Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255

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 Standard AS 2107:2016 "Acoustics - Recommended design sound levels and reverberation times for building interiors" Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Fusion Development Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: T To (Applicant) M Astill (Respondent)