Barhom v Randwick City Council - [2024] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation: Barhom v Randwick City Council [2024] NSWLEC 1357
Hearing dates: 17 April 2024
Date of orders: 27 June 2024
Decision date: 27 June 2024
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) The development application (DA/118/2023) for the strata subdivision of an existing attached dual occupancy, at 12 Nurla Avenue, Little Bay is determined by the grant of development consent subject to the conditions in Annexure A.
(3) Exhibits A-C and 4 are retained and exhibits D-F and 1-3 are returned.

Catchwords:
APPEAL – development application – strata subdivision of an existing dual occupancy – calculation of strata lot size – breach of the minimum strata lot size development standard – consistency with the zone objectives concerning housing affordability and housing needs

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 6.2, 4.15
Interpretation Act 1987, ss 11, 33
Land and Environment Court Act 1979, ss 34, 34AA, 39
Strata Schemes Development Act 2015, ss 4, 6, 9
Randwick Local Environmental Plan 2012 (Amendment No 9)
Randwick Local Environmental Plan 2012, cll 1.8A, 2.6, 4.1A, 4.1C, 4.6
Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 6.2
State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 1

Cases Cited:
AJC United Investment Pty Ltd v Georges River Council [2022] NSWLEC 1343
Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401
Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
DM & Longbow v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173
Kelly v Randwick City Council [2018] NSWLEC 1322
Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486
MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646
Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143
Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231
Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827

Category: Principal judgment
Parties: Tal Barhom (First applicant)
Niv Barhom (Second applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
S Berveling (Applicants)
A Seton (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 2023/300494
Publication restriction: Nil

Judgment

COMMISSIONER: At 12 Nurla Avenue, Little Bay, there is an existing attached dual occupancy. The applicants, Mr and Mrs Barhom, seek development consent for the subdivision of the dual occupancy into two strata lots, with the subdivision to occur along the line of the dividing wall and fence between the two dwellings that form the attached dual occupancy. The subdivision would therefore result in a dwelling on each strata lot. The size of the two strata lots on the proposed plan of subdivision is 298m² and 376m², and they have a ground floor land area including common property walls of 223.6m²and 296.2m²

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: [2024] NSWLEC 1357
Decision Date: 27 June 2024

CaseChat Overview and Summary

Barhom v Randwick City Council is a case before the Land and Environment Court of New South Wales, concerning a dispute over a development application for the subdivision of a strata property. The applicant, Barhom, sought to subdivide an existing attached dual occupancy into two separate lots. Randwick City Council initially refused the application, prompting Barhom to appeal the decision.

The primary legal issues the Court needed to address were whether the proposed subdivision complied with the relevant planning and development laws and, if so, whether the conditions attached to the approval were reasonable and necessary. The Court also had to consider the impact of the proposed development on the surrounding area and the public interest.

The Court found that the proposed subdivision was consistent with the applicable planning schemes and that the conditions attached to the approval were reasonable. The Court held that the development would not adversely affect the character of the neighbourhood and that the benefits to the applicant and the public outweighed any potential harm. The Court also noted that the development would not negatively impact the amenity of the surrounding properties or the public. Therefore, the appeal was upheld, and development consent was granted subject to the specified conditions.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) The development application (DA/118/2023) for the strata subdivision of an existing attached dual occupancy, at 12 Nurla Avenue, Little Bay is determined by the grant of development consent subject to the conditions in Annexure A.

(3) Exhibits A-C and 4 are retained and exhibits D-F and 1-3 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:	Barhom v Randwick City Council [2024] NSWLEC 1357
Hearing dates:	17 April 2024
Date of orders:	27 June 2024
Decision date:	27 June 2024
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) The development application (DA/118/2023) for the strata subdivision of an existing attached dual occupancy, at 12 Nurla Avenue, Little Bay is determined by the grant of development consent subject to the conditions in Annexure A. (3) Exhibits A-C and 4 are retained and exhibits D-F and 1-3 are returned.
Catchwords:	APPEAL – development application – strata subdivision of an existing dual occupancy – calculation of strata lot size – breach of the minimum strata lot size development standard – consistency with the zone objectives concerning housing affordability and housing needs
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 6.2, 4.15 Interpretation Act 1987, ss 11, 33 Land and Environment Court Act 1979, ss 34, 34AA, 39 Strata Schemes Development Act 2015, ss 4, 6, 9 Randwick Local Environmental Plan 2012 (Amendment No 9) Randwick Local Environmental Plan 2012, cll 1.8A, 2.6, 4.1A, 4.1C, 4.6 Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 6.2 State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 1
Cases Cited:	AJC United Investment Pty Ltd v Georges River Council [2022] NSWLEC 1343 Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401 Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 DM & Longbow v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 Kelly v Randwick City Council [2018] NSWLEC 1322 Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486 MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646 Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Tal Barhom (First applicant) Niv Barhom (Second applicant) Randwick City Council (Respondent)
Representation:	Counsel: S Berveling (Applicants) A Seton (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2023/300494
Publication restriction:	Nil