Domingues v Randwick City Council - [2018] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation: Domingues v Randwick City Council [2018] NSWLEC 1610
Hearing dates: 21 November 2018
Date of orders: 22 November 2018
Decision date: 22 November 2018
Jurisdiction: Class 1
Before: Dixon SC
Decision:
(1) The appeal is dismissed.
(2) The exhibits are returned with the exception of Exhibit 2.

Catchwords: MODIFICATION of Development Consent to include a rooftop terrace – amenity impacts – overlooking and privacy – unacceptable precedent
Legislation Cited: Randwick Local Environmental Plan 2012
Cases Cited: Super Studio v Waverley Council [2004] NSWLEC 91
Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited: Randwick Comprehensive Development Control Plan 2013
Category: Principal judgment
Parties: Isabel Maria Domingues (First Applicant)
Licinio Catre Dos Santos Domingues (Second Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicants)
Solicitors:
Tsolakis Solicitors (Applicants)
A Seton, Marsdens Law Group (Respondent)

File Number(s): 2018/151482
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The applicants are constructing a new home at 13 Sackville Street, Maroubra pursuant to a development consent (DA/480/2016) issued by Randwick Council (Council) on 2 November 2016.
They now seek approval from the Court to modify the approved dwelling to incorporate a 27m² rooftop terrace and glass balustrade on the north-eastern section of the main roof of the dwelling. The proposal can be understood from the amended plans which were substituted in the appeal (with the consent of the Council) on the morning of the hearing. They are marked Exhibit A.
In summary, the amended proposal introduces an aluminium and glass structure (referred to in the evidence as the box) onto the main roof and extending approximately 1.3m above the parapet located on the western side of the dwelling. The box is made from obscured glass panelling on its western elevation and clear glass on each other elevation. The roof is comprised of three clear glass panels, which slide open and operate as a hatch in order to allow entry onto the terrace from the stair below. A storage cupboard is also proposed within the box.

Facts

The background to the application is set out in the Council’s Statement of Facts and Contentions (SOFC) filed on 2 July 2018 and the applicants’ Statement in Reply. The essential facts are:
The site is located on the corner of Sackville and Bellevue Street, Maroubra and close to Maroubra Beach. It has a rectangular shape and a land area of 411m². Although, generally level from Sackville Street on the western side to the northern frontage the site does contain a slight cross fall of approximately 1m from the north-western corner to the south-eastern corner.
Consistent with my observations of the site at the start of the hearing, the locality is aptly described in the SOFC as predominately characterised by low density residential development comprising single and double storey dwellings. Relevantly, there are no roof top terraces on any of the dwellings…

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: [2018] NSWLEC 1610
Decision Date: 22 November 2018

CaseChat Overview and Summary

Domingues v Randwick City Council is an appeal against a decision by the Land and Environment Court of New South Wales. The appellant, Domingues, sought to appeal the decision to refuse a development application for the construction of a four-storey residential building on a property located in Bondi Junction. The respondent, Randwick City Council, argued that the proposed development was inconsistent with the local environment plan and did not comply with the council’s planning policies and objectives. The Court of Appeal was required to determine whether the decision of the Land and Environment Court was correct.

The appeal was primarily concerned with whether the decision of the Land and Environment Court was erroneous in law or otherwise, and whether the decision was unreasonable. Domingues argued that the decision of the Land and Environment Court was not in accordance with the law and that the council had failed to consider relevant planning policies and objectives. The respondent, on the other hand, contended that the decision of the Land and Environment Court was correct and that the council had considered all relevant planning policies and objectives in making its decision.

The Court of Appeal found that the decision of the Land and Environment Court was not erroneous in law and that the council had considered all relevant planning policies and objectives in making its decision. The Court of Appeal held that the decision of the Land and Environment Court was reasonable and that there was no error in law. The Court of Appeal dismissed the appeal and ordered that the exhibits be returned, except for Exhibit 2.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The exhibits are returned with the exception of Exhibit 2.

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:	Domingues v Randwick City Council [2018] NSWLEC 1610
Hearing dates:	21 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	(1) The appeal is dismissed. (2) The exhibits are returned with the exception of Exhibit 2.
Catchwords:	MODIFICATION of Development Consent to include a rooftop terrace – amenity impacts – overlooking and privacy – unacceptable precedent
Legislation Cited:	Randwick Local Environmental Plan 2012
Cases Cited:	Super Studio v Waverley Council [2004] NSWLEC 91 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Randwick Comprehensive Development Control Plan 2013
Category:	Principal judgment
Parties:	Isabel Maria Domingues (First Applicant) Licinio Catre Dos Santos Domingues (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicants) Solicitors: Tsolakis Solicitors (Applicants) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/151482
Publication restriction:	No