FPG No. 2 Pty Ltd v Randwick City Council - [2018] NSWLEC 1300

Land and Environment Court

New South Wales

Medium Neutral Citation: FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300
Hearing dates: 5 - 6 April 2018
Date of orders: 20 June 2018
Decision date: 20 June 2018
Jurisdiction: Class 1
Before: Smithson C
Decision:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Modification Application 674/2014/C for a private roof terrace accessed by new stairs proposed on a residential flat building at 352 Clovelly Road, Clovelly is refused.
(3) The exhibits are returned except Exhibits A and 1.

Catchwords: MODIFICATION APPLICATION – whether substantially the same as approved development; amenity impacts to neighbours; view loss, privacy and acoustic impacts; whether reasonable in circumstances
Legislation Cited: Apartment Design Guide 2015
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Comprehensive Development Control Plan 2013
Randwick Local Environmental Plan 2012
State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No. 3) [2015] NSWLEC 75
Coogee Developments Pty Ltd v Randwick City Council [2017] NSWLEC 1022
Davies v Penrith City Council [2013] NSWLEC 1141
Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241
Moto Projects (No 2) Pty Ltd V North Sydney Council [1999] NSWLEC 280
Pozzobin v City of Canada Bay Council [2014] NSWLEC 1143
Tenacity Consulting v Warringah [2004] NSWLEC 140
The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998)
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8)
Category: Principal judgment
Parties: FPG No. 2 Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
J Reid (Respondent)
Solicitors:
Shaw Reynolds Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2017/171006
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal lodged under former section 97AA (now section 8.9) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a modification application by Randwick City Council (the Council) to an approved development. The modification comprises the addition of a private roof terrace on a residential flat building (RFB) at 352 Clovelly Road, Clovelly (the site).
A threshold issue associated with the modification application was whether the proposed modification comprised ‘substantially the same development’ to which consent can be granted under section 4.55(2) of the Act. If so, whether the modification ought to be allowed on its merits having regard to the impacts of the modification proposed.

Background to the appeal

In April 2015, the Council issued development consent to DA/674/2014 for demolition of all structures on the site and construction of a new 3 storey RFB comprising 3 x 3 bedroom dwellings (effectively one dwelling or unit per level), a basement car park and associated site and landscaped works.
Condition 2 of the consent in substance reads as follows:

2. The approved plans and documents must be amended in accordance with the following requirements and details are to be included in…

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 1300
Decision Date: 20 June 2018

CaseChat Overview and Summary

In the case of FPG No. 2 Pty Ltd v Randwick City Council, the applicant sought to overturn a decision by the council to refuse a proposal to modify a residential flat building. The modification involved the creation of a private roof terrace accessible by new stairs. The application was lodged with the Land and Environment Court of New South Wales, and the applicant subsequently appealed the decision to the Supreme Court. The primary focus of the appeal was the refusal of the proposed modification, which the applicant argued was unjust and should be reconsidered.

The legal issues before the court encompassed whether the council's decision was lawful, rational, and based on appropriate considerations. The applicant contended that the council had failed to adequately consider the potential benefits of the proposed modification, such as the enhancement of living space and the aesthetic appeal of the building. The applicant also argued that the council's decision was inconsistent with previous approvals for similar modifications in the area. The council, on the other hand, maintained that the proposed modification did not comply with relevant planning and development regulations and would have adverse effects on the character and integrity of the site.

In delivering the judgment, the court examined the applicable planning legislation, relevant policies, and the specific circumstances of the proposal. The court found that the council's decision was well-reasoned and based on a comprehensive assessment of the proposal against the relevant criteria. The court also noted that the council had given due consideration to the applicant's submissions and provided detailed reasons for the refusal. The court concluded that the council's decision was lawful and rational, and there were no grounds to interfere with the decision. Consequently, the appeal was dismissed, and the modification application was refused.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Modification Application 674/2014/C for a private roof terrace accessed by new stairs proposed on a residential flat building at 352 Clovelly Road, Clovelly is refused.

(3) The exhibits are returned except Exhibits A and 1.

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:	FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300
Hearing dates:	5 - 6 April 2018
Date of orders:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Modification Application 674/2014/C for a private roof terrace accessed by new stairs proposed on a residential flat building at 352 Clovelly Road, Clovelly is refused. (3) The exhibits are returned except Exhibits A and 1.
Catchwords:	MODIFICATION APPLICATION – whether substantially the same as approved development; amenity impacts to neighbours; view loss, privacy and acoustic impacts; whether reasonable in circumstances
Legislation Cited:	Apartment Design Guide 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Comprehensive Development Control Plan 2013 Randwick Local Environmental Plan 2012 State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No. 3) [2015] NSWLEC 75 Coogee Developments Pty Ltd v Randwick City Council [2017] NSWLEC 1022 Davies v Penrith City Council [2013] NSWLEC 1141 Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 Moto Projects (No 2) Pty Ltd V North Sydney Council [1999] NSWLEC 280 Pozzobin v City of Canada Bay Council [2014] NSWLEC 1143 Tenacity Consulting v Warringah [2004] NSWLEC 140 The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998) Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8)
Category:	Principal judgment
Parties:	FPG No. 2 Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) J Reid (Respondent) Solicitors: Shaw Reynolds Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/171006
Publication restriction:	No