Scarf v Randwick City Council - [2010] NSWLEC 1205

Land and Environment Court

of New South Wales

CITATION: Scarf and Ors v Randwick City Council [2010] NSWLEC 1205

PARTIES:
1st APPLICANT
Dr Michael Scarf
2nd APPLICANT
Dr Charles Scarf
3rd APPLICANT
Mrs Patricia Woods
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10970 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Residential flat building

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick Development Control Plan
State Environmental Planning Policy No 1

CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 21 - 22 June 2010 and 29 June 2010

EX TEMPORE JUDGMENT DATE: 29 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Robson (SC)
SOLICITOR
Mallesons Stephen Jaques
RESPONDENT
Mr P Rigg (solicitor)
SOLICITOR
Norton Rose

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

29 June 2010
10970 of 2009 Dr Michael Scarf, Dr Charles Scarf, Mrs Patricia Woods v Randwick City Council

This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT

1 The applicant in these proceedings is seeking to erect a residential flat building on the property known as No. 92 Alison Road, Randwick. The subject site is approximately 1,522 square metres with a frontage to Alison Road of 22.8 metres. It is irregular in shape in that the rear portion forms a triangle.

2 Currently on the site, there is a dwelling house to be demolished as part of the development application, and a residential flat building is to be erected with 16 apartments, 21 parking spaces for the units, and four visitor car parking spaces. The proposal is some four storeys in height. The surrounding area is depicted clearly in the aerial photographs that were tendered to the Court as well as the model that became Exhibit E in the proceedings.

3 It is noted that the subject site is adjoined at No. 90 by a single storey residential dwelling, and that at No. 94 there is a residential flat building of some eight to nine storeys in height over two levels of parking at grade and above. The site is also surrounded by a number of other residential flat buildings built over various eras and with different architectural treatments and styles.

4 The subject site is some five kilometres in a direct line from the centre of the Sydney CBD. The area also has the advantage of extensive open space areas with Moore Park Racecourse directly opposite and other extensive public open space areas. Alison Road forms a main arterial road into the CBD.

5 By way of background, these proceedings commenced as a s 34 conciliation conference. There was no agreement reached between the parties and they consented to the Court determining the matter, with a further hearing. The Court had the opportunity of hearing from resident objectors on the two occasions that it visited the site and carried out site inspections. The Court has had regard to the…

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: [2010] NSWLEC 1205
Decision Date: 29 June 2010

CaseChat Overview and Summary

The applicants, Dr Michael Scarf, Dr Charles Scarf, and Mrs Patricia Woods, sought approval from Randwick City Council for a development application to construct a residential flat building on a property at 92 Alison Road, Randwick. The council refused the application on the grounds that the proposal exceeded height restrictions, did not comply with the State Environmental Planning Policy No 1, had an inappropriate bulk and scale, and would result in unreasonable loss of views from neighboring properties. The applicants appealed the council's decision, and the matter was heard by the Land and Environment Court of New South Wales.

The primary issue before the Court was whether the development application should be approved or refused. The Court had to consider the objectives of the Randwick Local Environmental Plan and the State Environmental Planning Policy No 1, the impact of the proposed development on neighboring properties, and the overall merits of the application.

The Court found that the proposed development, while exceeding height restrictions, satisfied the underlying objectives of the relevant planning policies. The Court considered the view loss from two units in an adjacent building, but found that the loss was not significant and that the proposed development was reasonably designed. The Court also found that the proposed development would not unreasonably impact the amenity of neighboring properties. The Court concluded that the proposal was worthy of approval and allowed the appeal, subject to certain conditions.

In summary, the Land and Environment Court of New South Wales allowed the appeal and approved the development application subject to conditions, finding that the proposal satisfied the relevant planning policies and would not unreasonably impact neighboring properties.

Orders