Thomas v Randwick City Council - [2019] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation: Thomas v Randwick City Council [2019] NSWLEC 1411
Hearing dates: Conciliation conference on 14 August 2019; 30 August 2019
Date of orders: 03 September 2019
Decision date: 03 September 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Court orders:
(1) Leave is granted for the Applicant to amend the application to rely on the documentation listed in condition 1 of the conditions of consent at Annexure A.
(2) The appeal is upheld.
(3) Development Application No. 768/2017 (as amended) for alterations and additions to the existing dwelling house including enclosure of the ground floor alfresco area, a new deck with pergola on the western side of the pool and associated site and landscaping works at Lot G in DP 84739, otherwise known as 25 Liguria Street, Maroubra, is approved, subject to the conditions of consent at Annexure A.
(4) Costs are reserved.

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environmental Plan 2012
Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Category: Principal judgment
Parties: Shannon and Vivian Thomas (Applicant)
Randwick City Council (First Respondent)
Gillian Bryce (Second Respondent)
Representation:
Counsel:
A Whealy (Solicitor) (Applicant)
S Patterson (Solicitor) (First Respondent)
M Wright SC (Second Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Stauton Beattie (First Respondent)
Dive Lawyers (Second Respondent)

File Number(s): 2018/385469
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. 768/2017 for alterations and additions to the existing dwelling house including enclosure of the ground floor alfresco area, a new deck with pergola to the western side of the pool and associated site and landscaping works (the proposal) at 25 Liguria Street, Maroubra (the site) by Randwick City Council (the Council).
The Court ordered Gillian Bryce of 23 Liguria Street to be joined as a second respondent in the proceedings, pursuant to s 8.15(2)(a) of the EPA Act, on 13 August 2019.
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 August 2019 and 30 August 2019. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court…

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: [2019] NSWLEC 1411
Decision Date: 03 September 2019

CaseChat Overview and Summary

The case of Thomas v Randwick City Council involved a dispute regarding a development application for alterations and additions to a dwelling at 25 Liguria Street, Maroubra. The applicant, Thomas, sought amendments to the application to incorporate additional documentation. The matter was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the applicant should be granted leave to amend the development application and whether the application should be approved in light of the proposed changes.

The court considered whether the amendments to the application were necessary and whether they would significantly impact the assessment of the application. The applicant argued that the additional documentation was essential for a comprehensive evaluation of the proposed works. The council contended that the application should be dismissed due to non-compliance with certain planning controls. After careful consideration, the court found that the amendments were appropriate and would not substantially alter the nature of the proposed development. The court held that the applicant should be granted leave to amend the application and that the development application should be approved, subject to certain conditions.

In its judgment, the court approved the development application, allowing for alterations and additions to the dwelling, including the enclosure of the ground floor alfresco area, a new deck with pergola on the western side of the pool, and associated site and landscaping works. The approval was subject to the conditions of consent outlined in Annexure A. The court also granted leave for the applicant to amend the application to include the specified documentation. Costs of the proceedings were reserved for further determination.

Orders

Orders of the court

The Court orders:

(1) Leave is granted for the Applicant to amend the application to rely on the documentation listed in condition 1 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. 768/2017 (as amended) for alterations and additions to the existing dwelling house including enclosure of the ground floor alfresco area, a new deck with pergola on the western side of the pool and associated site and landscaping works at Lot G in DP 84739, otherwise known as 25 Liguria Street, Maroubra, is approved, subject to the conditions of consent at Annexure A.

(4) Costs are reserved.

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:	Thomas v Randwick City Council [2019] NSWLEC 1411
Hearing dates:	Conciliation conference on 14 August 2019; 30 August 2019
Date of orders:	03 September 2019
Decision date:	03 September 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) Leave is granted for the Applicant to amend the application to rely on the documentation listed in condition 1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development Application No. 768/2017 (as amended) for alterations and additions to the existing dwelling house including enclosure of the ground floor alfresco area, a new deck with pergola on the western side of the pool and associated site and landscaping works at Lot G in DP 84739, otherwise known as 25 Liguria Street, Maroubra, is approved, subject to the conditions of consent at Annexure A. (4) Costs are reserved.
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Shannon and Vivian Thomas (Applicant) Randwick City Council (First Respondent) Gillian Bryce (Second Respondent)
Representation:	Counsel: A Whealy (Solicitor) (Applicant) S Patterson (Solicitor) (First Respondent) M Wright SC (Second Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Stauton Beattie (First Respondent) Dive Lawyers (Second Respondent)
File Number(s):	2018/385469
Publication restriction:	No