Atchison v Randwick City Council - [2019] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation: Atchison v Randwick City Council [2019] NSWLEC 1559
Hearing dates: 11 November 2019
Date of orders: 19 November 2019
Decision date: 19 November 2019
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders:
(1) The Applicant is granted leave to rely on amended plans as set out in Condition 1 of ‘Annexure’ A.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No. 677/2017, for the demolition of existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level, subject to conditions at Annexure ‘A’.
(4) All exhibits are returned, except Exhibit A, B, F and G.

Catchwords: DEVELOPMENT APPEAL – desired future character – amenity of neighbouring properties – foreshore scenic protection area – contemporary and innovative design
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Act 1979
Randwick Local Environmental Plan 2012
Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254Davies v Penrith City Council (2013) NSWLEC 1141
Totem Queens Park Pty Ltd v Waverley Council (2004) 140 LGERA 406
Texts Cited: Randwick Development Control Plan
Category: Principal judgment
Parties: Grant Atchison (First applicant)
Donna Wild (Second Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
Dr J Smith (Applicants)
D LeBreton (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicants)
HWL Ebsworth (Respondent)

File Number(s): 2019/70865
Publication restriction: No

Judgment

COMMISSIONER: Mr Grant Atchison (First Applicant) and Ms Donna Wild (Second Applicant) (the Applicants) are the owners of No. 119 Boundary Street, Randwick (the site) and they are appealing the refusal by the Randwick City Council of Development Application No. 677/2017, under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’), for the demolition of an existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level.
The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 11 November 2019 which commenced with an onsite view under s 34 (1) of the LEC Act between the parties, and at which I presided.
As is its usual practice, the proceedings commenced onsite with the parties and the experts. Public submissions were heard from residents at the No. 121A and No. 121B Boundary Street, who also invited the Court and the parties to view their site. The Court viewed the site and the rear lane known as Park Lane, and a number of properties on Boundary Street,…

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: [2019] NSWLEC 1559
Decision Date: 19 November 2019

CaseChat Overview and Summary

The case of Atchison v Randwick City Council involved a dispute over the approval of a development application concerning the demolition of an existing dwelling and the construction of a new dwelling. The applicant sought leave to amend their plans and development application, which the council had previously rejected. The case was heard by the Land and Environment Court of New South Wales. The applicant argued that the council's decision to reject the development application was unreasonable and that the amended plans should be approved. The council opposed the application on various grounds, including concerns about the proposed design and its impact on the surrounding area.

The legal issues before the court included whether the applicant was entitled to rely on amended plans and whether the council's decision to reject the development application was unreasonable. The court needed to determine whether the applicant had provided sufficient justification for the amendments to the plans and whether the council's decision was based on proper consideration of the relevant legislation and policies. The court also had to consider the impact of the proposed development on the surrounding area and whether it was consistent with the relevant planning instruments.

In its decision, the court found that the applicant was entitled to rely on the amended plans and that the council's decision to reject the development application was unreasonable. The court held that the applicant had provided sufficient justification for the amendments to the plans and that the council had not properly considered the relevant legislation and policies in making its decision. The court also found that the proposed development was consistent with the relevant planning instruments and would not have an adverse impact on the surrounding area. As a result, the court granted the applicant's appeal and approved the development application subject to certain conditions.

The court's final orders included granting the applicant leave to rely on the amended plans, upholding the appeal against the council's decision, granting development consent for the proposed development, and setting out various conditions that the applicant must comply with. The court also ordered that all exhibits be returned, except for certain documents that were to be retained for future reference.

Orders

Orders of the court

The Court orders:

(1) The Applicant is granted leave to rely on amended plans as set out in Condition 1 of ‘Annexure’ A.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 677/2017, for the demolition of existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level, subject to conditions at Annexure ‘A’.

(4) All exhibits are returned, except Exhibit A, B, F and G.

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:	Atchison v Randwick City Council [2019] NSWLEC 1559
Hearing dates:	11 November 2019
Date of orders:	19 November 2019
Decision date:	19 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on amended plans as set out in Condition 1 of ‘Annexure’ A. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. 677/2017, for the demolition of existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level, subject to conditions at Annexure ‘A’. (4) All exhibits are returned, except Exhibit A, B, F and G.
Catchwords:	DEVELOPMENT APPEAL – desired future character – amenity of neighbouring properties – foreshore scenic protection area – contemporary and innovative design
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Act 1979 Randwick Local Environmental Plan 2012
Cases Cited:	Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254Davies v Penrith City Council (2013) NSWLEC 1141 Totem Queens Park Pty Ltd v Waverley Council (2004) 140 LGERA 406
Texts Cited:	Randwick Development Control Plan
Category:	Principal judgment
Parties:	Grant Atchison (First applicant) Donna Wild (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicants) D LeBreton (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicants) HWL Ebsworth (Respondent)
File Number(s):	2019/70865
Publication restriction:	No