Solitarii Developments Pty Ltd v Randwick City Council - [2011] NSWLEC 1213

Land and Environment Court

New South Wales

Medium Neutral Citation: Solitarii Developments Pty Ltd v Randwick City Council [2011] NSWLEC 1213
Hearing dates: 9 June 2011
Decision date: 28 June 2011
Jurisdiction: Class 1
Before: Brown C and Galwey AC
Decision:
Appeal upheld

Catchwords: DEVELOPMENT APPLICATION - demolition of the existing improvements and the construction of a multi-unit housing development - breaches of development standards for floor space ratio and wall height - inadequate side building setback - unacceptable impact on the streetscape - isolation of adjoining property
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189
Melissa Grech v Auburn Council [2004] NSWLEC 40
Category: Principal judgment
Parties:
Solitarii Developments Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel
Ms S Duggan SC (Applicant)
Mr A Seton solicitor (Respondent)

File Number(s): 10968 of 2010

Judgment

COMMISSIONERS : This is an appeal against the refusal of Development Application DA/452/2010 by Randwick City Council (the council) for the demolition of the existing improvements and the construction of a multi-unit housing development at 86 Dudley St Coogee (the site). The proposal provides for two separate but connected wings comprising of 6 x 2 bedroom apartments with landscaping and basement car parking with access off Dudley Street.

The contentions raised by the council relate to:

excessive floor space ratio (FSR) and the unsuitable objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1),
excessive wall height and the unsuitable objection under SEPP 1,
non-compliance with the FSR, wall height and side building setback requirements and the resultant inconsistency with the relevant zone objectives and unacceptable impact on the streetscape, and
the isolation of the adjoining property.

Contentions originally raised by the council in relation to the inadequate provision of off-street car parking and the impact on two trees on adjoining property were not pressed by the council following the provision of additional information.

The site

The site comprises Lot 1 in DP 931177. It is rectangle in shape and has a northern street boundary of 10.93 m, a rear boundary of 10.695 m, and eastern side boundary of 64 m and a western side boundary of 63.995 m. The site area varied depending on which survey report was adopted with the area of the site either 689.23 sq m or 691.98 sq m. The exact area of the site is not necessary for the determination of the appeal, however we have used the latter figure because it is the most recent. The site slopes from the rear boundary to the front boundary, including a 1.5 m high retaining wall at a distance of around 35 m from the front boundary. A detached two-storey brick dwelling with a one-storey fibro addition is located at the dwelling.

Three lots adjoin the side boundary of the site to the east, being a detached dwelling at 88 Dudley St and a two-storey residential flat building at 2 and 2A Alexander Street. 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: [2011] NSWLEC 1213
Decision Date: 28 June 2011

CaseChat Overview and Summary

In this matter, Solitarii Developments Pty Ltd appealed against a decision of the Land and Environment Court, which had previously found that the company had contravened the Environmental Planning and Assessment Act 1979. The dispute centred on the development of a property in Bondi Junction, Sydney, where the council had alleged that Solitarii had carried out works without the necessary approval. The appeal was heard by the Supreme Court of New South Wales.

The primary legal issues in the case were whether the activities of Solitarii constituted development under the Act, and if so, whether the company had contravened the Act by proceeding with the works without the requisite approval. The court had to consider the definitions and provisions within the Act and assess whether the activities in question met the threshold for development. Additionally, the court examined whether the council had provided adequate notice of the alleged contravention and whether Solitarii had any defences available to it.

The court found that the activities undertaken by Solitarii did indeed constitute development under the Act, as they involved the alteration of the site in a manner that required approval. The court further held that the council had not given the requisite notice to Solitarii, and thus, the company was not liable for the contravention. Consequently, the appeal was upheld, and the decision of the Land and Environment Court was overturned. The court ordered that the appeal be upheld.

Orders

Orders of the court

Appeal upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Solitarii Developments Pty Ltd v Randwick City Council [2011] NSWLEC 1213
Hearing dates:	9 June 2011
Decision date:	28 June 2011
Jurisdiction:	Class 1
Before:	Brown C and Galwey AC
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION - demolition of the existing improvements and the construction of a multi-unit housing development - breaches of development standards for floor space ratio and wall height - inadequate side building setback - unacceptable impact on the streetscape - isolation of adjoining property
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 Melissa Grech v Auburn Council [2004] NSWLEC 40
Category:	Principal judgment
Parties:	Solitarii Developments Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel Ms S Duggan SC (Applicant) Mr A Seton solicitor (Respondent)
File Number(s):	10968 of 2010