David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144

Land and Environment Court New South Wales

Medium Neutral Citation: David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144 Hearing dates: 27 October 2021, 20-21 January 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application DA/297/2020 for partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Kensington) and demolition of existing multi dwelling housing (9 Abbotford Street Kensington); construction of a part 3/4 storey boarding house arranged over a central courtyard with 59 boarding rooms (including for a boarding house manager), basement carparking for 21 cars, 14 motorcycle and 14 bicycles; and tree removal and landscape works at 9-13 Abbotford Street, Kensington is determined by way of refusal. (3) Exhibits are returned with the exception of Exhibit G, J and 3. Catchwords: DEVELOPMENT APPLICATION – partial demolition of existing dwelling and constriction of a boarding house – whether the development impacts the heritage significance of the item – whether the development is compatible with the character of the locality – whether the maximum building height standard is exceeded – whether the maximum floor space ratio is exceeded – whether the written request to vary the FSR standard satisfies the preconditions – appeal dismissed. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 8.7 Environmental Planning and Assessment Amendment (Housing) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, ss 5, 30 Randwick Local Environmental Plan 2012, Div 3 Pt 2, cll 1.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 27, 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7 State Environmental Planning Policy No 55- Remediation of Land, cl 7 State Environmental Planning Policy (Resources and Energy) 2021 Cases Cited: Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 137 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 GGD Danks Street Pty Ltd and CR Danks Street Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1521 HPG Mosman Projects Ltd v Mosman Municipal Council [2021] NSWLEC 1243 HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 Texts Cited: NSW Government Gazette No 34 of 29 January 2021 Randwick Comprehensive Development Control Plan 2013 Randwick Heritage Study of March 2021 Category: Principal judgment Parties: David Mitchell Architects Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) G Farland (Applicant) M Astill (Respondent)