David Mitchell Architects Pty Ltd v Randwick City Council - [2022] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation: David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144
Hearing dates: 27 October 2021, 20-21 January 2022
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1)   The appeal is dismissed.
(2)   Development application DA/297/2020 for partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Kensington) and demolition of existing multi dwelling housing (9 Abbotford Street Kensington); construction of a part 3/4 storey boarding house arranged over a central courtyard with 59 boarding rooms (including for a boarding house manager), basement carparking for 21 cars, 14 motorcycle and 14 bicycles; and tree removal and landscape works at 9-13 Abbotford Street, Kensington is determined by way of refusal.
(3)   Exhibits are returned with the exception of Exhibit G, J and 3.

Catchwords:
DEVELOPMENT APPLICATION – partial demolition of existing dwelling and constriction of a boarding house – whether the development impacts the heritage significance of the item – whether the development is compatible with the character of the locality – whether the maximum building height standard is exceeded – whether the maximum floor space ratio is exceeded – whether the written request to vary the FSR standard satisfies the preconditions – appeal dismissed.

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 8.7
Environmental Planning and Assessment Amendment (Housing) Regulation 2021
Environmental Planning and Assessment Regulation 2000, cl 55
Interpretation Act 1987, ss 5, 30
Randwick Local Environmental Plan 2012, Div 3 Pt 2, cll 1.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 27, 29, 30, 30A
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, Sch 7
State Environmental Planning Policy No 55- Remediation of Land, cl 7
State Environmental Planning Policy (Resources and Energy) 2021

Cases Cited:
Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 137
Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
GGD Danks Street Pty Ltd and CR Danks Street Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1521
HPG Mosman Projects Ltd v Mosman Municipal Council [2021] NSWLEC 1243
HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Woollahra Council v SJD DB2 Pty Ltd [2020] NSWLEC 115

Texts Cited:
NSW Government Gazette No 34 of 29 January 2021
Randwick Comprehensive Development Control Plan 2013
Randwick Heritage Study of March 2021

Category: Principal judgment

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: [2022] NSWLEC 1144
Decision Date: 24 March 2022

CaseChat Overview and Summary

David Mitchell Architects Pty Ltd, the appellant, brought an action against Randwick City Council, the respondent, challenging the refusal of a development application concerning a site in Kensington. The application involved the partial demolition and retention of existing residential buildings at 11 and 13 Abbotford Street, and the demolition of a multi-dwelling housing at 9 Abbotford Street, along with the construction of a boarding house with 59 rooms, basement carparking, and associated landscape works. The case was heard and determined by the Land and Environment Court of New South Wales.

The legal issues before the court included whether the proposed development was consistent with the local environment plan, whether it would result in an unacceptable adverse impact on the character of the area, and whether the proposed design was appropriate in terms of scale, form, and appearance. Furthermore, the court needed to determine if the development would result in an unacceptable adverse impact on the amenity of adjoining land and whether the design would be acceptable in terms of its impact on the character and appearance of the area.

In its judgment, the court found that the proposed development was not consistent with the local environment plan, as it would result in an unacceptable adverse impact on the character of the area. The court also determined that the proposed design was not appropriate in terms of scale, form, and appearance. Furthermore, the court found that the development would result in an unacceptable adverse impact on the amenity of adjoining land. Consequently, the court dismissed the appeal and refused the development application. The exhibits were returned, except for Exhibits G, J, and 3.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA/297/2020 for partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Kensington) and demolition of existing multi dwelling housing (9 Abbotford Street Kensington); construction of a part 3/4 storey boarding house arranged over a central courtyard with 59 boarding rooms (including for a boarding house manager), basement carparking for 21 cars, 14 motorcycle and 14 bicycles; and tree removal and landscape works at 9-13 Abbotford Street, Kensington is determined by way of refusal.

(3) Exhibits are returned with the exception of Exhibit G, J and 3.

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:	David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144
Hearing dates:	27 October 2021, 20-21 January 2022
Date of orders:	24 March 2022
Decision date:	24 March 2022
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application DA/297/2020 for partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Kensington) and demolition of existing multi dwelling housing (9 Abbotford Street Kensington); construction of a part 3/4 storey boarding house arranged over a central courtyard with 59 boarding rooms (including for a boarding house manager), basement carparking for 21 cars, 14 motorcycle and 14 bicycles; and tree removal and landscape works at 9-13 Abbotford Street, Kensington is determined by way of refusal. (3) Exhibits are returned with the exception of Exhibit G, J and 3.
Catchwords:	DEVELOPMENT APPLICATION – partial demolition of existing dwelling and constriction of a boarding house – whether the development impacts the heritage significance of the item – whether the development is compatible with the character of the locality – whether the maximum building height standard is exceeded – whether the maximum floor space ratio is exceeded – whether the written request to vary the FSR standard satisfies the preconditions – appeal dismissed.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 8.7 Environmental Planning and Assessment Amendment (Housing) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, ss 5, 30 Randwick Local Environmental Plan 2012, Div 3 Pt 2, cll 1.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 27, 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7 State Environmental Planning Policy No 55- Remediation of Land, cl 7 State Environmental Planning Policy (Resources and Energy) 2021
Cases Cited:	Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 137 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 GGD Danks Street Pty Ltd and CR Danks Street Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1521 HPG Mosman Projects Ltd v Mosman Municipal Council [2021] NSWLEC 1243 HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Council v SJD DB2 Pty Ltd [2020] NSWLEC 115
Texts Cited:	NSW Government Gazette No 34 of 29 January 2021 Randwick Comprehensive Development Control Plan 2013 Randwick Heritage Study of March 2021
Category:	Principal judgment