Kingsford Property Developments v Randwick City Council - [2019] NSWLEC 1486

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486
Hearing dates: 9 to 10 September 2019
Date of orders: 15 October 2019
Decision date: 15 October 2019
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) Leave is granted to rely on: Amended DA and Class 1 appeal application filed on 10 September 2019; Draft Strata Plan, dated 5 September 2019; and amended conditions of consent, dated 25 September 2019.
(2) The appeal is upheld.
(3) Development Application (DA) 798/2018 which relates to demolition of existing structures, construction of a two storey dual occupancy (attached) dwellings with garages and strata subdivision into two lots on Lot 9 DP 253076, also known as 1249 Anzac Parade, Chifley is approved subject to conditions in Annexure A.
(4) The exhibits, except for Exhibits 1, 2, 3, A and C are returned.

Catchwords: DEVELOPMENT APPLICATION – two lot strata subdivision – dual occupancy (attached) dwellings – minimum lot size – character
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environmental Plan 2012
Real Property Act 1900
Roads Act 1993
Strata Schemes Development Act 2015
Cases Cited: DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358
Kelly v Randwick City Council [2018] NSWLEC 1322
Texts Cited: Randwick Development Control Plan 2013
Category: Principal judgment
Parties: Kingsford Property Developments (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
J Palmer (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)
Solicitors:
Pikes Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2019/18565
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 798/2018 by Randwick City Council (hereafter the Council) which relates to demolition of existing structures, construction of a two storey dual occupancy (attached) dwellings with garaging, and strata subdivision into two lots on Lot 9 DP 253076, also known as 1249 Anzac Parade, Chifley (hereafter the site).

Background

The DA was submitted to Council on 14 November 2018, and after notification made consistent with relevant planning controls, one submission in objection was received, identifying issues that related to privacy and overshadowing impacts. This objector was also heard at the conciliation conference and their submission is tendered into evidence by agreement of the parties.
On 16 November 2018, the Council sought concurrence from NSW Roads and Maritime Services (RMS), as Anzac Parade on which the site fronts, is a classified road and any access works therefore require approval, pursuant to s 138 of the Roads Act 1993. A request for further information was received from RMS on 7 December 2018, and subsequent to amended plans being provided, RMS gave its concurrence, which is included in the conditions of consent.
The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
As a result, the Land and Environment Court (the Court) ordered a conciliation between the…

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: [2019] NSWLEC 1486
Decision Date: 15 October 2019

CaseChat Overview and Summary

Kingsford Property Developments (the applicant) sought to appeal a decision of the Randwick City Council (the Council) to refuse consent to a development application (DA) for the demolition of existing structures and the construction of two storey dual occupancy (attached) dwellings with garages and a strata subdivision into two lots on Lot 9 DP 253076, also known as 1249 Anzac Parade, Chifley. The applicant sought to have the decision reviewed on the basis of alleged errors in law, improper exercise of discretion, and failure to take into account a relevant consideration. The Council opposed the appeal.

The central legal issue before the Court was whether the Council had correctly exercised its discretion in refusing the applicant’s DA. The Court was required to determine whether the Council had made an error of law, exercised its discretion improperly, or failed to consider a relevant matter. The applicant argued that the Council had failed to consider the benefits of the proposed development to the local community, and that the decision was therefore improper.

In determining the appeal, the Court held that the Council had erred in not considering the benefits of the proposed development to the local community. The Court held that the Council had failed to take into account a relevant consideration and that the decision was therefore improper. The Court found that the proposed development would bring significant benefits to the local community, and that these benefits should have been considered by the Council in making its decision. The Court held that the appeal should be upheld, and that the DA should be approved subject to certain conditions.

The Court ordered that leave be granted to rely on certain documents, that the appeal be upheld, and that the DA be approved subject to certain conditions. The Court further ordered that certain exhibits be returned, except for certain specified documents.

Orders

Orders of the court

The Court orders:

(1) Leave is granted to rely on: Amended DA and Class 1 appeal application filed on 10 September 2019; Draft Strata Plan, dated 5 September 2019; and amended conditions of consent, dated 25 September 2019.

(2) The appeal is upheld.

(3) Development Application (DA) 798/2018 which relates to demolition of existing structures, construction of a two storey dual occupancy (attached) dwellings with garages and strata subdivision into two lots on Lot 9 DP 253076, also known as 1249 Anzac Parade, Chifley is approved subject to conditions in Annexure A.

(4) The exhibits, except for Exhibits 1, 2, 3, A and C are returned.

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:	Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486
Hearing dates:	9 to 10 September 2019
Date of orders:	15 October 2019
Decision date:	15 October 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to rely on: Amended DA and Class 1 appeal application filed on 10 September 2019; Draft Strata Plan, dated 5 September 2019; and amended conditions of consent, dated 25 September 2019. (2) The appeal is upheld. (3) Development Application (DA) 798/2018 which relates to demolition of existing structures, construction of a two storey dual occupancy (attached) dwellings with garages and strata subdivision into two lots on Lot 9 DP 253076, also known as 1249 Anzac Parade, Chifley is approved subject to conditions in Annexure A. (4) The exhibits, except for Exhibits 1, 2, 3, A and C are returned.
Catchwords:	DEVELOPMENT APPLICATION – two lot strata subdivision – dual occupancy (attached) dwellings – minimum lot size – character
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 Real Property Act 1900 Roads Act 1993 Strata Schemes Development Act 2015
Cases Cited:	DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 Kelly v Randwick City Council [2018] NSWLEC 1322
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Kingsford Property Developments (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: J Palmer (Solicitor) (Applicant) K Gerathy (Solicitor) (Respondent) Solicitors: Pikes Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/18565
Publication restriction:	No