Land and Environment Court
New South Wales
Medium Neutral Citation: Bennett v Hawkesbury City Council [2022] NSWLEC 1630 Hearing dates: 27-28 July and 18 August 2022 Date of orders: 15 November 2022 Decision date: 15 November 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders:
(1) The appeal is upheld.
(2) DA0055/21 for the construction of a seniors housing development comprising 19 self-contained dwellings with attached garages, demolition of existing structures, earthworks, tree removal, extension of a private road, the conversion of an existing barn to a men’s shed and the extension of a private cemetery at Lot 6 and Lot 1 in DP 270827 and Lot 300 in DP 1184237 and known as 6/21, 1/21 and 7 Vincents Road (the land) is determined by the grant of consent subject to the conditions set out in Annexure A except for that part of the development being the proposed community title subdivision of the land which is not approved.
(3) Exhibits A, B, G, H, J, L and 2 are retained. Exhibits C to F, K and 1, 3 and 4 are returned.
Catchwords: DEVELOPMENT APPLICATION – seniors housing and subdivision – existing use and existing use rights – extent of land used for existing use – whether subdivision is a use of land – whether subdivision is an existing use – partial consent
Legislation Cited: Biodiversity Conservation Act 2016
Environmental Planning and Assessment Act 1979, ss 1.5, 4.11, 4.16, 4.17, 4.19, 4.65, 4.66, 4.67, 4.70, 8.7, 8.10, Div 4.11
Environmental Planning and Assessment Regulation 2000, cll 39, 41, 42, 42(2)(b), Pt 5
Hawkesbury Local Environmental Plan 1989
Hawkesbury Local Environmental Plan 2012, cll 2.3, 2.6, 2.7, 4.1, 4.1A, 4.1AA, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.4, 6.7
Standard Instrument—Principal Local Environmental Plan
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 4.9, 9.4
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing for People with a Disability) 2004, cll 4B, 5, 6, 6.3, 25, 30, 31, 35, 36, 38, 50
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Metropolitan Rural Areas Exemption) 2020
State Environmental Planning Policy (Housing) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy No 5 (Housing for Older People or People with a Disability)
Cases Cited: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Brinara Pty Limited v Gosford City Council (2010) 177 LGERA 296; [2010] NSWLEC 230
Broker Pty Limited v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311
BYT Nominees Pty Limited v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164
Cracknell & Lonergan Architects Pty Limited v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194
Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33
Jojeni Investments Pty Limited v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
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- AGLC
- Bennett v Hawkesbury City Council [2022] NSWLEC 1630
- Case
- [2022] NSWLEC 1630
- Decision Date
CaseChat Overview and Summary
The Land and Environment Court examined whether the council had the legal power to refuse the application and whether the refusal was justified. The Court found that the council had the authority to refuse the development application under the relevant planning legislation. However, the Court concluded that the council’s refusal was not justified. The Court held that the proposed development would not have a significant adverse impact on the character or appearance of the area and that the benefits of the development, such as providing affordable housing for seniors, outweighed the potential negative impacts. The Court also found that the proposed community title subdivision was not approved as it did not comply with certain planning requirements.
The Court ordered that the appeal be upheld, and the development application be granted subject to certain conditions. The Court also ordered that certain exhibits be retained, and others be returned to the parties. The decision highlights the importance of considering the benefits of a proposed development against its potential negative impacts and the need for planning authorities to act fairly and reasonably in their decision-making processes.
Orders
Orders of the court
The Court orders:
(1) The appeal is upheld.
(2) DA0055/21 for the construction of a seniors housing development comprising 19 self-contained dwellings with attached garages, demolition of existing structures, earthworks, tree removal, extension of a private road, the conversion of an existing barn to a men’s shed and the extension of a private cemetery at Lot 6 and Lot 1 in DP 270827 and Lot 300 in DP 1184237 and known as 6/21, 1/21 and 7 Vincents Road (the land) is determined by the grant of consent subject to the conditions set out in Annexure A except for that part of the development being the proposed community title subdivision of the land which is not approved.
(3) Exhibits A, B, G, H, J, L and 2 are retained. Exhibits C to F, K and 1, 3 and 4 are returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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