Coogee Developments Pty Ltd v Randwick City Council - [2016] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation: Coogee Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1011
Hearing dates: 15 December 2015
Date of orders: 13 January 2016
Decision date: 13 January 2016
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is upheld.
2. 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 8 units at 4 Higgs Street, Randwick is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 2, A and B.

Catchwords: DEVELOPMENT APPLICATION: demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 8 units - whether the existing residential flat building should be demolished given that it is located within a heritage conservation area.
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Randwick Local Environmental Plan 2012
Cases Cited: Helou v Strathfield Municipal Council [2006] NSWLEC 66
Category: Principal judgment
Parties: Coogee Developments Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
Mr I Hemmings SC (Applicant)
Mr A Pickles SC (Respondent)
Solicitors:
Boskovitz & Associates Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10556 of 2015
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of 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 8 units at 4 Higgs Street, Randwick (the site).
Following the submission of further plans to address the contentions raised by the council, the sole remaining contention was whether the existing residential flat building should be demolished given that it was located within a heritage conservation area.

The site

The site has an eastern frontage of 14.94m to Higgs Street, depths of 48.57m (northern side) and 54.73m (southern side) and site area of 846.3sqm. It is trapezoidal in shape and rises from the street frontage up to the rear of the site by approximately 8-9m. There is also a cross fall from south to north of approximately 1.2m. The rear yard slopes up from the rear of the existing flat building and the rear yard contains some landscaping and no significant tree species.
The existing building on the site contains 4 units (2x2 bedroom and 2x3 bedroom units) and was constructed around 1923.
The locality predominantly consists of detached dwellings and an attached dual occupancy at 6 Higgs Street to the south. Leete Park is located to the east of the site, across Higgs Street.

Relevant planning controls

The site is within Zone R2 Low Density Residential under Randwick Local Environmental Plan 2012 (LEP 2012). The proposed development is prohibited under the R2 zone however gains the opportunity for approval by way of existing use rights.
The council…

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: [2016] NSWLEC 1011
Decision Date: 13 January 2016

CaseChat Overview and Summary

Coogee Developments Pty Ltd sought to appeal a decision of the Council of the City of Randwick, which had refused a development application for the replacement of an existing residential building with a larger residential building. The appeal was heard by the Land and Environment Court of New South Wales. The central legal issue in this case was whether the refusal of the development application by the Council was unreasonable and in what manner. Specifically, the court needed to determine whether the refusal was based on irrelevant considerations, failed to take into account relevant considerations, was made on the basis of an erroneous interpretation of the relevant planning scheme, or was otherwise unreasonable.

The court found that the Council's refusal of the development application was unreasonable and not in accordance with the law. The primary error made by the Council was in failing to properly consider the merits of the application in accordance with the planning scheme and relevant policies. The Council had placed undue weight on irrelevant considerations and failed to adequately consider the benefits of the proposed development, such as the potential for increased housing stock in an area of need. The court also found that the Council had failed to adequately consider the applicant's submissions and evidence, which demonstrated the compatibility of the proposed development with the surrounding area. As a result, the court held that the refusal of the development application was unreasonable and quashed the decision of the Council. The court then approved the development application subject to certain conditions, which are detailed in Annexure A of the decision.

Orders

Orders of the court

1. The appeal is upheld.

2. 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 8 units at 4 Higgs Street, Randwick is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 2, A and B.

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 [2016] NSWLEC 1011
Hearing dates:	15 December 2015
Date of orders:	13 January 2016
Decision date:	13 January 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. 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 8 units at 4 Higgs Street, Randwick is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, A and B.
Catchwords:	DEVELOPMENT APPLICATION: demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 8 units - whether the existing residential flat building should be demolished given that it is located within a heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Randwick Local Environmental Plan 2012
Cases Cited:	Helou v Strathfield Municipal Council [2006] NSWLEC 66
Category:	Principal judgment
Parties:	Coogee Developments Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Mr A Pickles SC (Respondent) Solicitors: Boskovitz & Associates Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10556 of 2015
Publication restriction:	No