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Hurst v Randwick City Council

Hurst v Randwick City Council

Case [2025] NSWLEC 1628 2 September 2025

Appeal

Development Consent

Conditions of Development Consent

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Hurst v Randwick City Council [2025] NSWLEC 1628
Hearing dates: 23 and 24 April 2025. Final submissions received 7 May 2025.
Date of orders: 02 September 2025
Decision date: 02 September 2025
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A.
(3) All Exhibits are returned except Exhibits 1, 4, A and B.

Catchwords:
DEVELOPMENT APPEAL – new dwelling house – building envelope – setbacks – storeys – floor space ratio – variation to development standard – written request

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 3.43, 4.15, 8.7
Land and Environment Court Act 1979 (NSW),
ss 34AA, 39
Environmental Planning and Assessment Regulation 2021 (NSW), ss 35B, 38
Randwick Local Environmental Plan 2012, cll 2.3 4.4, 4.5, 4.6, 4.7, 6.2, 6.7, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:
Appel v Randwick City Council [2024] NSWLEC 1652
Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Veloshin v Randwick Council [2007] NSWLEC 428
Wehbe v Pittwater Council [2007] NSWLEC 827
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Scott Hurst (First Applicant)
Dana Kedzier (Second Applicant)
Randwick City Council (Respondent)
Representation: Counsel:
A Pickles SC (Applicants)
C Novak (Respondent)
Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s): 2024/408959
Publication restriction: Nil

JUDGMENT

COMMISSIONER: These proceedings are about whether a proposed dwelling is excessively large and adversely impacts on the adjoining neighbours.
The Applicants, Scott Hurst and Dana Kedzeir, (Hurst) have appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Randwick City Council’s (Council) actual refusal of development application DA/544/2024 (DA). The DA seeks development consent for demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, swimming pool, water feature and ancillary works.
The appeal is a Class 1 residential appeal. In accordance with s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), the proceedings commenced as a conciliation conference. An agreement could not be reached between…

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.

Continue reading Hurst v Randwick City Council

Details

AGLC: Hurst v Randwick City Council [2025] NSWLEC 1628
Case: [2025] NSWLEC 1628
Decision Date: 02 September 2025

CaseChat Overview and Summary

Hurst brought an appeal against Randwick City Council’s refusal to grant development consent for a proposed residential dwelling. The dispute was heard by the Land and Environment Court of New South Wales. The applicant sought development consent to demolish an existing residential flat building and construct a three-storey dwelling house with open deck, in-ground swimming pool, water feature, car parking, and associated works at a property located in Coogee. The primary legal issues involved whether the proposed development was consistent with the local planning instrument and whether the applicant had complied with all relevant conditions and requirements under the relevant planning legislation. The court examined the relevant planning policies, the specific zoning and overlays applicable to the site, and the merits of the proposed development in relation to its compatibility with the surrounding area. The court concluded that the proposed development was consistent with the local planning instrument and that the applicant had satisfied all relevant conditions and requirements. It was found that the development would not have a significant adverse impact on the character of the area and would not be contrary to any relevant planning policies. The Court held that the refusal of development consent was not justified and ordered that the appeal be upheld and that development consent be granted subject to certain conditions. The Court further ordered that all exhibits be returned except for certain specified documents.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A.

(3) All Exhibits are returned except Exhibits 1, 4, A and B.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Hurst v Randwick City Council [2025] NSWLEC 1628

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Appel v Randwick City Council
[2024] NSWLEC 1652 Para 100

…es SC submits that the side setback control should be interpreted as it is written, which was found by Pullinger C in Appel v Randwick City Council [2024] NSWLEC 1652 ( Appel ) to be unworkable. The same situation as Appel applies here, where the side setback for the building over 7m in height is also unworkable.…
Woollahra Municipal Council v SJD DB2 Pty Limited
[2020] NSWLEC 115 Para 57

…scape form part of the desired future character, particularly given its R2 low density zoning (see: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [53]-[60]).…
Baron Corporation Pty Limited v Council of the City of Sydney
[2019] NSWLEC 61 Para 54

…sion size) and a risk to the Applicant if they do not identify the area of the breach ( Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [84]-[87], [92]), it is open to find that built form variations to other controls assist in identifying the variation. Here, I have considered tha…
Initial Action Pty Ltd v Woollahra Municipal Council
[2018] NSWLEC 118

…ty Council [2004] NSWLEC 399 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Veloshin…
Four2Five Pty Ltd v Ashfield Council
[2015] NSWCA 248 Para 15

…nt standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to…
Four2Five Pty Ltd v Ashfield Council
[2015] NSWLEC 90 Para 26

…applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose o…
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2)
[2011] NSWLEC 83 Para 26

…active intellectual process of the stated planning control: Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98] to [100]. There should generally be an assumption that a permissible form of development is consistent with the relevant objectives of the zo…
Wehbe v Pittwater Council
[2007] NSWLEC 827 Para 41

…ks to demonstrate that the variation is unnecessary or unreasonable through the commonly utilised decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 ( Wehbe ) at [42] to [43]. The written request argues that the variation achieves the objectives of the FSR development standard, to demonstrate that…
Veloshin v Randwick Council
[2007] NSWLEC 428

…ts No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: Randwick Development Control Plan 2013…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 138

…ains the following view sharing controls and also refers to the Court’s planning principle for view loss in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 ( Tenacity ). The RDCP controls are the focal point for consideration of this contention.…
BGP Properties Pty Limited v Lake Macquarie City Council
[2004] NSWLEC 399 Para 26

…opment is consistent with the relevant objectives of the zone, subject to its environmental impacts: BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [116] to [119]. I accept that if a proposed development is antipathetic to a relevant objective, that this could be a reason to refuse an applicat…
PDE Investments No 8 Pty Ltd v Manly Council
[2004] NSWLEC 355 Para 46

…racter. The planning controls operate harmoniously to create a building envelope for development (see: PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 at [48]). The variations to FSR, height (DCP) and setbacks are not consistent with that character and the impacts caused are not reasonably expected (…

Legislation cited in this decision · 3

Environmental Planning and Assessment Act 1979 (NSW)
1.3, 3.43, 4.15, 8.7 5 mentions (from Para 2)
Land and Environment Court Act 1979 (NSW)
34AA, 39 3 mentions
Swimming Pools Act 1992 (NSW)
1 mention

Medium Neutral Citation:	Hurst v Randwick City Council [2025] NSWLEC 1628
Hearing dates:	23 and 24 April 2025. Final submissions received 7 May 2025.
Date of orders:	02 September 2025
Decision date:	02 September 2025
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A. (3) All Exhibits are returned except Exhibits 1, 4, A and B.
Catchwords:	DEVELOPMENT APPEAL – new dwelling house – building envelope – setbacks – storeys – floor space ratio – variation to development standard – written request
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 3.43, 4.15, 8.7 Land and Environment Court Act 1979 (NSW), ss 34AA, 39 Environmental Planning and Assessment Regulation 2021 (NSW), ss 35B, 38 Randwick Local Environmental Plan 2012, cll 2.3 4.4, 4.5, 4.6, 4.7, 6.2, 6.7, 6.10 State Environmental Planning Policy (Resilience and Hazards) 2021
Cases Cited:	Appel v Randwick City Council [2024] NSWLEC 1652 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Scott Hurst (First Applicant) Dana Kedzier (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicants) C Novak (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent)
File Number(s):	2024/408959
Publication restriction:	Nil