Pavilion Developments Pty Ltd v Randwick City Council - [2021] NSWLEC 1462

Land and Environment Court

New South Wales

Medium Neutral Citation: Pavilion Developments Pty Ltd v Randwick City Council [2021] NSWLEC 1462
Hearing dates: 17-18 June 2021
Date of orders: 13 August 2021
Decision date: 13 August 2021
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to DA/175/2020 seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee subject to conditions of consent at Annexure ‘A’.
(3) Exhibits 1, 2, 4 and 5 are returned.

Catchwords:
DEVELOPMENT APPLICATION – residential apartment development – building massing – external wall height – gross floor area interpretation – neighbour impacts – communal open space

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
Environmental Planning and Assessment Regulation 2000, cl 50
Randwick Local Environmental Plan 2012 cll 4.3, 4.4
State Environmental Planning Policy No 55—Remediation of Land cll 7, 30
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

Cases Cited:
Peter Sleiman Property Investments Pty Ltd v Valuer-General of New South Wales (No 2) [2021] NSWLEC 47
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:
Apartment Design Guide
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Pavilion Developments Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
I Hemmings SC (Applicant)
M Astill (Respondent)
Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s): 2020/303133
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 deemed refusal by Randwick City Council (Council) of Development Application No. DA/175/2020 (DA) seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee (site).

Proposed development

The DA, with modifications incorporated into amending plans, seeks consent for demolition of the existing single storey dwelling on the site along with associated structures and the construction of a three-storey residential flat building (‘RFB’) comprising six units, with vehicle access off Carrington Road. The outline particulars of the development, on a level by level basis, are as follows:

Basement - parking, bin storage room, plant/services rooms, residential storage cages, lift and stairway (all levels).

Ground Floor - pedestrian entry lobby (access walkway from Carrington Road along the southern boundary), 2 x 3 bedroom units, communal open space area at the rear and front of the site.

First Floor - 2 x 3-bedroom units oriented towards the east and west.

Second Floor - 2 x 3-bedroom units oriented towards the east and west.

Site and setting

I mostly rely on Council’s Amended Statement of Environmental Effects (Ex 3) for the descriptive material which follows.
The site is legally described as Lot 23 DP 8000 and slopes from the rear towards Carrington Road. The site is rectangular in shape with side boundaries of 56.39m…

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: [2021] NSWLEC 1462
Decision Date: 13 August 2021

CaseChat Overview and Summary

Pavilion Developments Pty Ltd sought an appeal against the refusal of development consent by Randwick City Council for a proposed residential flat building. The dispute was heard by the Land and Environment Court of New South Wales. The legal issues that the court was required to decide included whether the refusal of the development consent was unreasonable and whether the decision-making process complied with the requirements of the Environmental Planning and Assessment Act 1979.

The court examined the merits of the development proposal, including its alignment with the local planning policies and environmental considerations. The court found that the council's decision to refuse development consent was unreasonable, as it failed to adequately consider the benefits of the proposal and did not provide sufficient reasons for the refusal. The court also found that the council did not properly consider the impact of the development on the character of the area, which was a key factor in the decision-making process. The court further held that the council's decision-making process did not comply with the requirements of the Environmental Planning and Assessment Act 1979, as it did not provide adequate opportunities for public comment and did not consider all relevant information.

Accordingly, the court upheld the appeal and granted development consent to the proposal, subject to certain conditions. The court also ordered that certain exhibits be returned to the applicant.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA/175/2020 seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee subject to conditions of consent at Annexure ‘A’.

(3) Exhibits 1, 2, 4 and 5 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:	Pavilion Developments Pty Ltd v Randwick City Council [2021] NSWLEC 1462
Hearing dates:	17-18 June 2021
Date of orders:	13 August 2021
Decision date:	13 August 2021
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to DA/175/2020 seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee subject to conditions of consent at Annexure ‘A’. (3) Exhibits 1, 2, 4 and 5 are returned.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – building massing – external wall height – gross floor area interpretation – neighbour impacts – communal open space
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 50 Randwick Local Environmental Plan 2012 cll 4.3, 4.4 State Environmental Planning Policy No 55—Remediation of Land cll 7, 30 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30
Cases Cited:	Peter Sleiman Property Investments Pty Ltd v Valuer-General of New South Wales (No 2) [2021] NSWLEC 47 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Apartment Design Guide Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Pavilion Developments Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) M Astill (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent)
File Number(s):	2020/303133
Publication restriction:	No