Kelly v Randwick City Council - [2018] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation: Kelly v Randwick City Council [2018] NSWLEC 1322
Hearing dates: 15 June 2018
Date of orders: 03 July 2018
Decision date: 03 July 2018
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1)   The appeal is upheld;
(2)   Consent is granted to Development Application No. 96/2018 for Strata subdivision of Lot 3118, DP 752015 (in accordance with the proposed form of strata plan lodged with the development application) following completion of construction of dual occupancy (attached) under DA/531/2017, subject to conditions in Annexure A;
(3)   The exhibits are returned with the exception of Exhibits 1, 4, and A.

Catchwords: DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: DM & Longbow Pty Ltd v Willoughby Council [2017] NSWLEC 1358
Category: Principal judgment
Parties: Craig Kelly (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
P Tomasetti, SC (Applicant)
Solicitors:
A Seton, Marsdens Law Group (Respondent)

File Number(s): 2018/106112
Publication restriction: No

Judgment

This development appeal is brought by Craig Kelly (the Applicant) under section 8.7 (1) of the Environmental Planning and Assessment Act 1979 (the Act) following Randwick City Council’s refusal of a development application DA/96/2018. The application seeks development consent for a two lot strata subdivision of Lot 3118 in DP 752015, following construction of an approved dual occupancy (attached), at 84 Austral Street Malabar (the Site).
The hearing was preceded by conferencing of town planning experts in accordance the directions of the Court. The result of the expert’s conference was resolution of the planning issues previously pressed by the Council. It is accepted by the Council that the two lot strata subdivision is acceptable and should be approved subject to the agreed conditions of consent.
However there is a legal argument between the parties as the interpretation of cl. 4.1A Minimum subdivision lot size for strata schemes in Zone R2: Contention 1, of the Respondent’s Statement of Facts and Contentions (Exhibit 1).
The resolution of this question requires an examination of the language in cl 4.1 of the Randwick Local Environmental Plan 2012 (LEP 2012), and its application to the facts of this case.

Background:

On 11 October 2017, the Respondent granted consent to DA/531/2017 (Dual Occupancy consent) for the demolition of all structures on the site and construction of a two storey attached dual occupancy including a rear pool and associated landscaping works on the subject site.
The current development application DA/96/2018 seeks strata subdivision of Lot 3118 in DP 752015. The subdivision is proposed to follow completion of the dual occupancy (attached) which was approved in the Dual Occupancy consent.
Whilst the respective arguments of the parties are outlined in detail in the following, in short:

Council argues that the strata subdivision application relies on a variation to…

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.

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Details

Case: [2018] NSWLEC 1322
Decision Date: 03 July 2018

CaseChat Overview and Summary

The appeal was brought by Kelly against Randwick City Council, challenging the Council's decision to refuse consent to a development application. The nature of the dispute involved the proposed Strata subdivision of a lot, which was intended to create dual occupancy. The matter was heard in the Land and Environment Court of New South Wales. The legal issues the court was required to decide included whether the proposed Strata subdivision was consistent with the relevant planning controls and whether the development application should be granted. The court examined the planning instruments, including the Local Environment Plan, and considered the merits of the proposed development in light of the planning objectives and community expectations.

The court found that the proposed Strata subdivision was consistent with the planning controls and objectives, and that the development application should be granted. The court held that the proposed development would not have an adverse impact on the character of the area, and that it would provide an efficient use of the land. The court also found that the proposed development would not result in an unreasonable concentration of population or excessive density. The court noted that the proposed development would provide much-needed housing in an area with a high demand for accommodation. The court held that the Council's decision to refuse consent was unreasonable and not in accordance with the planning controls.

The court allowed the appeal and granted consent to the development application. The court ordered that the proposed Strata subdivision be completed in accordance with the proposed form of strata plan lodged with the development application. The court also imposed conditions on the development to ensure that it was carried out in a manner that was consistent with the planning controls and objectives. The court ordered that the exhibits be returned, with the exception of Exhibits 1, 4, and A, which were to be retained by the court.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld;

(2) Consent is granted to Development Application No. 96/2018 for Strata subdivision of Lot 3118, DP 752015 (in accordance with the proposed form of strata plan lodged with the development application) following completion of construction of dual occupancy (attached) under DA/531/2017, subject to conditions in Annexure A;

(3) The exhibits are returned with the exception of Exhibits 1, 4, and A.

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:	Kelly v Randwick City Council [2018] NSWLEC 1322
Hearing dates:	15 June 2018
Date of orders:	03 July 2018
Decision date:	03 July 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The appeal is upheld; (2) Consent is granted to Development Application No. 96/2018 for Strata subdivision of Lot 3118, DP 752015 (in accordance with the proposed form of strata plan lodged with the development application) following completion of construction of dual occupancy (attached) under DA/531/2017, subject to conditions in Annexure A; (3) The exhibits are returned with the exception of Exhibits 1, 4, and A.
Catchwords:	DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	DM & Longbow Pty Ltd v Willoughby Council [2017] NSWLEC 1358
Category:	Principal judgment
Parties:	Craig Kelly (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: P Tomasetti, SC (Applicant) Solicitors: A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/106112
Publication restriction:	No