Hoogstad v Randwick City Council

[2019] NSWLEC 1608

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hoogstad v Randwick City Council [2019] NSWLEC 1608
Hearing dates:	Conciliation Conference on 19 September 2019
Date of orders:	10 December 2019
Decision date:	10 December 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The applicant is granted leave to amend the application by relying on the amended plans listed in Condition 1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development Application No. 434/2018 for the demolition of the existing garage and carport located on the northern portion of the site and the construction of a new enlarged garage and carport which is sited up to 450mm from the rear (western) boundary, 900mm from the side (part southern) boundary and up to 655mm from the front boundary, at 238-242 Alison Road, Randwick, is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Nore Hoogstad (Applicant) Randwick City Council (Repsondent)
Representation:	Counsel: L Saw (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/24326
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 434/2018 for the replacement of the existing separate garage with a new garage (the proposal) at 238-242 Alison Road, Randwick (the site) by Randwick City Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 19 September 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 5.10(4) of the Randwick Local Environmental Plan 2012 (LEP 2012), as the site is listed as a local heritage item under Schedule 5 of LEP 2012 (Item 262).

6. Pursuant to cl 5.10(4) of LEP 2012, I have considered the effect of the proposal on the heritage significance of the Victorian Italianate Revival villa on the site. I am satisfied that the proposal to replace the existing separate garage, which was a later addition, will not impact on the identified heritage significance of the villa, because it is a separate, deferential building to the villa and it replaced an existing structure of similar proportions.

Orders

7. The orders of the Court are:

1. The applicant is granted leave to amend the application by relying on the amended plans listed in Condition 1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 434/2018 for the demolition of the existing garage and carport located on the northern portion of the site and the construction of a new enlarged garage and carport which is sited up to 450mm from the rear (western) boundary, 900mm from the side (part southern) boundary and up to 655mm from the front boundary, at 238-242 Alison Road, Randwick, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (315 KB, pdf)

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Decision last updated: 11 December 2019