Raissis v Randwick City Council - [2019] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation: Raissis v Randwick City Council [2019] NSWLEC 1040
Hearing dates: 23 January 2019
Date of orders: 08 February 2019
Decision date: 08 February 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The Applicant’s written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 in relation to the contravention of the development standard for building height in clause 4.3 of Randwick Local Environmental Plan 2012 is upheld.
(2) The appeal is upheld.
(3) Development Application No. DA22/2018 for alterations and additions to the residential flat building approved pursuant to Development Consent No. DA/555/2016 on the land at 1 Coogee Street, Randwick (Lot 100 in DP 1224614) is approved subject to the conditions in Annexure “A”.
(4) The exhibits are returned with the exception of Exhibits A, C, D, and 5.

Catchwords: DEVELOPMENT APPLICATION: Additions to an approved residential flat building – affordable rental housing – compatibility with the character of the local area – resident objections – appeal upheld.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environmental Plan 2012
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Initial Action v Woollahra Municipal Council [2018] NSWLEC 118
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Apartment Design Guide
Practice Note - Class 1 Development Appeals
Randwick City Council Development Control Plan 2013
Category: Principal judgment
Parties: Spiro Raissis (Applicant)
Randwick City Council (Respondent)
Representation: Solicitors:
M Mallos, Maddocks Lawyers (Applicant)
J McCullan, Marsdens Law Group (Respondent)

File Number(s): 2018/74464
Publication restriction: No

Judgment

COMMISSIONER: The Applicant, Mr Spiro Raissis seeks consent for alterations and additions to an approved residential flat building at 1 Coogee Street, Randwick. The development application seeks consent to:

provide an additional storey comprising one unit; and

delete the stairs approved under the current consent and provide new windows in lieu of the stairs on level 2.

This matter is an appeal under s 8.11 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of DA/22/2018 by Randwick City Council.
I note that the development application was notified in accordance with the provisions of the Randwick City Council Development Control Plan 2013 (DCP 2013). In response to the public notification Council received nine submissions objecting to the application. I have read these submissions which have been tendered in the Council’s bundle of documents (Ex 6).
The amended plans before the Court were renotified by the Council in September 2018.
Some of the objectors also gave further oral evidence at the site view. The residents’ concerns are broadly that the additional development sought through this application…

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.

Keep reading for free

Create a free CaseChat account to read Raissis v Randwick City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWLEC 1040
Decision Date: 08 February 2019

CaseChat Overview and Summary

The applicant, Raissis, brought an application to the Land and Environment Court of New South Wales to challenge a decision by the Randwick City Council. The dispute centred around the Council's approval of a development application for alterations and additions to a residential flat building at 1 Coogee Street, Randwick. Raissis argued that the proposed development contravened the development standards for building height set out in the Randwick Local Environmental Plan 2012. The applicant sought an order under clause 4.6 of the Plan, which allows for the review of decisions regarding the contravention of development standards.

The court was required to determine whether the Council's decision to approve the development application was in accordance with the Randwick Local Environmental Plan 2012. Specifically, the court had to consider whether the proposed building height complied with the development standards outlined in clause 4.3 of the Plan. Additionally, the court needed to assess whether the applicant's request for review under clause 4.6 of the Plan was valid and if the appeal against the Council's decision was well-founded.

The Land and Environment Court found that the proposed development did indeed contravene the building height development standard set out in clause 4.3 of the Plan. The court held that the applicant's request for review under clause 4.6 of the Plan was valid and that the appeal was well-founded. Consequently, the Court upheld the applicant's request for review and the appeal against the Council's decision. The Court approved the development application, subject to certain conditions outlined in Annexure “A”. The Court also ordered that the exhibits be returned, except for Exhibits A, C, D, and 5.

Orders

Orders of the court

The Court orders that:

(1) The Applicant’s written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 in relation to the contravention of the development standard for building height in clause 4.3 of Randwick Local Environmental Plan 2012 is upheld.

(2) The appeal is upheld.

(3) Development Application No. DA22/2018 for alterations and additions to the residential flat building approved pursuant to Development Consent No. DA/555/2016 on the land at 1 Coogee Street, Randwick (Lot 100 in DP 1224614) is approved subject to the conditions in Annexure “A”.

(4) The exhibits are returned with the exception of Exhibits A, C, D, and 5.

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:	Raissis v Randwick City Council [2019] NSWLEC 1040
Hearing dates:	23 January 2019
Date of orders:	08 February 2019
Decision date:	08 February 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The Applicant’s written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 in relation to the contravention of the development standard for building height in clause 4.3 of Randwick Local Environmental Plan 2012 is upheld. (2) The appeal is upheld. (3) Development Application No. DA22/2018 for alterations and additions to the residential flat building approved pursuant to Development Consent No. DA/555/2016 on the land at 1 Coogee Street, Randwick (Lot 100 in DP 1224614) is approved subject to the conditions in Annexure “A”. (4) The exhibits are returned with the exception of Exhibits A, C, D, and 5.
Catchwords:	DEVELOPMENT APPLICATION: Additions to an approved residential flat building – affordable rental housing – compatibility with the character of the local area – resident objections – appeal upheld.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Apartment Design Guide Practice Note - Class 1 Development Appeals Randwick City Council Development Control Plan 2013
Category:	Principal judgment
Parties:	Spiro Raissis (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: M Mallos, Maddocks Lawyers (Applicant) J McCullan, Marsdens Law Group (Respondent)
File Number(s):	2018/74464
Publication restriction:	No