Scerri v Randwick City Council - [2024] NSWLEC 1449

Land and Environment Court

New South Wales

Medium Neutral Citation: Scerri v Randwick City Council [2024] NSWLEC 1449
Hearing dates: 23 July 2023
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development application No DA/1100/2023 for Strata subdivision of existing dual occupancy to create two (2) new lots at 1304 Bunnerong Road, Phillip Bay is determined by the grant of consent subject to the conditions of consent in Annexure A.
(3) All Exhibits are retained.

Catchwords:
DEVELOPMENT APPEAL – residential strata subdivision of dual occupancy (attached) – minimum lot size - orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
Interpretation Act 1987, s 68
Land and Environment Court Act 1979, ss 34AA, 39
Strata Schemes (Freehold Development) Act1973
Strata Schemes (Leasehold Development) Act 1973
Strata Schemes Development Act 2015
Environmental Planning and Assessment Regulation 2021, ss 37, 38
Randwick Local Environmental Plan 2012, cll 2.6, 4.1A

Cases Cited:
Barhom v Randwick City Council [2024] NSWLEC 1357
Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401
Kelly v Randwick City Council [2018] NSWLEC 1322
Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486
MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646

Category: Principal judgment
Parties: Adam Scerri (Applicant)
Randwick Council (Respondent)
Representation:
Counsel:
J Palmer (Solicitor)(Applicant)
A Seton (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/95796
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application n No. DA/1100/2023 seeks consent for Torrens title subdivision of the existing attached dual occupancy (the Proposed Development) at 1304 Bunnerong Road, Phillip Bay legally described as Lot 38 in DP 1266078 (the Site).
The Site is generally rectangular in shape, with a 14.02m frontage to Bunnerong Road (to east) and site area of 542.9m2. The Site is currently occupied by a two storey dual occupancy (attached) constructed pursuant to Development Consent No. DA/852/2018, which was approved by the Respondent on 05 July 2019. The Court was provided with a copy of the Occupation Certificate dated 27 January 2022 (Ex E) as further evidence that the existing dual occupancy (attached) was constructed pursuant to development consent No. DA/852/2018 (Ex 2, Tabs 2 and 3) and as modified DA/852/2018/A (Ex 2, Tabs 5 and 6.)
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site on 23 July 2024. I presided over the conciliation conference and as the parties were unable to reach agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, the conciliation conference was terminated with the hearing commencing forthwith in accordance with…

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: [2024] NSWLEC 1449
Decision Date: 31 July 2024

CaseChat Overview and Summary

The case of Scerri v Randwick City Council involves the applicant, Scerri, appealing against a decision by Randwick City Council to refuse a development application for a strata subdivision. The subject property is located at 1304 Bunnerong Road, Phillip Bay, where the applicant sought to convert an existing dual occupancy into two separate lots. The dispute came before the Land and Environment Court of New South Wales, which was tasked with reviewing the merits of the appeal against the Council’s decision.

The primary legal issues before the Court were whether the Council's refusal of the development application was unreasonable and whether the proposed subdivision complied with relevant planning laws and policies. The applicant argued that the refusal was unjustified, given the property's zoning and the potential benefits of the subdivision, such as increased housing supply. The Council contended that the refusal was reasonable, citing concerns about the impact on the local environment and community.

The Court found that the Council’s decision to refuse the development application was unreasonable. The Court considered that the proposed subdivision complied with the relevant planning scheme and did not contravene any planning policies or controls. The Court further found that the benefits of the subdivision, including the potential for additional housing, outweighed any minor adverse impacts on the environment and community. Consequently, the Court determined that the development application should be granted subject to specified conditions.

Accordingly, the Court ordered that the appeal be upheld, and the development application be granted subject to the conditions outlined in Annexure A. The Court also directed that all exhibits be retained for future reference. This decision provides clarity on the application of planning laws to strata subdivisions and affirms the importance of balancing development interests with community and environmental considerations.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development application No DA/1100/2023 for Strata subdivision of existing dual occupancy to create two (2) new lots at 1304 Bunnerong Road, Phillip Bay is determined by the grant of consent subject to the conditions of consent in Annexure A.

(3) All Exhibits are retained.

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:	Scerri v Randwick City Council [2024] NSWLEC 1449
Hearing dates:	23 July 2023
Date of orders:	31 July 2024
Decision date:	31 July 2024
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development application No DA/1100/2023 for Strata subdivision of existing dual occupancy to create two (2) new lots at 1304 Bunnerong Road, Phillip Bay is determined by the grant of consent subject to the conditions of consent in Annexure A. (3) All Exhibits are retained.
Catchwords:	DEVELOPMENT APPEAL – residential strata subdivision of dual occupancy (attached) – minimum lot size - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 Interpretation Act 1987, s 68 Land and Environment Court Act 1979, ss 34AA, 39 Strata Schemes (Freehold Development) Act1973 Strata Schemes (Leasehold Development) Act 1973 Strata Schemes Development Act 2015 Environmental Planning and Assessment Regulation 2021, ss 37, 38 Randwick Local Environmental Plan 2012, cll 2.6, 4.1A
Cases Cited:	Barhom v Randwick City Council [2024] NSWLEC 1357 Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401 Kelly v Randwick City Council [2018] NSWLEC 1322 Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486 MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646
Category:	Principal judgment
Parties:	Adam Scerri (Applicant) Randwick Council (Respondent)
Representation:	Counsel: J Palmer (Solicitor)(Applicant) A Seton (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2024/95796
Publication restriction:	No