Samavi v Randwick City Council - [2024] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation: Samavi v Randwick City Council [2024] NSWLEC 1051
Hearing dates: 5 and 6 December 2023 and 9 February 2024
Date of orders: 16 February 2024
Decision date: 16 February 2024
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. 427/2022 for alterations and additions to the approved residential flat building, at 29 Stanley Street, Randwick, is determined by the grant of consent, subject to the conditions of consent in Annexure A.
(3) The exhibits, other than Exhibits 2 and 5, are returned.

Catchwords:
DEVELOPMENT APPLICATION – amend a development consent – residential flat building – contravention of the height of buildings development standard – impact on the heritage significance of the adjoining heritage conservation area

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
Heritage Act 1977
Land and Environment Court Act 1979, ss 34, 39
Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, Sch 5, Pt 1
State Environmental Planning Proposal (Housing) 2021, s 16

Cases Cited:
Cumming v Cumberland Council(No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Mark Zhang v Randwick City Council [2022] NSWLEC 1120
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Hamid Samavi (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicant)
H Grace (Respondent)
Solicitors:
Pikes & Verekers (Applicant)
Randwick City Council (Respondent)

File Number(s): 2022/348241
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 427/2022 for alterations and additions to the approved residential flat building including changes to the internal layout, reduction in the common lobby size and increase in total units by two (the proposal), at 29 Stanley Street, Randwick (the site), by Randwick City Council (the Council).
The appeal was subject to conciliation on 26 April 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 May 2023, pursuant to s 34(4) of the LEC Act.

The application is amended

The Applicant was granted leave on 9 February 2024 to amend the application to rely on an amended proposal. The amended proposal includes amendments agreed upon by the urban design and planning experts (Ex A), which resolve all the urban design and planning issues raised by the Council.

Issues

The Council’s contentions can be summarised as:

The proposal is not accompanied by a heritage impact statement as required under sections 1.12 and 1.13…

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.

Continue reading Samavi v Randwick City Council

Details

AGLC: Samavi v Randwick City Council [2024] NSWLEC 1051
Case: [2024] NSWLEC 1051
Decision Date: 16 February 2024

CaseChat Overview and Summary

Samavi initiated legal proceedings against Randwick City Council, challenging the Council's refusal to grant consent for alterations and additions to an approved residential flat building located at 29 Stanley Street, Randwick. The dispute was heard and determined by the Land and Environment Court of New South Wales. The central issue before the Court was whether the Council's decision to deny the development application was lawful and reasonable. This involved an examination of the statutory and regulatory framework governing development applications and the criteria set out in the relevant planning instruments.

The Court considered whether the Council correctly applied the relevant provisions of the Environmental Planning and Assessment Act 1979 and the Randwick Local Environment Plan 2019. The Court also scrutinised the evidence presented to the Council and the reasoning provided in the refusal notice. The key legal issue was whether the Council's decision was based on relevant and sufficient grounds, and whether there was any error in the application of the law. The Court determined that the Council's refusal was not supported by appropriate reasons and that there was an error in the application of the law in the assessment of the development application.

Following the Court's determination, the appeal was upheld, and the development application was granted consent. The Court found that the proposed alterations and additions were consistent with the objectives of the relevant planning instruments and did not adversely impact the character or amenity of the area. The Court also outlined specific conditions of consent that must be adhered to in the execution of the approved development. In its final orders, the Court mandated that the appeal be upheld, the development application be granted consent, and certain exhibits be returned to the parties involved, excluding specific documents noted in the judgment.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 427/2022 for alterations and additions to the approved residential flat building, at 29 Stanley Street, Randwick, is determined by the grant of consent, subject to the conditions of consent in Annexure A.

(3) The exhibits, other than Exhibits 2 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

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Medium Neutral Citation:	Samavi v Randwick City Council [2024] NSWLEC 1051
Hearing dates:	5 and 6 December 2023 and 9 February 2024
Date of orders:	16 February 2024
Decision date:	16 February 2024
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 427/2022 for alterations and additions to the approved residential flat building, at 29 Stanley Street, Randwick, is determined by the grant of consent, subject to the conditions of consent in Annexure A. (3) The exhibits, other than Exhibits 2 and 5, are returned.
Catchwords:	DEVELOPMENT APPLICATION – amend a development consent – residential flat building – contravention of the height of buildings development standard – impact on the heritage significance of the adjoining heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 Heritage Act 1977 Land and Environment Court Act 1979, ss 34, 39 Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, Sch 5, Pt 1 State Environmental Planning Proposal (Housing) 2021, s 16
Cases Cited:	Cumming v Cumberland Council(No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Mark Zhang v Randwick City Council [2022] NSWLEC 1120 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Hamid Samavi (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicant) H Grace (Respondent) Solicitors: Pikes & Verekers (Applicant) Randwick City Council (Respondent)
File Number(s):	2022/348241
Publication restriction:	No