McDonald v Randwick City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McDonald v Randwick City Council [2012] NSWLEC 1175

Hearing dates:

14 June 2012

Decision date:

26 June 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is dismissed.

2. Development Application No. 542/11 to enclose an existing balcony at apartment 11, 98 Mount Street, Coogee is refused consent.

3. The exhibits, other than exhibits 3, A and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION: Enclosure of existing balcony, FSR, precedent.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Wehbe v Pittwater Council [2007] NSWLEC 827
Winten Property Group v North Sydney Council (2001) 130 LGERA 79
Zhang v Canterbury City Council (2001) 115 LGERA 373

Category:

Principal judgment

Parties:

Mr Luke McDonald (Applicant)
Randwick City Council (Respondent)

Representation:

Mr Paul Vergotis (Agent) (Applicant)
Mr Ken Webber (Solicitor) (Respondent)
Solicitors
Wilshire Webb Staunton Beattie Solicitors (Respondent)

File Number(s):

10272 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 542/11 (the application) by Randwick City Council (the council) to enclose the existing balcony, at apartment 11, 98 Mount Street, Coogee (the site).

1. The appeal was subject to mandatory conciliation and arbitration on 14 June 2012 in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the residential flat building and adjacent area and heard from two resident objectors. Soon after the commencement of the conciliation conference, the parties advised that there was no prospect of an agreement being reached and so the conciliation conference was terminated and a hearing held forthwith pursuant to s 34AA(2)(b).

1. The contentions in the matter can be summarised as:

• The proposal exceeds the floor space ratio (FSR) control for the site;
• The proposal interferes with the original design of the residential flat building; and
• Approving the enclosure of the balcony will set a precedent for enclosing balconies within this building and will result in an inconsistent external appearance where some balconies are enclosed and some are not.

The site and its context

1. 98 Mount Street, Coogee is located on the western side of Mount Street, between Carr Street and Coogee Bay Road. The site backs onto Carr Lane. The residential flat building is three storeys high and constructed of face brickwork with feature rendered and painted projecting bays at either end of the development. The building runs the length of the site and the elevations are articulated by projecting bays with parapets.

1. Apartment 11 is located on the third floor, with a balcony within a projecting bay on the southern side of the residential flat building. It has…