Kain Projects Pty Ltd v Randwick City Council - [2009] NSWLEC 1407

Land and Environment Court

of New South Wales

CITATION: Kain Projects Pty Ltd v Randwick City Council [2009] NSWLEC 1407

PARTIES:
APPLICANT
Kain Projects Pty Ltd
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10501; 10502 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- two separate appeals for same site - modification of consent to remove condition requiring undergrounding of power cables and refusal of the construction of 2 x single storey dwellings with car parking and associated works and the Torrens Title subdivision into three lots - incompatibility with the character of the locality - amenity impacts - breach of floor space ratio requirement

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998

CASES CITED: Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 24, 25 November 2009

DATE OF JUDGMENT:
4 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Jackson, solicitor
SOLICITORS
Pikes Lawyers
RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 December 2009

10501 and 10502 of 2009 Kain Projects Pty Ltd v Randwick City Council
JUDGMENT

1 COMMISSIONER: These are two separate appeals that relate to the same property at 29W Finucane Crescent, Matraville (the site). Appeal No 10501 of 2009 is an appeal against the refusal by Randwick City Council (the council) of an application to modify a development consent and Appeal No 10501 of 2009 is an appeal against the refusal by the council of a new development application on the site.

The site

2 The site was formerly owned by Sydney Water and was the location of a sewer easement containing a sewer pipeline and other infrastructure used by Sydney Water. Prior to the use by Sydney Water, the site was used as a waste incinerator.

3 The site is irregular in shape and consists of two main areas within the single lot. The eastern area of the site was previously used for the incinerator and is generally rectangular in shape with a frontage of the 60.9 m to Kain Avenue and a frontage of 52.4 m to Finucane Crescent and an approximate area of 3335 sq m. The western area of the site was previously used as a secondary access handle from Lawson Street to the incinerator. It is long and narrow with a width ranging between 6 m at the Lawson Street frontage, 10.7 m at the midpoint and 13 m at the point where it joins the eastern area of the site. It has a length of approximately 167 m and an area of 2069 sq m.

4 The site and adjoining area consists predominantly of detached residential dwellings and some dual occupancy developments.

Background

5 DA/1069/2007 provided for the construction of a multi-unit housing development consisting of 19 dwellings, comprising 16 x part 2 and 3-storey townhouses on the eastern area of the site, a two-storey dual occupancy development and a single storey dwelling on the western area of the…

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: [2009] NSWLEC 1407
Decision Date: 4 December 2009

CaseChat Overview and Summary

Kain Projects Pty Ltd v Randwick City Council involved two separate appeals concerning a property at 29W Finucane Crescent, Matraville. The first appeal, No 10501 of 2009, contested the refusal by Randwick City Council to modify a development consent, specifically seeking the removal of a condition requiring the undergrounding of power cables. The second appeal, No 10502 of 2009, opposed the council's denial of a new development application to construct two single-storey dwellings with car parking and to subdivide the site into three lots. The legal issues centered on whether the proposed modifications and new developments complied with planning controls and whether they would adversely impact the character and amenity of the locality.

The court examined the background of the property, previously used by Sydney Water and zoned as a Special Uses Zone. It considered the implications of the proposed modifications and new developments against the Randwick Local Environmental Plan 1998 and the Environmental Planning and Assessment Act 1979. The court assessed the undergrounding policy's validity, finding it flawed due to lack of research, consultation, and review, leading to its deletion. Regarding the new development application, the court found the proposed dwellings incompatible with the locality's character due to their narrow width and long length, differing significantly from the existing residential dwellings. Additionally, the court ruled that approving the new development would breach s 80(2) of the EPA Act and s 83D of the same Act.

Ultimately, the court upheld the appeal in No 10501 of 2009, approving the development consent with the deletion of condition 43, subject to specific conditions. For No 10502 of 2009, the appeal was dismissed, and the development application was refused. The court's decision highlighted the importance of maintaining the locality's character and ensuring development proposals are compatible with existing planning controls and nearby developments.

Orders