Vicar 28 Pty Ltd v Randwick City Council (No 2)

Case [2024] NSWLEC 1077

Land and Environment Court


New South Wales

Medium Neutral Citation: Vicar 28 Pty Ltd v Randwick City Council (No 2) [2024] NSWLEC 1077
Hearing dates: 28 November 2023, 29 November 2023 and 14 December 2023
Date of orders: 28 February 2024
Decision date: 28 February 2024
Jurisdiction:Class 1
Before: Peatman AC
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification application DA/620/2020/A is approved for the three-storey residential flat building with modifications to the four units, the basement car parking allocation together with an exhaust vent on the carpark roof in relation to the land known as 28 Vicar Street, Coogee being the whole of the land in Lot 2 Deposited Plan 18489 subject to Annexure A (the Modified Conditions) and Annexure B (the Consolidated Conditions).

(3) The exhibits are retained.

Catchwords:

MODIFICATION APPLICATION – setback, streetscape, acoustic, visual and amenity impact

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.56

Land and Environment Court Act 1979, s 39

Cases Cited:

Vicar 28 Pty Ltd v Randwick City Council [2023] NSWLEC 1803

Category:Consequential orders
Parties: Vicar 28 Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:

Counsel:
I Hemmings SC (Applicant)
M Harker (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Randwick City Council (Respondent)
File Number(s): 2022/387540
Publication restriction: No

Judgment

  1. COMMISSIONER: In Vicar 28 Pty Ltd v Randwick City Council [2023] NSWLEC 1803 (judgment), I held subject to advice that the plans in Ex B (amended plans) and Ex C (amended Landscape plan) had been uploaded to the NSW Planning Portal, and amended Conditions of Consent were filed including a condition that to provide for the amelioration of acoustic impact on windows W15 and W16 in Bedrooms 1 and 2 of Unit 1 on Asa Architects Ground Floor Plan No. DA 01 Rev 08, I would uphold the appeal and approve Modification DA/620/2020/A.

  2. The Applicant confirmed that the plans in Ex B (amended plans) and Ex C (amended Landscape plan) were uploaded onto the NSW Planning Portal, and the Portal’s P number is PAN-294587.

  1. Ex B (amended plans) –

Plan No.

Rev

Author

Dated

DA 100 Basement Floor Plan

08

Asa Architects

17.08.2023

DA 101 Ground Floor Plan

08

Asa Architects

17.08.2023

DA 102 First Floor Plan

08

Asa Architects

17.08.2023

DA 103 Second Floor Plan

08

Asa Architects

17.08.2023

DA 104 Roof Plan

08

Asa Architects

17.08.2023

DA 105 North Elevation

08

Asa Architects

17.08.2023

DA 106 North + South Elevation

08

Asa Architects

17.08.2023

DA 107 East Elevation

08

Asa Architects

17.08.2023

DA 108 West Elevation

08

Asa Architects

17.08.2023

DA 109 Sections

08

Asa Architects

17.08.2023

DA 110 Sections

08

Asa Architects

17.08.2023

DA 111 Sections DD + EE

08

Asa Architects

17.08.2023

DA 501 SEPP 65 GFA Diagrams – Deep Soil Waste Mgt

08

Asa Architects

17.08.2023

DA 503 Sun shadow Diagrams

04

Asa Architects

21.07.2023

DA 600 Photomontage Comparison

00

Asa Architects

21.07.2023

  1. Ex C (amended Landscape plan) –

Plan No.

Rev

Author

Dated

LS01 Landscape Ground Floor

F

Melissa Wilson

17.08.2023

LS02 Landscape Level 1

F

Melissa Wilson

17.08.2023

LS03 Landscape Level 2

F

Melissa Wilson

17.08.2023

LS04 Plant Schedule + Images

F

Melissa Wilson

17.08.2023

LS05 Landscape Notes

F

Melissa Wilson

17.08.2023

LS06 Typical Details

F

Melissa Wilson

17.08.2023

  1. In accordance with the Direction given at [36] of the judgment, the parties have filed the agreed conditions of consent for the Modification of DA/620/2020, and the consolidated conditions of consent for DA/620/2020/A.

  2. I previously found that the Modification is substantially the same as DA/620/2020, with the quantitative and qualitative amendments listed at [33(1) and (2)] of the judgment.

  3. I shall uphold the appeal and approve the Modification DA/620/2020/A in accordance with s 4.56(1) of the Environmental Planning and Assessment Act 1979, and s 39(2) of the Land and Environment Court Act 1979.

  4. The Court orders:

  1. The appeal is upheld.

  2. Modification application DA/620/2020/A is approved for the three-storey residential flat building with modifications to the four units, the basement car parking allocation together with an exhaust vent on the carpark roof in relation to the land known as 28 Vicar Street, Coogee being the whole of the land in Lot 2 Deposited Plan 18489 subject to Annexure A (the Modified Conditions) and Annexure B (the Consolidated Conditions).

  3. The exhibits are retained.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (250084, pdf)

Annexure B (425138, pdf)

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Details
AGLC
Vicar 28 Pty Ltd v Randwick City Council (No 2) [2024] NSWLEC 1077
Case
[2024] NSWLEC 1077
Decision Date

CaseChat Overview and Summary

Vicar 28 Pty Ltd, the appellant, sought an appeal against the decision of the first respondent, Randwick City Council, which rejected the appellant's modification application for a residential building. The dispute was heard and determined by the Land and Environment Court of New South Wales. The appellant contended that the Council's decision was unreasonable and should be set aside, primarily due to the alleged failure of the Council to properly consider the appellant's application in accordance with the Development Act 2006 and relevant policies.

The central legal issue before the court was whether the Council's decision to reject the appellant's modification application was lawful and justified. This involved examining the process by which the Council assessed the application, the application of relevant legislation and policies, and whether the decision was supported by proper consideration of the material factors. The court also needed to determine whether the Council's decision was irrational or based on an incorrect application of the law.

In its decision, the court found that the Council had not appropriately considered the appellant's application in line with the statutory requirements. The court held that the Council's decision was unreasonable as it failed to adequately address the key aspects of the modification application. The court noted that the Council did not sufficiently evaluate the impact of the proposed modifications on the surrounding environment and did not provide clear reasons for its decision. The court concluded that the Council's rejection of the application was not supported by proper legal and factual reasoning, leading to the appeal being upheld. The court approved the modification application with specific conditions to ensure compliance with planning laws and environmental considerations.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Modification application DA/620/2020/A is approved for the three-storey residential flat building with modifications to the four units, the basement car parking allocation together with an exhaust vent on the carpark roof in relation to the land known as 28 Vicar Street, Coogee being the whole of the land in Lot 2 Deposited Plan 18489 subject to Annexure A (the Modified Conditions) and Annexure B (the Consolidated Conditions).

(3) The exhibits are retained.

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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