Hayek v Randwick City Council - [2024] NSWLEC 1631

Land and Environment Court

New South Wales

Medium Neutral Citation: Hayek v Randwick City Council [2024] NSWLEC 1631
Hearing dates: 15, 16 August 2024
Date of orders: 09 October 2024
Decision date: 09 October 2024
Jurisdiction: Class 1
Before: Targett C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development application no DA/132/2023 for the demolition of an existing residential flat building and construction of a four-storey residential flat building containing four units, basement parking and related landscaping at Lot 8 In Deposited Plan 8843, known as 21 Baden Street Coogee, is refused consent.
(3) The exhibits are returned, except for Ex B, G, 2 and 4.

Catchwords:
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a residential flat building – exceedance of the height of buildings standard – exceedance of the floor space ratio standard – amenity of adjoining properties

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.6, 4.15, 8.7, 8.10, 8.11
Land and Environment Court Act 1979, ss 17, 34, 39
Randwick Local Environmental Plan 2012 (Amendment No 9)
Randwick Local Environmental Plan 2012, Sch 5, cll 1.8A, 4.3, 4.4, 4.6, 5.10, 6.2, 6.4, 6.7, 6.10, 6.11
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:
Bettar v Council of the City of Sydney [2014] NSWLEC 1070
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582
Randwick v Micaul Holdings (2016) 225 LGERA 94; [2016] NSWLEC 7
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Joseph Hayek (First Applicant)
Karen Hayek (Second Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
N Hammond and A Hannam (Applicants)
A Seton (Solicitor) (Respondent)
Solicitors:
Maddocks (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 2023/267317
Publication restriction: Nil

Judgment

COMMISSIONER:

This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s deemed refusal of the applicant’s development application (DA/132/2023) (Development Application) seeking consent for the demolition of an existing residential flat building, construction of a four-storey residential flat building containing four units, basement parking, rooftop terrace and related landscaping at Lot 8 in Deposited Plan 8843, known as 21 Baden Street, Coogee (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

The Development Application was lodged with the respondent on 13 April 2023.
The Development Application was externally referred to Ausgrid (pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP)) and NSW Crown…

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.

Keep reading for free

Create a free CaseChat account to read Hayek v Randwick City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWLEC 1631
Decision Date: 09 October 2024

CaseChat Overview and Summary

Hayek, the appellant, sought to appeal against the decision of Randwick City Council, the respondent, to refuse consent for a development application for a four-storey residential flat building on a property at 21 Baden Street, Coogee. The dispute was brought to the Land and Environment Court of New South Wales, which was asked to consider whether the refusal was appropriate and if the appeal should be upheld. The court was required to decide whether the respondent’s decision to refuse consent for the development application was legally sound, and if the appellant's appeal was justified on the basis that the decision was unreasonable or based on irrelevant considerations.

The court considered whether the respondent’s decision to refuse consent for the development application was legally sound and whether the appellant's appeal was justified. The court examined the merits of the application and the evidence presented by both parties, including the potential impact on the surrounding environment and the appropriateness of the proposed development in the context of local planning policies and objectives. The court also considered whether the respondent had properly exercised its discretion in reaching its decision. The court concluded that the respondent had acted within its statutory powers and exercised its discretion appropriately, and that the decision to refuse consent was not unreasonable or based on irrelevant considerations.

The court dismissed the appeal and upheld the respondent’s decision to refuse consent for the development application. The court found that the respondent had properly considered the relevant planning policies and objectives, and that the proposed development was not consistent with the character of the area or the surrounding environment. The court also found that the appellant had not demonstrated that the respondent’s decision was unreasonable or based on irrelevant considerations. As a result, the court refused consent for the development application and ordered that the exhibits be returned, except for Ex B, G, 2 and 4.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development application no DA/132/2023 for the demolition of an existing residential flat building and construction of a four-storey residential flat building containing four units, basement parking and related landscaping at Lot 8 In Deposited Plan 8843, known as 21 Baden Street Coogee, is refused consent.

(3) The exhibits are returned, except for Ex B, G, 2 and 4.

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:	Hayek v Randwick City Council [2024] NSWLEC 1631
Hearing dates:	15, 16 August 2024
Date of orders:	09 October 2024
Decision date:	09 October 2024
Jurisdiction:	Class 1
Before:	Targett C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application no DA/132/2023 for the demolition of an existing residential flat building and construction of a four-storey residential flat building containing four units, basement parking and related landscaping at Lot 8 In Deposited Plan 8843, known as 21 Baden Street Coogee, is refused consent. (3) The exhibits are returned, except for Ex B, G, 2 and 4.
Catchwords:	DEVELOPMENT APPLICATION – demolition of existing structures and construction of a residential flat building – exceedance of the height of buildings standard – exceedance of the floor space ratio standard – amenity of adjoining properties
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.6, 4.15, 8.7, 8.10, 8.11 Land and Environment Court Act 1979, ss 17, 34, 39 Randwick Local Environmental Plan 2012 (Amendment No 9) Randwick Local Environmental Plan 2012, Sch 5, cll 1.8A, 4.3, 4.4, 4.6, 5.10, 6.2, 6.4, 6.7, 6.10, 6.11 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Cases Cited:	Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 Randwick v Micaul Holdings (2016) 225 LGERA 94; [2016] NSWLEC 7 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Joseph Hayek (First Applicant) Karen Hayek (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: N Hammond and A Hannam (Applicants) A Seton (Solicitor) (Respondent) Solicitors: Maddocks (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2023/267317
Publication restriction:	Nil