MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646

MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646

Clause 4.1A(4) of the Randwick Local Environmental Plan 2012 requires each lot resulting from strata subdivision of land containing an attached dual occupancy to have at least 400m2 of land area or ground support for each dwelling. The requirement is not satisfied by aggregating strata cubic spaces, floor areas, courtyards or superimposed levels to reach 400m2. The proposed strata subdivision was therefore not approved, but the demolition of the existing dwelling and construction of the attached dual occupancy warranted consent subject to conditions.

Jurisdiction
Australia
Judgment Date
30 December 2019
Procedural Posture
Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Da/906/2018 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and the Appeal Proceeded to Hearing; Principal Judgment With Addendum and Final Orders
Outcome
Appeal upheld; development consent granted for demolition and erection of an attached two-storey dual occupancy, but consent not granted for the strata subdivision component.
Legal Topics
['development Appeal' 'dual Occupancy (attached)' 'strata Subdivision' 'minimum Subdivision Lot Size' 'randwick Local Environmental Plan 2012 Cl 4.1 A']
['planning and Environment Law' 'development Consent' 'statutory Interpretation'] ['development Appeal' 'dual Occupancy (attached)' 'strata Subdivision' 'minimum Subdivision Lot Size' 'randwick Local Environmental Plan 2012 Cl 4.1 A']

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Procedural Posture

Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Da/906/2018 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and the Appeal Proceeded to Hearing; Principal Judgment With Addendum and Final Orders

Legal Issues

  1. 1 ['How the size of a lot resulting from a strata subdivision under cl 4.1A of the Randwick Local Environmental Plan 2012 is to be measured.' 'Whether the proposed strata subdivision for an attached dual occupancy satisfied the 400 square metre minimum lot size requirement.' 'Whether development consent could be granted for demolition and construction of the attached dual occupancy while not granting consent for strata subdivision.']

Ratio Decidendi

Clause 4.1A(4) of the Randwick Local Environmental Plan 2012 requires each lot resulting from strata subdivision of land containing an attached dual occupancy to have at least 400m2 of land area or ground support for each dwelling. The requirement is not satisfied by aggregating strata cubic spaces, floor areas, courtyards or superimposed levels to reach 400m2. The proposed strata subdivision was therefore not approved, but the demolition of the existing dwelling and construction of the attached dual occupancy warranted consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted for demolition and erection of an attached two-storey dual occupancy, but consent not granted for the strata subdivision component.

Orders

  • ['The appeal is upheld.' "Development consent is granted for DA/906/2018 for the demolition of a single dwelling and erection of an attached two-storey dual occupancy development at 40 Creer Street, Randwick subject to the conditions of consent at Annexure 'A', except for that part of the application for strata...