McDonald v Randwick City Council [2012] NSWLEC 1175

Land and Environment Court New South Wales

Medium Neutral Citation: McDonald v Randwick City Council [2012] NSWLEC 1175 Hearing dates: 14 June 2012 Decision date: 26 June 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 542/11 to enclose an existing balcony at apartment 11, 98 Mount Street, Coogee is refused consent. 3. The exhibits, other than exhibits 3, A and C, are returned. Catchwords: DEVELOPMENT APPLICATION: Enclosure of existing balcony, FSR, precedent. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group v North Sydney Council (2001) 130 LGERA 79 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Mr Luke McDonald (Applicant) Randwick City Council (Respondent) Representation: Mr Paul Vergotis (Agent) (Applicant) Mr Ken Webber (Solicitor) (Respondent) Solicitors Wilshire Webb Staunton Beattie Solicitors (Respondent) File Number(s): 10272 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 542/11 (the application) by Randwick City Council (the council) to enclose the existing balcony, at apartment 11, 98 Mount Street, Coogee (the site). 2The appeal was subject to mandatory conciliation and arbitration on 14 June 2012 in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the residential flat building and adjacent area and heard from two resident objectors. Soon after the commencement of the conciliation conference, the parties advised that there was no prospect of an agreement being reached and so the conciliation conference was terminated and a hearing held forthwith pursuant to s 34AA(2)(b). 3The contentions in the matter can be summarised as: * The proposal exceeds the floor space ratio (FSR) control for the site; * The proposal interferes with the original design of the residential flat building; and * Approving the enclosure of the balcony will set a precedent for enclosing balconies within this building and will result in an inconsistent external appearance where some balconies are enclosed and some are not.