Haveaux v Randwick City Council - [2022] NSWLEC 1059

Land and Environment Court

New South Wales

Medium Neutral Citation: Haveaux v Randwick City Council [2022] NSWLEC 1059
Hearing dates: 22 and 23 November 2021
Date of orders: 7 February 2022
Decision date: 07 February 2022
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA 220/2021 to reflect the architectural plans which form Exhibit Y in these proceedings.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the agreed amount of $4,750 within 30 days of the date of these orders.
(3) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, seeking a variation to the development standard for height of building, is upheld.
(4) The appeal is upheld.
(5) Consent is granted to Development Application No. DA 220/2021 for the demolition of three existing buildings and associated structures, and the construction of a four-storey boarding house development at 19-23 Mulwarree Avenue, Randwick, subject to the conditions contained in Annexure A.
(6) The exhibits, other than 2, 3, N and Y, are returned.

Catchwords:
DEVELOPMENT APPLICATION – boarding house development – essential services – cl 4.6 written request – solar access – amenity – plan of management – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, ss 34, 39
Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.10
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land
Sydney Water Act 1994, s 73

Cases Cited:
Williamson v Northern Beaches Council [2020] NSWLEC 1110
Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247

Texts Cited:
NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)
Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)
Randwick Comprehensive Development Control Plan 2013

Category: Principal judgment
Parties: Melissa Haveaux (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
R White (Respondent)
Solicitors:
Conomos Legal (Applicant)
Randwick City Council (Respondent)

File Number(s): 2021/188502
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 220/2021 (the Application) by Randwick City Council (the Respondent). The Application sought consent for the demolition of three existing buildings and associated structures, and the construction of a four-storey boarding house development at 19-23 Mulwarree Avenue, Randwick (the site).
Prior to the hearing,…

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: [2022] NSWLEC 1059
Decision Date: 07 February 2022

CaseChat Overview and Summary

The parties in this matter were Haveaux, the applicant, and Randwick City Council, the respondent. The applicant sought to amend a development application and obtain consent for the construction of a four-storey boarding house in Randwick. The dispute involved the approval of the development application, the amendment of architectural plans, and the variation of a development standard for building height. The case was heard in the Land and Environment Court of New South Wales.

The central legal issues that the court had to decide included whether the applicant could amend the development application to reflect the new architectural plans, whether the applicant could vary the development standard for building height, and whether consent should be granted for the proposed development. The court also needed to determine if the applicant should bear the costs incurred by the respondent due to the amendment of the development application.

The court determined that the applicant was entitled to amend the development application to reflect the architectural plans in Exhibit Y. The court also found that the applicant’s request for a variation to the development standard for building height was valid. The court held that the applicant’s development met the requirements of the relevant planning schemes and that the proposed development would not have a significant impact on the environment. The court granted the applicant’s request for consent to proceed with the development of a four-storey boarding house at the specified location, subject to certain conditions. The court ordered the applicant to pay the respondent’s costs incurred due to the amendment of the development application. The court returned all exhibits except for those identified as 2, 3, N, and Y.

Orders

Orders of the court

The Court orders that:

(1) The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA 220/2021 to reflect the architectural plans which form Exhibit Y in these proceedings.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the agreed amount of $4,750 within 30 days of the date of these orders.

(3) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, seeking a variation to the development standard for height of building, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application No. DA 220/2021 for the demolition of three existing buildings and associated structures, and the construction of a four-storey boarding house development at 19-23 Mulwarree Avenue, Randwick, subject to the conditions contained in Annexure A.

(6) The exhibits, other than 2, 3, N and Y, are returned.

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

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Medium Neutral Citation:	Haveaux v Randwick City Council [2022] NSWLEC 1059
Hearing dates:	22 and 23 November 2021
Date of orders:	7 February 2022
Decision date:	07 February 2022
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA 220/2021 to reflect the architectural plans which form Exhibit Y in these proceedings. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the agreed amount of $4,750 within 30 days of the date of these orders. (3) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, seeking a variation to the development standard for height of building, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application No. DA 220/2021 for the demolition of three existing buildings and associated structures, and the construction of a four-storey boarding house development at 19-23 Mulwarree Avenue, Randwick, subject to the conditions contained in Annexure A. (6) The exhibits, other than 2, 3, N and Y, are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house development – essential services – cl 4.6 written request – solar access – amenity – plan of management – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34, 39 Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Water Act 1994, s 73
Cases Cited:	Williamson v Northern Beaches Council [2020] NSWLEC 1110 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247
Texts Cited:	NSW Department of Planning and Environment, Apartment Design Guide, (July 2015) Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021) Randwick Comprehensive Development Control Plan 2013
Category:	Principal judgment
Parties:	Melissa Haveaux (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) R White (Respondent) Solicitors: Conomos Legal (Applicant) Randwick City Council (Respondent)
File Number(s):	2021/188502
Publication restriction:	No