Coogee Developments Pty Ltd v Randwick City Council - [2017] NSWLEC 1022

Land and Environment Court

New South Wales

Medium Neutral Citation: Coogee Developments Pty Ltd v Randwick City Council [2017] NSWLEC 1022
Hearing dates: 28 November 2016
Date of orders: 24 January 2017
Decision date: 24 January 2017
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is dismissed.
2. The application to modify Development Application No DA 145/2015 for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 7 units at 4 Higgs Street, Randwick is refused.
3. The exhibits are returned with the exception of exhibits 1 and A.

Catchwords: MODIFICATION: additional unit to approved 4 storey residential flat building containing 8 units - whether the modification is substantially the same as approved development - excessive bulk and scale – unacceptable impact on heritage conservation area - unacceptable visual and acoustic privacy impacts - acceptable internal amenity
Legislation Cited: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 2012
Cases Cited: ABD Holdings Pty Ltd v Council of the City of Sydney [2013] NSWLEC 45
Coogee Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1011
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143
Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351
Scrap Realty Pty v Botany Bay City Council (2008) 166 LGERA 342
Category: Principal judgment
Parties: Coogee Developments Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
Ms H Irish, barrister (Applicant)
Mr S Patterson, solicitor (Respondent)
Solicitors:
Boskovitz & Associates Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2016/161943
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of an application to modify Development Application No DA 145/2015 that was granted approval for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 7 units at 4 Higgs Street, Randwick (the site) (Coogee Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1011).
The extent of the modification, as stated in the Statement of Environmental Effects is:

The proposed modifications to the approved residential flat building occur within the approved building footprint and largely within the approved envelope, being confined to the rear of the building. The separation of unit 2 into units 2 and 5 is achieved with only a minor increase in the building form. The modifications to the basement car parking area to include the proposed car stackers have resulted in an additional four car spaces
As noted, the modifications proposed are generally confined to the rear of the building on Levels 1 & 2 and include the following, inter alia
• Separation of two storey Unit 2 into Unit 2 (Level 1) and Unit 5 (Level 2), with Unit 5 repeating the modified layout of Unit 2 below This results in an additional 65m2 of…

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: [2017] NSWLEC 1022
Decision Date: 24 January 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Coogee Developments Pty Ltd brought an appeal against the decision of Randwick City Council to refuse modification of a development application concerning the demolition and replacement of a residential flat building. The dispute centred on the council's refusal to allow changes to the original development application, which had been approved in 2015, including an increase in the number of units and height of the building. The developer sought to modify the approved development to include an additional floor and increase the number of residential units, arguing that the original approval was flawed and that the modifications were minor and did not alter the essential character of the approved development.

The court was required to determine whether the modifications proposed by the developer were consistent with the original approval and whether the changes proposed were minor in nature. The legal issues involved interpreting the terms of the original approval, the scope of modifications permitted under the Development Act 2006 (NSW), and the application of relevant council policies and guidelines. The developer argued that the modifications did not constitute a change in the essential character of the approved development and were thus permissible. The council contended that the modifications were significant and required a new development application.

The court found that the modifications proposed by the developer constituted a change in the essential character of the approved development and thus required a new development application. The court held that the modifications involved a substantial change in the scale and density of the development, which was not contemplated in the original approval. The court also found that the modifications did not fall within the scope of minor modifications permitted under the Development Act. The appeal was dismissed, and the application to modify the approved development was refused. The court ordered that the exhibits be returned, except for exhibits 1 and A.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application to modify Development Application No DA 145/2015 for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 7 units at 4 Higgs Street, Randwick is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

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:	Coogee Developments Pty Ltd v Randwick City Council [2017] NSWLEC 1022
Hearing dates:	28 November 2016
Date of orders:	24 January 2017
Decision date:	24 January 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. The application to modify Development Application No DA 145/2015 for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 7 units at 4 Higgs Street, Randwick is refused. 3. The exhibits are returned with the exception of exhibits 1 and A.
Catchwords:	MODIFICATION: additional unit to approved 4 storey residential flat building containing 8 units - whether the modification is substantially the same as approved development - excessive bulk and scale – unacceptable impact on heritage conservation area - unacceptable visual and acoustic privacy impacts - acceptable internal amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 2012
Cases Cited:	ABD Holdings Pty Ltd v Council of the City of Sydney [2013] NSWLEC 45 Coogee Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1011 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143 Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351 Scrap Realty Pty v Botany Bay City Council (2008) 166 LGERA 342
Category:	Principal judgment
Parties:	Coogee Developments Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Ms H Irish, barrister (Applicant) Mr S Patterson, solicitor (Respondent) Solicitors: Boskovitz & Associates Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/161943
Publication restriction:	No