An artist's impression of the playground at Fitzroy Gardens in Kings Cross

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The Land and Environment Court has granted an injunction against the City of Sydney Council building a canopy over the playground at Fitzroy Gardens in Kings Cross, as part of its broader upgrade plans for the park.

The decision prevents the Council from building the 45-square metre, five-metre high and steel-framed canopy until a development application (DA) has been approved.

The structure needs to fit the development standards set out in the Environment Planning Policy (Infrastructure) Act 2007. However, the court has allowed the rest of Council’s planned upgrade to go ahead.

The decision is a win for the applicant Andrew Woodhouse, President of the Potts Point and Kings Cross Heritage Conversation Society.

Mr Woodhouse said the court’s decision provided the Council with two options with regards to the canopy.

“The court’s decision last Friday forces Council to stop work immediately and either (a) issue a DA for this mega-canopy or (b) severely reduce its size by half,” he said.

“This decision is a victory for common sense, which is not common enough in this Council. It vindicates my decision to go to court in the public interest – a point the court accepted.”

The decision comes after more than four years of the Potts Point and King Cross community lobbying against the redevelopment of Fitzroy Gardens. The lobbying included community concern over a non-delivered DA for the upgrade of the playground, concern over demolition of a wall mosaic and refurbishment of the famous El-Alamein Fountain.

A City of Sydney spokesperson said the decision upholds Council’s position that the Fitzroy Gardens development is exempt development under state planning laws.

“The City is currently reviewing the decision and considering whether it intends to lodge an appeal in relation to the canopy,” the spokesperson said.

The Counsel representing Mr Woodhouse, Dixie Coulton said it is important Council has been made to follow proper process.

“If Council were to appeal, subject to instructions, Mr Woodhouse would be well advised to consider his right to cross appeal, the grounds of which would be very strong,” she said.

“The court has found the Council must submit a DA for the canopy. The question of the merit of the canopy is another matter entirely.”

City of Sydney Councillor Angela Vithoulkas said the impact of the construction and the heritage value of the gardens should be considered.

“The as a result of extensive consultation, the majority of the local community overwhelmingly responded that they did not want an expanded children’s playground, but they wanted the existing playground to be improved with better equipment and surfaces,” she said.

“What has happened is an expanded playground, some 400 per cent larger, despite evidence from the latest census that children numbers are declining in the area.

“There is also a real risk to the beautiful established trees in the park by having excavation and constructions so close to their base. If the playground was a little smaller, the historic trees have a better chance of survival.”

Paul Wagner, Co-Convenor of the Friends of Fitzroy Gardens, said the toilets underneath Kings Cross Police Station were also a glaring problem.

“The toilets were inoperable for 48 days recently, which included the period of the International Fleet Review, based at Garden Island,” he said. “Although three portaloos were sited in Fitzroy Gardens during this time, the portaloos were smelly and possibly a health hazard.”

The Council spokesperson agreed that the toilets had been in a state of disrepair and said they had needed structural repair due to constant use.

“On October 16, plumbers completed all the necessary pump works and the Exceloos are now open again at Kings Cross,” the spokesperson said.