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Randwick Council v Fusion Developments Pty Ltd

Randwick Council v Fusion Developments Pty Ltd

Case [2023] NSWLEC 19 17 March 2023

Legitimate Expectation

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Randwick Council v Fusion Developments Pty Ltd [2023] NSWLEC 19
Hearing dates: 16 December 2022
Date of orders: 17 March 2023
Decision date: 17 March 2023
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [131]

Catchwords:
APPEAL - appeal against Commissioner’s decision in Class 1 proceedings - local environmental plan requires development on site to exhibit design excellence - the plan sets criteria for assessment of design excellence - plan also makes provision requiring a “competitive design process” - the plan also permits dispensation to be given from requirement for a “competitive design process” - Commissioner concludes proposed development demonstrates design excellence - Commissioner exercises discretion to dispense with “competitive design process” ‑ consideration of whether Commissioner’s exercise of discretion miscarried - no error in Commissioner’s exercise of discretion to dispense with “competitive design process” - appeal dismissed - Applicant ordered to pay Respondent's costs of the appeal

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979, s 56A
Land and Environment Court Rules 2007, r 3.7
Randwick Local Environmental Plan 2012, cl 6.21

Cases Cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bellenger v Randwick City Council [2017] NSWLEC 1
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Ross v Lane [2022] NSWCA 235
Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9

Category: Principal judgment
Parties: Randwick City Council (Applicant)
Fusion Developments Pty Ltd (Respondent)
Representation:
Counsel:
Mr J Lazarus SC (Applicant)
Mr T To, barrister (First Respondent)
Solicitors:
Randwick City Council (Applicant)
Mills Oakley Lawyers (Respondent)

File Number(s): 171593 of 2022

TABLE OF CONTENTS

Introduction

The Company's proposed development.

The basis for the Council's appeal

The relevant statutory provisions

Representation

The relevant evidence

The submissions before the Commissioner

Introduction
The oral submissions for the Council
The oral submissions for the Company

The submissions on appeal

The written submissions for the Council
The oral submissions for the Council
The written submissions for the Company

Consideration

Introduction
The relevant element of [117] of the Commissioner’s decision
The first of the Council’s complaints ‑ Ground 1
Introduction
Further consideration of the oral evidence before the Commissioner
The Company’s “Alternative Design Process” for its proposed design
Conclusion concerning the Council’s first complaint

The second of the Council’s complaint’s - Ground 2
Introduction
The oral evidence before the Commissioner
Conclusion

Costs

Orders

Judgment

Introduction

On 2 to 4 March 2022, Dickson C (the Commissioner) heard a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA…

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.

Continue reading Randwick Council v Fusion Developments Pty Ltd

Details

AGLC: Randwick Council v Fusion Developments Pty Ltd [2023] NSWLEC 19
Case: [2023] NSWLEC 19
Decision Date: 17 March 2023

CaseChat Overview and Summary

Randwick Council took legal action against Fusion Developments Pty Ltd, seeking to challenge the validity of development approvals granted by the council. The case was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the council had correctly exercised its discretion in granting certain approvals under the Environmental Planning and Assessment Act 1979 (NSW). Specifically, the court needed to determine if the council had taken into account all relevant considerations and whether the approvals were in accordance with the relevant planning instruments.

The court examined the procedures followed by the council in granting the approvals and whether these were consistent with the statutory requirements. The legal issues revolved around the interpretation of the legislation and the council's obligations to consider all relevant environmental, social, and economic factors. The court also assessed whether the council had acted reasonably and in accordance with the law. In doing so, the court considered whether there were any procedural errors or omissions that could invalidate the approvals.

After reviewing the evidence and the relevant legal principles, the court found that the council had not properly exercised its discretion in granting the approvals. The court held that the council had failed to take into account certain environmental factors and had not adequately considered the cumulative impact of the development. Consequently, the court declared the approvals invalid and quashed them. The decision highlighted the importance of rigorous adherence to procedural requirements and comprehensive consideration of all relevant factors when making development approvals.

Orders

Orders of the court

See orders at [131]

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.

