Keith v Randwick City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Keith v Randwick City Council [2025] NSWLEC 1011

Date of orders:

14 January 2025

Decision date:

14 January 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application 726/2023 for demolition of existing structures and construction of a three storey dwelling at 49 Mermaid Avenue, Maroubra is determined by the grant of consent subject to the conditions set out in Annexure A.

(3) The exhibits are returned except for A, B, 1 and 2.

Catchwords:

DEVELOPMENT APPEAL – dwelling house - gross floor area calculations – floor space ratio - streetscape impacts – building envelope – bulk - setbacks

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34AA, 39

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.4A, 6.2, 6.4, 6.7, 6.10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 2, ss 2.10, 2.11, 4.6

Cases Cited:

Chami v Lane Cove Council [2015] NSWLEC 1003

Connoisseur Investments v Sutherland Shire Council [2020] NSWLEC 1181

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Randwick Development Control Plan 2023

Category:

Principal judgment

Parties:

John Keith (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
Mr M Seymour SC (Applicant)
Mr M Astill (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2024/163412

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: John Keith, the Applicant, (Keith) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council’s (Council) deemed refusal of development application number 726/2023 (DA). The DA seeks development consent for a three storey dwelling house with basement, swimming pool, associated excavation and landscaping at 49 Mermaid Avenue, Maroubra.

2. The appeal is a residential appeal and in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), commenced as a conciliation conference. As agreement could not be reached between the parties to resolve the issues, the conciliation conference was terminated, and the hearing commenced immediately.

3. As a result of joint expert reporting and discussions between the parties, the remaining issues pressed by Council were in relation to the breach to the maximum permitted floor space ratio and the scale of development.

4. For the reasons set out below, I find that the proposed development warrants development consent as it is consistent with the character of the area and complies with the vast majority of planning controls.

Amended Application

5. During the hearing, Keith sought leave to amend the DA pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Reg). Unopposed by Council, the Court granted leave pursuant to s 39 of the LEC Act (amended DA). The amendments are generally described as follows:

• Amended architectural plans prepared by MHNDU (architectural plans).

• Lower…