Fesena Pty Ltd v Randwick City Council - [2012] NSWLEC 1276

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) 2007
Cases 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 446
Category: 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…

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: [2012] NSWLEC 1276
Decision Date: 09 October 2012

CaseChat Overview and Summary

Fesena Pty Ltd, the appellant, sought to challenge the refusal of a development application by Randwick City Council, the respondent, concerning a proposed building at 7 Dutruc Street, Randwick. The dispute involved the approval of plans for a hydrotherapy pool, ancillary facilities, and basement car parking. The matter was heard in the Land and Environment Court of New South Wales. The appellant argued that the council's refusal of the development application was invalid and sought to overturn the decision. The central legal issues revolved around whether the council's decision was lawful and whether there were any procedural errors or substantial unfairness in the decision-making process. Additionally, the court had to consider whether the council's decision was supported by sufficient evidence and whether it adhered to the relevant planning policies and guidelines. The court meticulously examined the council's decision-making process, the evidence presented, and the relevant planning policies. It determined that the council's decision was based on proper consideration of the evidence and was in line with the applicable planning framework. The court found no procedural errors or substantial unfairness in the decision-making process. Furthermore, the court held that the council's decision was supported by sufficient evidence and appropriately balanced the competing interests involved in the matter. Consequently, the court dismissed the appeal and upheld the council's decision to refuse the development application.

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

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:	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) 2007
Cases 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 446
Category:	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