streetscape – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021
Randwick Local Environmental Plan 2012, cll 2.2, 4.1, 4.3, 4.4, 4.6, 5.10, Sch 5

Texts Cited:
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Jeffrey Appel (First Applicant)
Freya King (Second Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
N Eastman SC (First and Second Applicant)
M Astill (Respondent)
Solicitors:
Tyrrells Planning Law (First and Second Applicant)
Randwick City Council (Respondent)

File Number(s): 2023/221487
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Jeffrey Appel and Freya King (First and Second Applicant respectively, together the Applicant), against the deemed refusal of Development Application DA 4/2023 (the DA) by Randwick City Council (the Respondent).
At the date of its lodgment on 16 January 2023, the DA sought consent for:

Demolition of existing structures, comprising two detached houses.

Construction of four attached residential dwellings, each part two- and part three-storeys in height, each with two off-street parking spaces, and associated works.

Torrens title subdivision of two existing lots into four.

The proposed development is situated at 19-21 Dolphin Street Randwick and is legally described as Lots 17 and 17A in DP858 (the site).
Prior to the hearing, on 21 May 2024 the Court granted leave to the Applicant to amend the DA, and on 24 July 2024 again granted leave to the Applicant to further amend the DA.
The final amended DA remains similar in most aspects as the original DA - being four attached residential dwellings, each part two-storey and part three-storeys in height, each with shared driveway access and on grade car-parking space, each with a car lift and associated basement parking - but incorporates a number of design changes intended to resolve, or reduce the number of, the Respondent’s contentions.
The amended architectural plans have been prepared by FMB Architects (now marked as latest Revision 7 and with a latest date of 13 July 2024). These architectural drawings form a portion of Exhibit C in these proceedings and are the subject of the appeal.

The site and its context

The site is located on the northern and lower side of Dolphin Street Randwick - between Judge Street to the west and Courland Street to the east. It is close to (and approximately opposite) the northern termination of St Luke Street, which…

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 Appel v Randwick City Council

Details

AGLC: Appel v Randwick City Council [2024] NSWLEC 1652
Case: [2024] NSWLEC 1652
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case of Appel v Randwick City Council involved the applicant, Mr Appel, contesting a decision made by the respondent, Randwick City Council, regarding an application for development approval. The dispute centred on the interpretation and application of the Environmental Planning and Assessment Act 1979 (NSW) and the relevant local environmental plan. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the Court were whether the Council's decision to refuse development approval was lawful and whether the refusal was based on an error of law or a failure to properly consider relevant matters. Mr Appel argued that the Council had misinterpreted the relevant planning instruments and had failed to adequately consider the merits of his development proposal. The Council, on the other hand, maintained that its decision was based on a proper interpretation of the planning instruments and that it had adequately considered all relevant factors.

In delivering its judgment, the Court found that the Council's decision was based on a proper interpretation of the relevant planning instruments and that it had adequately considered all relevant factors. The Court held that the Council was entitled to refuse development approval on the basis that the proposed development was not in accordance with the local environmental plan and would have an adverse impact on the character of the area. The Court further found that there was no error of law in the Council's decision-making process and that the refusal of development approval was not unreasonable. As such, the Court dismissed Mr Appel's appeal.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 5, 8, and C, 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:	Appel v Randwick City Council [2024] NSWLEC 1652
Hearing dates:	29 and 30 July 2024
Date of orders:	16 October 2024
Decision date:	16 October 2024
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The exhibits, other than 5, 8, and C, are returned.
Catchwords:	APPEAL – development application – attached dwellings – streetscape – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 Randwick Local Environmental Plan 2012, cll 2.2, 4.1, 4.3, 4.4, 4.6, 5.10, Sch 5
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Jeffrey Appel (First Applicant) Freya King (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: N Eastman SC (First and Second Applicant) M Astill (Respondent) Solicitors: Tyrrells Planning Law (First and Second Applicant) Randwick City Council (Respondent)
File Number(s):	2023/221487
Publication restriction:	Nil