Zhang v Randwick City Council - [2022] NSWLEC 1386

Land and Environment Court

New South Wales

Medium Neutral Citation: Zhang v Randwick City Council [2022] NSWLEC 1386
Hearing dates: 14, 15 and 16 March 2022
Date of orders: 20 July 2022
Decision date: 20 July 2022
Jurisdiction: Class 1
Before: Espinosa C
Decision:
In the proceedings 2021/54279:
The Court orders:
(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent.
(2) The appeal is upheld.
(3) Development application No. 619/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 3 Llanfoyst Street, Randwick legally described as Lot 2, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure A.
(4) All exhibits are to be retained.
In the proceedings 2021/54315:
The Court orders:
(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent.
(2) The cl 4.6 written request justifying the contravention of development standard is upheld.
(3) The appeal is upheld.
(4) Development application No. 718/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 4 Llanfoyst Street, Randwick legally described as Lot 1, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure B.
(5) All exhibits are to be retained.

Catchwords:
DEVELOPMENT APPEAL – residential flat building – setback and building separation - streetscape – view sharing - orders
DEVELOPMENT APPEAL – residential flat building – setback and building separation – cl 4.6 written request to justify contravention of maximum building height development standard - streetscape – view sharing - orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Randwick Local Environmental Plan 2012, cl 2.3, 4.3, 4.6, 6.2

Cases Cited:
Bettar v Council of the City of Sydney [2014] NSWLEC 1070
Commonwealth Oil Refineries Ltd v North Sydney Municipal Council 9195970 2 LGRA 217(1957) 2 LGRA 217
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1133
Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Wehbe v Pitwatter Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Wright v Manly Municipal Council (1958) 4 LGRA 29

Texts Cited:
NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Mark Zhang (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
T Hale (Applicant)
S Flanigan (Respondent)
Solicitors:
Madison Marcus (Applicant)
Randwick City Council (Respondent)

File Number(s): 2021/54279
2021/54315
Publication restriction: No

Judgment

COMMISSIONER: This is Class 1 Development Appeal of two separate development applications heard together.…

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: [2022] NSWLEC 1386
Decision Date: 20 July 2022

CaseChat Overview and Summary

Zhang v Randwick City Council involves two separate appeals brought by the applicant, Zhang, against the decisions of the Randwick City Council to refuse development consent for two separate properties located at 3 Llanfoyst Street and 4 Llanfoyst Street, Randwick. The central issue in both cases is whether the council's refusal to grant development consent for the proposed 4-storey residential flat buildings was lawful.

The primary legal issues before the court were whether the council's decisions to refuse development consent were made in accordance with the applicable planning and development laws, and whether the applicant had a valid basis for seeking a review of those decisions. The court had to determine whether the council's refusal was based on valid reasons and whether there were any errors in the decision-making process that warranted the appeal being upheld.

The court found that the council's decisions to refuse development consent were flawed. The council had failed to properly consider the merits of the applications and had not adequately justified their decisions. The court also found that the applicant had a valid basis for seeking a review of the council's decisions. As a result, the court determined that the appeals should be upheld and granted consent to the development applications subject to specific conditions. Additionally, the court ordered that Zhang was to pay the council's costs thrown away as a result of the amendment of the application for development consent.

Orders

Orders of the court

In the proceedings 2021/54279:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent.

(2) The appeal is upheld.

(3) Development application No. 619/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 3 Llanfoyst Street, Randwick legally described as Lot 2, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure A.

(4) All exhibits are to be retained.

In the proceedings 2021/54315:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent.

(2) The cl 4.6 written request justifying the contravention of development standard is upheld.

(3) The appeal is upheld.

(4) Development application No. 718/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 4 Llanfoyst Street, Randwick legally described as Lot 1, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure B.

(5) All exhibits are to be 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:	Zhang v Randwick City Council [2022] NSWLEC 1386
Hearing dates:	14, 15 and 16 March 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	In the proceedings 2021/54279: The Court orders: (1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent. (2) The appeal is upheld. (3) Development application No. 619/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 3 Llanfoyst Street, Randwick legally described as Lot 2, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure A. (4) All exhibits are to be retained. In the proceedings 2021/54315: The Court orders: (1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent. (2) The cl 4.6 written request justifying the contravention of development standard is upheld. (3) The appeal is upheld. (4) Development application No. 718/2020 for the demolition of the existing structures and construction of a 4-storey residential flat building comprising 4 apartments with basement parking at 4 Llanfoyst Street, Randwick legally described as Lot 1, DP 449211 is determined by granting consent to the application subject to the conditions in Annexure B. (5) All exhibits are to be retained.
Catchwords:	DEVELOPMENT APPEAL – residential flat building – setback and building separation - streetscape – view sharing - orders DEVELOPMENT APPEAL – residential flat building – setback and building separation – cl 4.6 written request to justify contravention of maximum building height development standard - streetscape – view sharing - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Randwick Local Environmental Plan 2012, cl 2.3, 4.3, 4.6, 6.2
Cases Cited:	Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Commonwealth Oil Refineries Ltd v North Sydney Municipal Council 9195970 2 LGRA 217(1957) 2 LGRA 217 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1133 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Wehbe v Pitwatter Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Wright v Manly Municipal Council (1958) 4 LGRA 29
Texts Cited:	NSW Department of Planning and Environment, Apartment Design Guide, (July 2015) Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Mark Zhang (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: T Hale (Applicant) S Flanigan (Respondent) Solicitors: Madison Marcus (Applicant) Randwick City Council (Respondent)
File Number(s):	2021/54279 2021/54315
Publication restriction:	No