Gabriel Stefanidis v Randwick City Council - [2017] NSWLEC 1307

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Gabriel Stefanidis v Randwick City Council [2017] NSWLEC 1307
Hearing dates: 25 - 26 May 2017
Date of orders: 26 May 2017
Decision date: 26 May 2017
Jurisdiction: Class 1
Before: Dickson, C
Decision:
The orders of the Court are:
(1) The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld,
(2) The appeal is upheld;
(3) Consent is granted to development application number DA/828/2016 for the demolition of existing structures. Torrens title subdivision into two lots. Construction of two by two storey semidetached dwellings with partial basement level car parking, landscaping and associated works, (variation to lot sizes) at lot 28 DP36113 22 Windsor Street, Matraville; subject to conditions contained in Exhibit 4 and the following additional operational condition;
63A a subdivision certificate for the subdivision of land approved by this consent must not be issued until after construction of the two buildings approved under the consent has reached lockup stage, which includes the construction of floors, walls, ceilings, roofs, and with all external doors and windows in place, but before any kitchens and bathrooms have been installed in those buildings. The lots in the approved subdivision must be created after construction of the two buildings approved under this consent has reached lockup stage but before any kitchens and bathrooms being installed in those buildings.
(4) The exhibits will be returned with the exception of Exhibit 2, 4, A and B, and the Applicant's Class 1 application.
Catchwords: DEVELOPMENT APPEAL: Subdivision and constriction of semi detached dwellings – variation to minimum lot size – variation request – consistency with streetscape – effect of precedent.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGERA 21
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Wehbe v Pittwater Council (2007) NSWLEC 827
Vescio v Many Council, [2012] NSWLEC 1098
Bellenger v Randwick City Council [2017] NSWLEC 1 Goldin v Minister for Transport (2002) 121 LGERA 101
Trinvass Pty Limited v Council of the City of Sydney [2015] NSWLEC 151
Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties: Gabriel Stefanidis (Applicant)
Randwick City Council (Respondent)
Representation: Mr J Johnston (Solicitor) (Applicant)
Mr S Patterson (Solicitor) (Respondent)

File Number(s): 2017/34261
Publication restriction: No

EX TEMPORE JUDGMENT

COMMISSIONER: In November 2016 Mr Stefanidis lodged a development application with Randwick City Council, DA/828/216. The application sought consent for: the demolition of existing structures; Torrens title subdivision into two lots; construction of two by two storey semi-detached dwellings with partial basement level car parking; landscaping and associated works. The application relied on a variation to lot size. The proposal is located at 22 Windsor Street, Matraville. The appeal seeks to overturn council's refusal of the development application.
The appeal was subject to mandatory conciliation (34AA of the Land and Environment Court Act1979 "LEC Act")…

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: [2017] NSWLEC 1307
Decision Date: 26 May 2017

CaseChat Overview and Summary

Gabriel Stefanidis has appealed to the Land and Environment Court of New South Wales against a decision by Randwick City Council to object to a development application. The application, numbered DA/828/2016, pertains to the demolition of existing structures, subdivision of the land into two lots, and the construction of two two-storey semidetached dwellings with a partial basement level car park, landscaping, and associated works at 22 Windsor Street, Matraville. The Council's objection was pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012. The Court was required to determine whether the objection was justified and whether the proposed development would comply with the relevant planning laws and environmental considerations.

The Court examined the provisions of the Randwick Local Environmental Plan 2012 and considered the implications of the proposed development on the surrounding area. It assessed whether the development would have an unacceptable impact on the character of the area, the amenity of neighbouring properties, and the overall sustainability of the site. Additionally, the Court reviewed the evidence provided by both parties, including expert reports and submissions, to determine if the proposed development met the necessary standards and criteria outlined in the planning legislation.

After careful consideration of the evidence and arguments presented, the Court concluded that the Council's objection was not well-founded. The Court found that the proposed development would not have an unacceptable impact on the character of the area, nor would it adversely affect the amenity of neighbouring properties. The Court also determined that the development complied with the relevant planning laws and environmental considerations. As a result, the Court upheld the appeal and granted consent to the development application, subject to specified conditions that aim to mitigate any potential impacts on the surrounding environment and community.

The Court's orders include the upholding of the objection, the granting of consent for the development application, and the imposition of specific conditions to be met before the subdivision of the land and the installation of kitchens and bathrooms in the proposed buildings. The Court also directed that the exhibits be returned, with certain exceptions, to the parties involved. The decision reflects the Court's consideration of the planning legislation, environmental factors, and the overall impact of the proposed development on the local community.

Orders

Orders of the court

The orders of the Court are:

(1) The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld,

(2) The appeal is upheld;

(3) Consent is granted to development application number DA/828/2016 for the demolition of existing structures. Torrens title subdivision into two lots. Construction of two by two storey semidetached dwellings with partial basement level car parking, landscaping and associated works, (variation to lot sizes) at lot 28 DP36113 22 Windsor Street, Matraville; subject to conditions contained in Exhibit 4 and the following additional operational condition;

63A a subdivision certificate for the subdivision of land approved by this consent must not be issued until after construction of the two buildings approved under the consent has reached lockup stage, which includes the construction of floors, walls, ceilings, roofs, and with all external doors and windows in place, but before any kitchens and bathrooms have been installed in those buildings. The lots in the approved subdivision must be created after construction of the two buildings approved under this consent has reached lockup stage but before any kitchens and bathrooms being installed in those buildings.

(4) The exhibits will be returned with the exception of Exhibit 2, 4, A and B, and the Applicant's Class 1 application.

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:	Gabriel Stefanidis v Randwick City Council [2017] NSWLEC 1307
Hearing dates:	25 - 26 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: (1) The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld, (2) The appeal is upheld; (3) Consent is granted to development application number DA/828/2016 for the demolition of existing structures. Torrens title subdivision into two lots. Construction of two by two storey semidetached dwellings with partial basement level car parking, landscaping and associated works, (variation to lot sizes) at lot 28 DP36113 22 Windsor Street, Matraville; subject to conditions contained in Exhibit 4 and the following additional operational condition; 63A a subdivision certificate for the subdivision of land approved by this consent must not be issued until after construction of the two buildings approved under the consent has reached lockup stage, which includes the construction of floors, walls, ceilings, roofs, and with all external doors and windows in place, but before any kitchens and bathrooms have been installed in those buildings. The lots in the approved subdivision must be created after construction of the two buildings approved under this consent has reached lockup stage but before any kitchens and bathrooms being installed in those buildings. (4) The exhibits will be returned with the exception of Exhibit 2, 4, A and B, and the Applicant's Class 1 application.
Catchwords:	DEVELOPMENT APPEAL: Subdivision and constriction of semi detached dwellings – variation to minimum lot size – variation request – consistency with streetscape – effect of precedent.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGERA 21 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) NSWLEC 827 Vescio v Many Council, [2012] NSWLEC 1098 Bellenger v Randwick City Council [2017] NSWLEC 1 Goldin v Minister for Transport (2002) 121 LGERA 101 Trinvass Pty Limited v Council of the City of Sydney [2015] NSWLEC 151 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Gabriel Stefanidis (Applicant) Randwick City Council (Respondent)
Representation:	Mr J Johnston (Solicitor) (Applicant) Mr S Patterson (Solicitor) (Respondent)
File Number(s):	2017/34261
Publication restriction:	No