Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68

Land and Environment Court New South Wales

Medium Neutral Citation: Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68 Hearing dates: 7, 8 and 9 June 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [162] and [163] Catchwords: APPEAL - development application for dual occupancy (attached) over basement garage - deemed refusal - development permissible with consent in R2 Low Density Residential zone - proposed development generally compliant with building envelope controls - zone objective seeks consistency with desired future character of the area - non‑compliance with development control plan (DCP) - basement garage inconsistent with DCP control - excavation for garage also inconsistent with DCP control - dual occupancies (attached) near the proposed development define the desired future character of the streetscape - desired future streetscape does not include basement car‑parking - weight to be given to DCP controls - proposed development inconsistent with desired future character and DCP controls - proposed development unacceptable - development consent refused - appeal dismissed APPEAL - deemed refusal of application to strata subdivide proposed dual occupancy (attached) - proposed strata subdivision contingent on granting consent to proposed dual occupancy (attached) - proposed dual occupancy (attached) refused development consent - refusal renders strata title appeal futile - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 3.42, 4.15 and 8.7 Land and Environment Court Rules 2007, r 3.7 Randwick Local Environmental Plan 2012, cll 2.3(2), 4.1A, 4.3 and Land Use Table Randwick Development Control Plan 2013, Pt C1, cll 4 and 6 Cases Cited: Manzie v Willoughby City Council [1996] LEC 26 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Category: Principal judgment Parties: Craig Kelly (Applicant in Matter No 362912 of 2020) Lea Drake (Applicant in Matter No 38001 of 2021) Randwick City Council (Respondent in both matters) Representation: Counsel: Mr P Tomasetti SC (Applicants in both matters) Mr M Astill, barrister (Respondent in both matters on 7 and 8 June 2021) Mr I Hemmings SC/Mr M Astill, barrister (Respondent in both matters on 9 June)