Kelly v Randwick City Council [2018] NSWLEC 1322

Land and Environment Court New South Wales

Medium Neutral Citation: Kelly v Randwick City Council [2018] NSWLEC 1322 Hearing dates: 15 June 2018 Date of orders: 03 July 2018 Decision date: 03 July 2018 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The appeal is upheld; (2) Consent is granted to Development Application No. 96/2018 for Strata subdivision of Lot 3118, DP 752015 (in accordance with the proposed form of strata plan lodged with the development application) following completion of construction of dual occupancy (attached) under DA/531/2017, subject to conditions in Annexure A; (3) The exhibits are returned with the exception of Exhibits 1, 4, and A. Catchwords: DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: DM & Longbow Pty Ltd v Willoughby Council [2017] NSWLEC 1358 Category: Principal judgment Parties: Craig Kelly (Applicant) Randwick City Council (Respondent) Representation: Counsel: P Tomasetti, SC (Applicant)

Solicitors: A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/106112 Publication restriction: No

Judgment 1. This development appeal is brought by Craig Kelly (the Applicant) under section 8.7 (1) of the Environmental Planning and Assessment Act 1979 (the Act) following Randwick City Council's refusal of a development application DA/96/2018. The application seeks development consent for a two lot strata subdivision of Lot 3118 in DP 752015, following construction of an approved dual occupancy (attached), at 84 Austral Street Malabar (the Site). 2. The hearing was preceded by conferencing of town planning experts in accordance the directions of the Court. The result of the expert's conference was resolution of the planning issues previously pressed by the Council. It is accepted by the Council that the two lot strata subdivision is acceptable and should be approved subject to the agreed conditions of consent. 3. However there is a legal argument between the parties as the interpretation of cl. 4.1A Minimum subdivision lot size for strata schemes in Zone R2: Contention 1, of the Respondent's Statement of Facts and Contentions (Exhibit 1). 4. The resolution of this question requires an examination of the language in cl 4.1 of the Randwick Local Environmental Plan 2012 (LEP 2012), and its application to the facts of this case.