Mitrothanasis v Randwick City Council - [2022] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation: Mitrothanasis v Randwick City Council [2022] NSWLEC 1039
Hearing dates: Conciliation conference on 15 November, 8 and 21 December 2021
Date of orders: 27 January 2022
Decision date: 27 January 2022
Jurisdiction: Class 1
Before: Bradbury AC
Decision:
The Court orders that:
(1) The Applicant is to pay the Respondent’s costs thrown away in the amount of $4,500 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.
(2) The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the height of buildings development standard contained in clause 4.3 of that plan is upheld.
(3) The appeal is upheld.
(4) Development consent is granted to Development Application No. DA/637/2020, for the demolition of existing structures and construction of a 4 unit, 3 storey residential flat building containing one studio, one 2 bedroom unit and two 3 bedroom units, basement parking for 4 cars and associated landscaping works (infill affordable housing) on the land described as Lot A DP 346056 known as 23 Bona Vista Avenue, Maroubra, subject to the conditions in Annexure A.

Catchwords:
APPEAL – development application – residential flat building – proposed development exceeds height development standard – clause 4.6 request – conciliation conference – agreement reached – orders made

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15
Environmental Planning and Assessment Regulation 2000, cll 50 and 55
Land and Environment Court Act 1979, s 34
Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.7, 6.10
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 16A, 14
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Coastal Management) 2018, cl 14
State Environmental Planning Policy (Housing) 2021, cl 2
State Environmental Planning Policy No 55— Remediation of Land, cl 7
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

Category: Principal judgment
Parties: Theodore Mitrothanasis (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s): 21/193296
Publication restriction: Nil

Judgment

COMMISSIONER: This appeal concerns a development application (DA) for a residential flat building in Maroubra.
The land to which the DA relates is described as Lot A DP 346056 and is known as 23 Bona Vista Ave, Maroubra (Site).
The DA seeks development consent to carry out development involving the demolition of the existing improvements of the Site and the construction of a four storey residential flat building over basement car parking (Proposed Development).
The DA was lodged with the Randwick City Council (Council) on 25 November 2020. When the DA had not been determined by the Council within the period after which a development application is taken to have been refused, on 9 July 2021 the Applicant appealed to the Court pursuant to s 8.7(1) of the Environmental Planning and…

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: [2022] NSWLEC 1039
Decision Date: 27 January 2022

CaseChat Overview and Summary

Mitrothanasis applied to Randwick City Council for development consent to demolish existing structures on a residential property and to construct a three-storey residential building. The application included a request to vary the height of buildings standard in the Randwick Local Environmental Plan 2012. The Council refused to grant development consent and dismissed the request to vary the height of buildings standard. Mitrothanasis appealed to the Land and Environment Court, which had to determine the appeal and the request to vary the height of buildings standard. The court had to decide whether the refusal to grant development consent was unreasonable and whether the request to vary the height of buildings standard should be upheld.

The court examined the merits of the development application and the merits of the request to vary the height of buildings standard. The court held that the refusal to grant development consent was unreasonable because the proposed development was in accordance with the objectives of the Randwick Local Environmental Plan 2012 and did not have any significant adverse environmental impacts. The court held that the request to vary the height of buildings standard should be upheld because it would allow for the construction of affordable housing in an area where there was a shortage of such housing. The court also held that the refusal to grant development consent and the dismissal of the request to vary the height of buildings standard were not in accordance with the law.

The court allowed the appeal and granted development consent for the proposed development, subject to the conditions in Annexure A. The court also upheld the request to vary the height of buildings standard. The court ordered that Mitrothanasis pay the Council’s costs thrown away in the amount of $4,500. The court found that the refusal to grant development consent and the dismissal of the request to vary the height of buildings standard were not in accordance with the law and were unreasonable. The court considered that the proposed development was in accordance with the objectives of the Randwick Local Environmental Plan 2012 and did not have any significant adverse environmental impacts. The court also considered that the request to vary the height of buildings standard would allow for the construction of affordable housing in an area where there was a shortage of such housing.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away in the amount of $4,500 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the height of buildings development standard contained in clause 4.3 of that plan is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application No. DA/637/2020, for the demolition of existing structures and construction of a 4 unit, 3 storey residential flat building containing one studio, one 2 bedroom unit and two 3 bedroom units, basement parking for 4 cars and associated landscaping works (infill affordable housing) on the land described as Lot A DP 346056 known as 23 Bona Vista Avenue, Maroubra, subject to the conditions in Annexure 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:	Mitrothanasis v Randwick City Council [2022] NSWLEC 1039
Hearing dates:	Conciliation conference on 15 November, 8 and 21 December 2021
Date of orders:	27 January 2022
Decision date:	27 January 2022
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) The Applicant is to pay the Respondent’s costs thrown away in the amount of $4,500 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the height of buildings development standard contained in clause 4.3 of that plan is upheld. (3) The appeal is upheld. (4) Development consent is granted to Development Application No. DA/637/2020, for the demolition of existing structures and construction of a 4 unit, 3 storey residential flat building containing one studio, one 2 bedroom unit and two 3 bedroom units, basement parking for 4 cars and associated landscaping works (infill affordable housing) on the land described as Lot A DP 346056 known as 23 Bona Vista Avenue, Maroubra, subject to the conditions in Annexure A.
Catchwords:	APPEAL – development application – residential flat building – proposed development exceeds height development standard – clause 4.6 request – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50 and 55 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 16A, 14 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cl 14 State Environmental Planning Policy (Housing) 2021, cl 2 State Environmental Planning Policy No 55— Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30
Category:	Principal judgment
Parties:	Theodore Mitrothanasis (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent)
File Number(s):	21/193296
Publication restriction:	Nil