Dugandzic v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dugandzic v Randwick City Council [2023] NSWLEC 1319

Hearing dates:

14-15 December 2022, 15 March 2023

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No 172/2022, for a mixed-use development at 6, 8 and 10 Bowral Street, Kensington, is refused.

(3) The exhibits, other than 1 and 6, are returned.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – exceedance of the height of buildings development standard – design excellence

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 39

Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, 6.2, 6.8, 6.11, 6.14, 6.17, 6.20

Cases Cited:

Toga Addison Pty Ltd atf Toga Addison Unit Trust v Randwick City Council [2021] NSWLEC 1580

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Darijo Dugandzic (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/140932

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 172/2022 for the demolition of existing structures and the construction of a part six, part nine storey mixed use development comprised of a residential flat building and commercial premises, with shared way, basement parking and landscaping (the proposal), at 6-10 Bowral Street, Kensington (the site), by Randwick City Council (the Council).

2. The appeal was subject to conciliation on 2 September 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

Issues

3. The Council’s contentions can be summarised into three fundamental issues, as follows:

• The proposal does not provide a share way/laneway of a kind or nature envisaged by the Randwick Comprehensive Development Control Plan 2013 (DCP 2013) for the Kensington Town Centre.

• The written request to contravene the height of buildings development standard does not satisfy the jurisdictional pre-requisites under cl 4.6(4)(a) of the Randwick Local Environmental Plan 2012 (LEP 2012).

• The proposal fails to exhibit design excellence pursuant to cl 6.11 of LEP 2012 because it does not achieve a high standard of architectural design, materials and detailing appropriate to the building type, as demonstrated by the inadequate floor to ceiling height on the…