Clovelly Montessori Academy Pty Ltd v Randwick City Council [2020] NSWLEC 1051

Land and Environment Court New South Wales

Medium Neutral Citation: Clovelly Montessori Academy Pty Ltd v Randwick City Council [2020] NSWLEC 1051 Hearing dates: 3-5 July 2019; 2 and 8 October 2019; 5 December 2019; Agreed conditions filed 9 January 2020 Date of orders: 06 February 2020 Decision date: 06 February 2020 Jurisdiction: Class 1 Before: Smithson C Decision: The orders of the Court are: (1) Leave is granted to the applicant to rely upon amended plans. (2) The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The clause 4.6 request to exceed the height standard is not upheld. (4) The appeal is dismissed. (5) Development application DA/537/2017 for a child care centre at 45-51 Burnie Street, Clovelly is refused. (6) The exhibits are returned except Exhibits A, U and 1. Catchwords: DEVELOPMENT APPLICATION – Child care centre – overdevelopment – height non-compliance – whether FSR compliant – clause 4.6 – setbacks – amenity for neighbours – compatibility with local character – impact of flooding – design of play areas – resident objections – public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Education and Care Services National Regulation Cases Cited: Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelHM Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Child Care Planning Guideline, NSW Department of Planning (2017) Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Clovelly Montessori Academy Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: J Palmer (Solicitor) (Applicant) K Gerathy (Solicitor) (Respondent)