LEC Overturned, Clearing Way for Fortis Elizabeth Bay Plan

Developer Fortis has secured approvals for its $246-million, luxury Elizabeth Bay project after a Land and Environment Court refusal was overturned on appeal. Plans for the site at 21C Billyard Avenue and 10 Onslow Avenue in the blue-ribbon suburb were filed in August of 2023 . Fortis’s project replaced two brick buildings in favour of a five and six-storey building of 20 apartments designed by Smart Design Studio. But it was deemed refused as the City of Sydney did not make a determination in time—far from a rare occurrence in the NSW planning process. Fortis then went down the route many developers are taking, including Terra Ferma, which recently went to court over its luxury project in another high-end Sydney suburb , and filed an appeal with the LEC. But what may have been a relatively straightforward conciliation and negotiation process turned out to be anything but. The LEC case As part of the LEC process, Fortis worked with the City of Sydney to refine its plans and to take into account submissions made by the public as well as matters raised by the council, Mills Oakley special counsel Emma Whitney, who acted on the developer’s behalf, said. Refining these plans in collaboration with the council, as is often the case, led to the council withdrawing or no longer pressing its “substantive contentions” against the project, it was acknowledged in the LEC appeal case notes. ▲ The previous designs for the project ( pictured ) were amended during negotiations. “It was on these plans that both Fortis and the council sought orders, by consent, for the approval of the court,” Whitney said. But, crucially, this agreement was not undertaken through a standard conciliation process over which the commissioner would preside and be obliged to grant development consent, according to the LEC notes. “Despite the parties and their experts being in agreement, the commissioner dismissed the appeal.” The refusal was a bit of a shock, given the timing right before the Christmas holidays and the fact that the negotiation process with council had been successful. “The failure of the court to make orders by consent, granting approval to a development application, is very rare,” Whitney said. “Extensive evidence was given by both parties’ experts in writing and in the witness box at the consent orders hearing to confirm that it was both lawful and appropriate for the court to grant approval.” ▲ The existing properties on Onslow and Billyard Avenues, Elizabeth Bay. But despite that the overall findings of the experts were supportive of the development, Commissioner Walsh was “not satisfied that the proposed development is consistent with the objectives for development within the applicable R1 General Residential zone”. He said the proposed development “would not provide for the housing needs of the community” and listed other issues that had either not been in contention or had already been agreed upon. However, LEC chief judge Brian Preston set aside the commissioner’s refusal four months later, saying that Walsh had “made findings of fact on view loss and other matters, which were inconsistent with the parties’ agreed position and the experts’ evidence”. The chief judge said Walsh had relied on his own observations and “independent research”, and upheld Fortis’s appeal. Given that it was a deemed refusal, rather than an actual refusal, the council retained the power to determine the development application. It was subsequently approved at the City of Sydney’s local planning panel meeting in April. ▲ A rendering of the Fortis Elizabeth Bay project. Fortis head of acquisitions John Yacoub said that the team had collaborated for two years with the council on the project. “While the process took longer than expected, this is always a possibility in property development,” he told The Urban Developer. “Throughout the process we remained focused on working closely with council to ensure the final outcome not only met planning objectives but contributed meaningfully to the fabric of the local area.” While mercifully a rare occurrence, the case showed the importance of preparation and investing in expert witnesses, as well as negotiation and engaging in a conciliation process with council. The development The now-approved Elizabeth Bay project is Fortis’s first residential development in the high-end Harbourside enclave. Dubbed Regency House, it will deliver 20 apartments of two, three and four bedrooms. The sites currently have 28 apartments, however the approved project, as the court case highlighted, has 10 more bedrooms. The project is a collaboration between designers at Smart Design Studio, Arent &amp; Pyke, and Wyer &amp; Co. Demolition works on the site are slated to begin immediately. ▲ A rendering of the Harbour view from the development.

LEC Overturned, Clearing Way for Fortis Elizabeth Bay Plan

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