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

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

Condition 43 was deleted because the council's undergrounding requirement, even if treated as a policy, had not been supported by research or public consultation, had not been reviewed, was not shown to relate to planning instruments or a DCP, and its cost was not justified by the minimal visual benefit. DA/18/2009 was refused because the proposed Lots 2 and 3 and their dwellings were significantly different from the prevailing subdivision and dwelling pattern, created an uncharacteristic relationship with existing dwellings, and were incompatible with the character of the locality, so consent could not be granted under cl 37A of Randwick Local Environmental Plan 1998.

Jurisdiction
Australia
Judgment Date
04 December 2009
Procedural Posture
Development Appeals / Judgment After Hearing of Two Appeals Against Refusal by Randwick City Council
Outcome
Appeal No 10501 of 2009 upheld; Appeal No 10502 of 2009 dismissed.
Legal Topics
['modification of Development Consent' 'undergrounding of Power Lines' 'floor Space Ratio' 'compatibility With Character of Locality' 'residential Amenity' 'torrens Title Subdivision' 'special Uses Zone']
['planning and Environment' 'development Consent' 'land Use and Subdivision'] ['modification of Development Consent' 'undergrounding of Power Lines' 'floor Space Ratio' 'compatibility With Character of Locality' 'residential Amenity' 'torrens Title Subdivision' 'special Uses Zone']

Case Brief

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Procedural Posture

Development Appeals / Judgment After Hearing of Two Appeals Against Refusal by Randwick City Council

Legal Issues

  1. 1 ['Whether condition 43 requiring overhead power lines and telecommunication cables to be relocated underground should be deleted from DA/1069/2007.' 'Whether the proposed construction of 2 x single storey dwellings with car parking and associated works and Torrens Title subdivision into three lots was compatible with the character of the locality under cl 37A of Randwick Local Environmental Plan 1998.' 'Whether the proposed development would adversely affect the amenity of nearby and adjoining development under cl 37A of Randwick Local Environmental Plan 1998.' 'Whether approval of DA/18/2009 would breach s 80(2) and/or s 83D(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the floor space ratio exceeded the applicable requirement in cl 32(5) of Randwick Local Environmental Plan 1998.']

Ratio Decidendi

Condition 43 was deleted because the council's undergrounding requirement, even if treated as a policy, had not been supported by research or public consultation, had not been reviewed, was not shown to relate to planning instruments or a DCP, and its cost was not justified by the minimal visual benefit. DA/18/2009 was refused because the proposed Lots 2 and 3 and their dwellings were significantly different from the prevailing subdivision and dwelling pattern, created an uncharacteristic relationship with existing dwellings, and were incompatible with the character of the locality, so consent could not be granted under cl 37A of Randwick Local Environmental Plan 1998.

Court Disposition

Appeal No 10501 of 2009 upheld; Appeal No 10502 of 2009 dismissed.

Orders

  • ['For Appeal No 10501 of 2009, the appeal is upheld.' 'DA/1069/2007 for the construction of a multi-unit housing development at 29W Finucane Crescent, Matraville is modified by the deletion of condition 43 and is approved subject to the conditions in Annexure A.' 'For Appeal No 10501 of 2009, the exhibits are...