Eather v Randwick City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Eather v Randwick City Council [2021] NSWLEC 1075

Hearing dates:

3 February 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Applicant’s request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 (in relation to the minimum lot size standard at clause 4.1 of the Randwick Local Environmental Plan 2012), prepared by Solutions Zane Land Use Planning Services, is upheld.

(2)   The appeal is upheld.

(3)   Development Application DA/28/2020 for Torrens Title subdivision of an approved dual occupancy at 3 Hastings Avenue Chifley, is approved subject to the conditions included at Annexure “A”.

(4)   Exhibits 2, 3 and B are returned.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – minimum lot size – compliance with DCP controls – subdivision – consequential changes to building categorisation – precedent

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.9, 8.7

Land and Environment Court Act 1979, s 34AA

Randwick Local Environmental Plan 2012, cll 2.6, 4.1, 4.6

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101

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

Moskovich v Waverley Council [2016] NSWLEC 1015

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Paul Eather (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/287730

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under s. 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against Randwick City Council’s refusal of Development Application No. DA/28/2020 which sought Torrens Title subdivision of an approved dual occupancy at 3 Hastings Avenue, Chifley (Site).

Site and setting

2. I rely on Council’s Statement of Facts and Contentions (Ex 1), for the factual material that follows.

3. The Site is near to trapezoidal in shape, although a little wider to the rear, with a front (south-western) boundary width of 15.240m and rear boundary width of 16.760m. The side boundaries are 46.22m (south-east) and 50.955m (north-west). The Site area is indicated as 766.65m².

4. A two-storey attached dual occupancy exists on the Site. It was approved under DA/350/2018, dated 11 February 2019.

5. Development surrounding the Site is mostly low density residential. However, the built form varies in terms of scale, form and age. A large public reserve is across the road from the Site (Chifley Park).

6. The Site and lands to the north, east and west, generally, are zoned R2 Low Density Residential under the Randwick Local Environmental Plan 2012 (RLEP). Directly opposite…