Land and Environment Court
New South Wales
Medium Neutral Citation: Fesena Pty Ltd v Randwick City Council [2012] NSWLEC 1276 Hearing dates: 19 June 2012, 27 August 2012 Decision date: 09 October 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed.
2. DA 700/2010 for the construction of a building containing a hydrotherapy pool with ancillary facilities and basement car parking at 7 Dutruc Street Randwick is refused.
3. The exhibits are returned with the exception of exhibit 1.
Catchwords: DEVELOPMENT APPLICATION: construction of building containing a hydrotherapy pool and ancillary facilities and basement car parking to be used in association with an existing physiotherapy centre - unacceptable bulk, scale and visual impact - breach of landscaped area - overshadowing - removal of existing trees Legislation Cited: draft Randwick Local Environmental Plan 2011
Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
State Environmental Planning Policy No 1
State Environmental Planning Policy (Infrastructure) 2007Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444
Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244
Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Wehbe v Pittwater Council [2007] 156 LGERA 446Category: Principal judgment Parties: Fesena Pty Ltd (Applicant)
Randwick City Council (Respondent)Representation: Mr S Klinger, solicitor (Applicant)
Mr A Seton, solicitor (Respondent)
Mr S Klinger (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 11203 of 2011
Judgment
COMMISSIONER: This appeal relates to the refusal by Randwick City Council (the council) of DA 700/2010 for the construction of a 10.6 m x 14 m building containing a hydrotherapy pool with ancillary facilities and 3 basement car parking spaces to be used in association with an existing physiotherapy centre at 7 Dutruc Street Randwick (the site). The proposal and existing physiotherapy centre form part of the Eastern Suburbs Private Hospital (the Hospital)
The Hospital also has a frontage to St Marks Road and comprises 8 lots with an area of around 5430 sq m. The existing physiotherapy centre is located on Lot 4 and has residential development on its southern and part of its eastern boundaries. The local area, excluding the Hospital, is characterised by mixed residential development consisting of medium density residential flat building up to four storeys in height, detached dwellings and terraces.
The contentions raised by the council relate to:
1. unacceptable bulk, scale and visual impact, including whether an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the landscaped area development standard is well founded,
2. unacceptable levels of overshadowing on an adjoining residential property,
3. inappropriate design, given its location within a Conservation Are, and
4. unacceptable removal of existing trees and potential threats to the longevity of existing trees.
Relevant planning controls
The site is located within Zone No. 2B (Residential B Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). The proposed development is prohibited within Zone No. 2B.
Consent…
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- Case
- [2012] NSWLEC 1276
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The appeal is dismissed.
2. DA 700/2010 for the construction of a building containing a hydrotherapy pool with ancillary facilities and basement car parking at 7 Dutruc Street Randwick is refused.
3. The exhibits are returned with the exception of exhibit 1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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