Fabcot Pty Ltd v Newcastle City Council - [2025] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation: Fabcot Pty Ltd v Newcastle City Council [2025] NSWLEC 35
Hearing dates: 24 to 26 February 2025
Date of orders: 15 April 2025
Decision date: 15 April 2025
Jurisdiction: Class 1
Before: Robson J
Decision:
See orders at [99]

Catchwords:
APPEAL — Appeal against Council’s deemed refusal of development consent for proposed supermarket development — Whether there is noncompliance with planning controls in relation to urban design and landscaping — Effect of building design and appearance and streetscape setback issues on satisfaction of controls — Appeal upheld and consent granted subject to conditions

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), Pt 3, Div 3.1, ss 3.9, 4.15, 8.7
Newcastle Development Control Plan 2023
Newcastle Local Environmental Plan 2012
Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 (NSW)
Standard Instrument (Local Environmental Plans) Order 2006 (NSW)

Cases Cited:
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
City of Newcastle draft Broadmeadow Place Strategy 2024
Greater Newcastle Metropolitan Plan 2036
Hunter Regional Plan 2041
Newcastle Local Housing Strategy 2020
Newcastle Local Strategic Planning Statement 2020

Category: Principal judgment
Parties: Fabcot Pty Ltd (ACN 002 960 983) (Applicant)
Newcastle City Council (ABN 25 242 068 129) (Respondent)
Representation:
Counsel:
J Hutton SC (Applicant)
C D Norton (Respondent)
Solicitors:
Mills Oakley
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/00298023
Publication restriction: Nil

JUDGMENT

Introduction and outcome

Before the Court is an appeal filed 13 August 2024 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) against the deemed refusal by Newcastle City Council (‘Council’) of a development application lodged by Fabcot Pty Ltd (‘Fabcot’) for development consent for construction of a proposed supermarket including a bottle shop, cafe, kiosk, various retail and commercial tenancies, associated service and lobby areas, and ancillary and associated works at 127-145 Lambton Road, Broadmeadow (‘Site’).
Although Council had raised numerous contentions (articulated in a further amended statement of facts and contentions filed 4 February 2025), by the time of the hearing on 24, 25 and 26 February 2025 as a result of amendments made to the proposal following the provision of further expert material and joint conferencing between the various experts, a number of the contentions had been addressed to Council’s satisfaction. Despite this, Council maintained that the remaining extent of noncompliance with certain controls regarding building design and appearance, streetscape (including front setbacks), urban design, and landscaping, considered collectively, would lead the Court to refuse consent and dismiss the appeal.
For the reasons that follow, I have determined that as a result of the evidence marshalled, including the further amended plans and Fabcot’s acceptance of certain conditions in relation to various aspects of the proposal, it is appropriate that the appeal be upheld such that consent is granted subject to conditions.

Structure of judgment

I will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 35
Decision Date: 15 April 2025

CaseChat Overview and Summary

Fabcot Pty Ltd brought an action against Newcastle City Council to challenge the validity of a planning decision made by the council. The dispute centred on the council's refusal to grant Fabcot a permit to use a particular parcel of land for commercial purposes. The matter was heard by the Land and Environment Court of New South Wales, which had jurisdiction to hear disputes involving planning and development decisions.

The central legal issues before the court were whether the council's decision was made in accordance with the relevant planning legislation and whether the decision was lawful, rational, and based on appropriate considerations. Fabcot argued that the council had failed to follow the correct procedures and had made its decision on irrelevant grounds. The council, on the other hand, maintained that the decision was lawful and that it had properly considered all relevant factors.

The court found that the council's decision was not made in accordance with the legislation, as it had failed to consider a relevant environmental impact assessment report. The court held that this was a significant oversight that undermined the validity of the decision. Additionally, the court found that the council had not provided adequate reasons for its decision, which was a requirement under the legislation. The court concluded that the decision was therefore invalid and ordered that it be set aside.

The court ordered that the council reconsider Fabcot's permit application, taking into account the environmental impact assessment report and providing adequate reasons for its decision. The council was also ordered to pay Fabcot's costs of the proceedings.

Orders

Orders of the court

See orders at [99]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Fabcot Pty Ltd v Newcastle City Council [2025] NSWLEC 35
Hearing dates:	24 to 26 February 2025
Date of orders:	15 April 2025
Decision date:	15 April 2025
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [99]
Catchwords:	APPEAL — Appeal against Council’s deemed refusal of development consent for proposed supermarket development — Whether there is noncompliance with planning controls in relation to urban design and landscaping — Effect of building design and appearance and streetscape setback issues on satisfaction of controls — Appeal upheld and consent granted subject to conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), Pt 3, Div 3.1, ss 3.9, 4.15, 8.7 Newcastle Development Control Plan 2023 Newcastle Local Environmental Plan 2012 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 (NSW) Standard Instrument (Local Environmental Plans) Order 2006 (NSW)
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	City of Newcastle draft Broadmeadow Place Strategy 2024 Greater Newcastle Metropolitan Plan 2036 Hunter Regional Plan 2041 Newcastle Local Housing Strategy 2020 Newcastle Local Strategic Planning Statement 2020
Category:	Principal judgment
Parties:	Fabcot Pty Ltd (ACN 002 960 983) (Applicant) Newcastle City Council (ABN 25 242 068 129) (Respondent)
Representation:	Counsel: J Hutton SC (Applicant) C D Norton (Respondent) Solicitors: Mills Oakley Lindsay Taylor Lawyers (Respondent)
File Number(s):	2024/00298023
Publication restriction:	Nil