MKD Architects Pty Ltd v Randwick City Council - [2022] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation: MKD Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1112
Hearing dates: 1-2 February 2022
Date of orders: 08 March 2022
Decision date: 08 March 2022
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2013 seeking to vary the development standard for height of buildings contained in clause 4.3 thereof, as prepared by BMA Urban, is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to DA/523/2020 seeking development consent for demolition of existing structures and construction of a four storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee, subject to conditions of consent at Annexure ‘A’.
(4) Exhibits are returned with the exception of Exhibits 2, A, C and E.

Catchwords:
DEVELOPMENT APPLICATION – residential apartment development – building envelope – building height contravention – external wall height – side boundary setback – visual impact – foreshore scenic protection area – excavation implications – mobility parking space impact and response

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000, cll 50, 98E
Randwick Local Environmental Plan 2012 cll 4.1, 4.3, 4.4, 4.6, 6.7
State Environmental Planning Policy No 55—Remediation of Land cll 7, 30
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 30, 6A

Cases Cited:
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA [2018] NSWLEC 118.
Stockland development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Tomasic v Port Stephens Council [2021] NSWLEC 56
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
Apartment Design Guide
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: MKD Architects Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
I Hemmings SC (Applicant)
M Astill (Respondent)
Solicitors:
Hunt and Hunt Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s): 2021/138610
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Randwick Local Planning Panel of Development Application No. DA/523/2020 (DA) seeking development consent for a residential flat building and associated works at 5 Baden Street, Coogee (site).

Proposed development

The DA, with modifications incorporated into amending plans, seeks consent for demolition of existing structures on the site, and the construction of a four-storey residential flat building comprising six apartments, with basement parking, landscaping, and vehicle access off Baden Street. The ground floor and first floor would each have two x two-bedroom units. The second and third floors would each accommodate a single three-bedroom unit. There would be lift access and lobby areas to each level.

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 1112
Decision Date: 08 March 2022

CaseChat Overview and Summary

MKD Architects Pty Ltd sought a review of a decision made by Randwick City Council. The Council had refused a development application (DA/523/2020) for the demolition of existing structures and construction of a four-storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee. The applicant appealed the decision to the Land and Environment Court of New South Wales. The legal issues before the court were whether the applicant's request to vary the development standard for height of buildings was valid, and if the refusal of the development application was justified.

The court found that the request to vary the development standard for height of buildings was valid and properly submitted to the Council. The court considered that the applicant had demonstrated that the proposed development complied with the objectives of the relevant local environmental plan and would not have an unreasonable impact on the character of the area. The court further found that the Council's refusal of the development application was not justified as the proposed development would not have an unreasonable impact on the character of the area or the amenity of adjoining land. The court also found that the proposed development would provide an increase in the number of residential units in the area, which was in line with the objectives of the relevant local environmental plan.

In light of the above, the court granted the appeal and development consent was granted to DA/523/2020. The court ordered that the written request to vary the development standard for height of buildings was upheld, and that development consent be granted subject to conditions of consent at Annexure ‘A’. The exhibits were returned with the exception of Exhibits 2, A, C and E.

Orders

Orders of the court

The Court orders that:

(1) The written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2013 seeking to vary the development standard for height of buildings contained in clause 4.3 thereof, as prepared by BMA Urban, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to DA/523/2020 seeking development consent for demolition of existing structures and construction of a four storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee, subject to conditions of consent at Annexure ‘A’.

(4) Exhibits are returned with the exception of Exhibits 2, A, C and E.

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

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Medium Neutral Citation:	MKD Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1112
Hearing dates:	1-2 February 2022
Date of orders:	08 March 2022
Decision date:	08 March 2022
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2013 seeking to vary the development standard for height of buildings contained in clause 4.3 thereof, as prepared by BMA Urban, is upheld. (2) The appeal is upheld. (3) Development consent is granted to DA/523/2020 seeking development consent for demolition of existing structures and construction of a four storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee, subject to conditions of consent at Annexure ‘A’. (4) Exhibits are returned with the exception of Exhibits 2, A, C and E.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – building envelope – building height contravention – external wall height – side boundary setback – visual impact – foreshore scenic protection area – excavation implications – mobility parking space impact and response
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cll 50, 98E Randwick Local Environmental Plan 2012 cll 4.1, 4.3, 4.4, 4.6, 6.7 State Environmental Planning Policy No 55—Remediation of Land cll 7, 30 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 30, 6A
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA [2018] NSWLEC 118. Stockland development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Tomasic v Port Stephens Council [2021] NSWLEC 56 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	Apartment Design Guide Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021) Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	MKD Architects Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) M Astill (Respondent) Solicitors: Hunt and Hunt Lawyers (Applicant) Randwick City Council (Respondent)
File Number(s):	2021/138610
Publication restriction:	No