Land and Environment Court
New South Wales
Medium Neutral Citation: Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255 Hearing dates: 2- 4 March 2022 Date of orders: 23 May 2022 Decision date: 23 May 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that:
(1) The appeal is upheld;
(2) Development consent is granted to development application DA/489/2020 for demolition of existing structures, construction of a part 5, part 16 storey mixed use development over basement carparking at 273-275 Anzac Parade Kingsford (Lot 1 DP129966 and Lot 1 DP940263), subject to the conditions of consent in Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/489/2020 as agreed or assessed.
(4) Exhibits are returned with the exception of Exhibits A, E and 6 which are to be retained.
Catchwords: DEVELOPMENT APPLICATION – mixed use development, boarding house – site is part of key site under planning controls – whether a competitive design process is unreasonable or unnecessary in the circumstances of the development– whether the development exhibits design excellence – weight to be given to new development control plan – appeal upheld
Legislation Cited: Architects Act 2003
Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.7, 8.15
Environmental Planning and Assessment
Amendment (Housing) Regulation 2021
Environmental Planning and Assessment Regulation 2000, cl 55
Environmental Planning and Assessment Regulation 2021, cl 29
Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 6.2, 6.4, 6.10, 6.11, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 29, 30, 30A
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, cll 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70
State Environmental Planning Policy (Infrastructure) 2007, cll 85, 86
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28
State Environmental Planning Policy (Resources and Energy) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021 cll 2.98, 2.118, 2.119, 2.121
Water Management Act 2000, s 90
Cases Cited: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211
One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Tamvakeras v Inner West Council [2022] NSWLEC 1140
Tomasic v Port Stephens [2021] NSWLEC 56Wehbe v Pittwater (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Australian Standard AS 2107:2016 “Acoustics - Recommended design sound levels and reverberation times for building interiors”, (October 2016)
NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)
NSW Department of Planning, Development Near Rail Corridors and Busy Roads- Interim Guideline, (December 2008)
Australian…
Keep reading for free
Create a free CaseChat account to read Fusion Development Pty Ltd v Randwick City Council and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] NSWLEC 1255
- Decision Date
CaseChat Overview and Summary
The Court found that the Council's decision to refuse the development consent was unreasonable, as the assessment had not been in accordance with the statutory guidelines, and there were procedural flaws in the assessment process. The Court noted that the assessment had not considered the appropriate criteria, and had instead focused on unrelated matters. The Court also found that the assessment process had failed to observe a principle of natural justice, as the applicant had not been given an opportunity to address the concerns raised in the assessment.
As a result of the Court's findings, the appeal was upheld and development consent was granted to the applicant for the proposed mixed-use building. The Court ordered that the applicant pay the costs of the respondent that were thrown away as a result of the amendment of the development application, and that certain exhibits be retained for future use. The Court also ordered that the exhibits be returned, with the exception of three exhibits which were to be retained.
Orders
Orders of the court
The Court orders that:
(1) The appeal is upheld;
(2) Development consent is granted to development application DA/489/2020 for demolition of existing structures, construction of a part 5, part 16 storey mixed use development over basement carparking at 273-275 Anzac Parade Kingsford (Lot 1 DP129966 and Lot 1 DP940263), subject to the conditions of consent in Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/489/2020 as agreed or assessed.
(4) Exhibits are returned with the exception of Exhibits A, E and 6 which are to be retained.
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.