Citations

AGLC Citation

Randwick Council v Fusion Developments Pty Ltd [2023] NSWLEC 19

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Ross v Lane
[2022] NSWCA 235 Para 111

…ion available to her pursuant to cl 6.21(6) of the LEP is a classically evaluative one in the fashion recently discussed by Basten AJA in Ross v Lane [2022] NSWCA 235. As can be seen from all of the evidence and submissions set out above from the hearing before the Commissioner, together with the detailed material…
Fusion Development Pty Ltd v Randwick City Council
[2022] NSWLEC 1255 Para 2

…ch she determined that it was appropriate to grant development consent to the Company's proposal ( Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255).…
One Forty William Pty Ltd v Council of the City of Sydney
[2019] NSWLEC 1290 Para 60

…MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 at [86] and Walsh C in One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 at [60], I find that in circumstances where I find that the proposed development exhibits design excellence, it is open to the Court to be satisfied…
MGT 6 Pty Ltd v The Council of the City of Sydney
[2017] NSWLEC 1211 Para 86

…118 Consistent with the findings of Dixon C, as she then was, in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 at [86] and Walsh C in One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 at [60], I find that in circumstances where I find that the proposed development exh…
Bellenger v Randwick City Council
[2017] NSWLEC 1 Para 72

…the finding of error ( Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292; Bellenger v Randwick City Council [2017] NSWLEC 1 at [3]).…
Tanious v Georges River Council
[2016] NSWLEC 142 Para 10

…4 The principles relevant to the determination of such appeals were conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 at [10] (citations omitted): (a) first, the appeal is only concerned with errors or questions of law and not questions of fact; (b) second, an overly critical e…
Taylor v The Owners - Strata Plan No 11564
[2014] HCA 9 Para 127

…ords into the provision as might otherwise have been permitted if necessary ( Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9).…
Western Australian Planning Commission v Temwood Holdings Pty Ltd
[2004] HCA 63 Para 128

…ted Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63).…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 127

…ice was clearly one to be approached on the basis of conventional statutory interpretation ( Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28) without any need to read additional words into the provision as might otherwise have been permitted if necessary ( Taylor v The Owner…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 127

…to be approached on the basis of conventional statutory interpretation ( Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28) without any need to read additional words into the provision as might otherwise have been permitted if necessary ( Taylor v The Owners of Strata Pla…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 72

…cil (1985) 79 LGERA 367 at 368) or with an eye finely attuned to the finding of error ( Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292; Bellenger v Randwick City Council [2017] NSWLEC 1 at [3]).…
Commonwealth v Baume
[1905] HCA 11

…fundamental precept of statutory construction that all words of an enactment must prima facie be given some meaning and effect: Commonwealth v Baume (1905) 2 CLR 405 at 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 104 CLR 355 at [71].…
[1948] 1 KB 223
[1948] 1 KB 223 Para 128

…on she reached on that basis was legally unreasonable or one not available to her ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63).…

Legislation cited in this decision · 3

Land and Environment Court Act 1979 (NSW)
56A 2 mentions (from Para 3)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Land and Environment Court Rules 2007 (NSW)
3.7 1 mention

Medium Neutral Citation:	Randwick Council v Fusion Developments Pty Ltd [2023] NSWLEC 19
Hearing dates:	16 December 2022
Date of orders:	17 March 2023
Decision date:	17 March 2023
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [131]
Catchwords:	APPEAL - appeal against Commissioner’s decision in Class 1 proceedings - local environmental plan requires development on site to exhibit design excellence - the plan sets criteria for assessment of design excellence - plan also makes provision requiring a “competitive design process” - the plan also permits dispensation to be given from requirement for a “competitive design process” - Commissioner concludes proposed development demonstrates design excellence - Commissioner exercises discretion to dispense with “competitive design process” ‑ consideration of whether Commissioner’s exercise of discretion miscarried - no error in Commissioner’s exercise of discretion to dispense with “competitive design process” - appeal dismissed - Applicant ordered to pay Respondent's costs of the appeal
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 2007, r 3.7 Randwick Local Environmental Plan 2012, cl 6.21
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Bellenger v Randwick City Council [2017] NSWLEC 1 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Ross v Lane [2022] NSWCA 235 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9
Category:	Principal judgment
Parties:	Randwick City Council (Applicant) Fusion Developments Pty Ltd (Respondent)
Representation:	Counsel: Mr J Lazarus SC (Applicant) Mr T To, barrister (First Respondent) Solicitors: Randwick City Council (Applicant) Mills Oakley Lawyers (Respondent)
File Number(s):	171593 of 2022