Attena Group Pty Ltd v Randwick City Council - [2022] NSWLEC 1586

Land and Environment Court

New South Wales

Medium Neutral Citation: Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586
Hearing dates: Conciliation conference held 26 August, 13, 27 and 30 September 2022, final agreement filed 4 October 2022
Date of orders: 25 October 2022
Decision date: 25 October 2022
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA 150/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A.
(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $4,000.
(3) The appeal is upheld.
(4) Consent is granted to Development Application DA 150/2022 (as amended) 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, subject to the conditions contained at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 55
Land and Environment Court Act 1979, s 34
Randwick Local Environmental Plan 2012, cll 5.21, 6.1, 6.2, 6.4, 6.7, 6.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category: Principal judgment
Parties: Attena Group 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): 2022/156228
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) against the deemed refusal of Development Application DA 150/2022 (the DA) by Randwick City Council (the Respondent). The DA sought consent for demolition of existing structures, construction of a four storey residential flat building comprising three units, basement parking for four vehicles, two bicycle spaces and associated landscape works at 58 Bream Street, Coogee (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 August, 13, 27 and 30 September 2022. I presided over the conciliation conference.
Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view (on 25 August 2022) before resuming on the morning of 26 August 2022 by Microsoft Teams.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves…

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 Attena Group Pty Ltd v Randwick City Council

Details

AGLC: Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586
Case: [2022] NSWLEC 1586
Decision Date: 25 October 2022

CaseChat Overview and Summary

The case of Attena Group Pty Ltd v Randwick City Council involved a dispute over the approval of a development application (DA) for the demolition of existing structures and the construction of a residential flat building in Coogee. The Applicant sought leave to amend the original development application, which was opposed by the Respondent, the Randwick City Council. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Applicant should be granted leave to amend its development application. The court also had to determine whether the amendment of the development application would result in the Council incurring unnecessary costs, and if so, whether those costs should be borne by the Applicant. Additionally, the court needed to decide whether the amended development application should be granted consent.

The court found that the amendment of the development application was necessary to address the concerns raised by the Council and to ensure compliance with relevant planning laws. The court determined that the Council had incurred costs as a result of the amendment, which were reasonable and necessary. Accordingly, the Applicant was ordered to pay the Council’s costs. The court concluded that, despite the amendment, the amended development application met the requirements of the Environmental Planning and Assessment Act 1979 and should be granted consent, subject to certain conditions.

The court granted leave for the Applicant to amend the development application and ordered the Applicant to pay the Council’s costs of $4,000. The court also upheld the appeal and granted consent for the amended development application, subject to the conditions outlined in Annexure A. The final order permitted the demolition of existing structures and the construction of a residential flat building, including three units, basement car parking, landscaping, and associated works at the specified address.

Orders

Orders of the court

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA 150/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $4,000.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA 150/2022 (as amended) 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, subject to the conditions contained at Annexure A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586
Hearing dates:	Conciliation conference held 26 August, 13, 27 and 30 September 2022, final agreement filed 4 October 2022
Date of orders:	25 October 2022
Decision date:	25 October 2022
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA 150/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $4,000. (3) The appeal is upheld. (4) Consent is granted to Development Application DA 150/2022 (as amended) 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, subject to the conditions contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 5.21, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)
Category:	Principal judgment
Parties:	Attena Group 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):	2022/156228
Publication restriction:	Nil