Hoogstad v Randwick City Council

Case [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

  1. 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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Details
AGLC
Hoogstad v Randwick City Council [2019] NSWLEC 1608
Case
[2019] NSWLEC 1608
Decision Date

CaseChat Overview and Summary

Hoogstad v Randwick City Council involved a dispute between the applicant, Hoogstad, and Randwick City Council regarding the approval of a development application for the demolition of an existing garage and carport and the construction of a new garage and carport. The case was heard in the Land and Environment Court of New South Wales. The primary issue for the court to decide was whether the proposed development should be approved, subject to certain conditions. The applicant sought leave to amend the application by relying on amended plans and argued that the approval of the development would not significantly impact the surrounding environment or contravene relevant planning policies and regulations.

The court considered the merits of the proposed development, including the impact on the surrounding environment, adherence to planning policies, and compliance with relevant legislation. It was determined that the applicant had adequately demonstrated that the proposed development would not have significant adverse environmental effects and would comply with the relevant planning policies and regulations. The court also noted that the amended plans provided a more detailed and accurate representation of the proposed development, which was a valid reason for the amendment. Based on this, the court found that the approval of the development would not significantly impact the surrounding environment or contravene relevant planning policies and regulations.

Accordingly, the court granted the applicant leave to amend the application and approved the development application, subject to the conditions of consent set out in Annexure A. The appeal was also upheld, meaning that the original decision by the council to refuse the development application was overturned. The final orders of the court included granting the applicant leave to amend the application, upholding the appeal, and approving the development application, subject to the conditions of consent. The court's decision provides clarity on the approval process for development applications and the factors that must be considered in determining whether a development should be approved.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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