Crosland v North Sydney Council - [2000] NSWLEC 165

Reported Decision: 109 LGERA 244

Land and Environment Court

of New South Wales

CITATION: Crosland v North Sydney Council [2000] NSWLEC 165

PARTIES:
APPLICANT:
Crosland
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 10435 of 2000

CORAM: Bignold J

KEY ISSUES: Question of Law :- whether proposed development permissible as a "health centre".

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED: Doyle v Newcastle City Council (1990) 71 LGRA 55;
Foote v Willoughby Municipal Council (1985) 18 Aust Planning Appeal Decisions 9;
Gilderthorpe v Sutherland [2000] NSWLEC 153;
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447;
Pittwater Municipal Council v Peterson and Warta Holdings Pty Ltd, Talbot J (unreported 6 May 1993);
Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541;
Woollahra Municipal Council v Carr (1982) 47LGRA 105

DATES OF HEARING: 20th July 2000

DATE OF JUDGMENT:
08/02/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P D McClellan QC
SOLICITORS
J P O'Neill
RESPONDENT:
Mr A Galasso, Barrister
SOLCITORS
Malleson Stephen Jacques

JUDGMENT:

IN THE LAND AND Matter No . 10435 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 2 August 2000

G B CROSLAND

Applicant

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. In pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), s 97 against the Council’s refusal of a development application, the Council has raised for preliminary determination the question whether the proposed development is a prohibited purpose of development in terms of the North Sydney Local Environmental Plan 1989 (the LEP).

2. The development application proposes the erection of a two storey building on land known as No 47 Atchinson Street, Crows Nest (the development site) to be used for two separate purposes—(i) the ground floor to be used as medical consulting rooms; and (ii) the upper floor to be used as a dwelling unassociated with the use proposed for the ground floor.

3. The question of law (reformulated to more sharply define the issue in dispute) is—

Is the medical consulting rooms component of the proposed development for a prohibited purpose of development in terms of the LEP?

B. THE RELEVANT FACTS

4. The parties have submitted an Agreed Statement of Facts (Exhibit 1)from which the following essential facts may be distilled:—
1. The development site is included in Zone No 2(c) “Residential C” in terms of the LEP.
2. According to cl 9(1) of the LEP, development within Zone No 2(c)—may be carried out without development consent (item 1), may be carried out only with development consent (item 2) and is prohibited (item 3) for the following purposes respectively:
1. Without Development Consent

Dwelling-houses; home occupations.

2. Only With Development Consent

Attached dwellings; boarding-houses; child care centres; educational establishments; home industries; hospitals; housing for aged or disabled persons; infill development; open space; places of assembly; places of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 165
Decision Date: 08/02/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Crosland, appealed against the North Sydney Council's refusal of a development application concerning a proposed two-storey building on land at 47 Atchinson Street, Crows Nest. The ground floor was proposed for use as medical consulting rooms, while the upper floor was intended for a separate dwelling. The central legal issue was whether the proposed ground floor use constituted a "health centre" under the North Sydney Local Environmental Plan 1989 (LEP), thereby qualifying as a permissible purpose of development in the Residential C zone. The Council argued that the proposed use should be categorised as "professional consulting rooms," a prohibited purpose under the LEP.

The Court examined dictionary definitions and previous case law to understand the term "health centre." The Council cited definitions suggesting a "health centre" was a welfare facility, while Crosland referred to definitions indicating it was a local headquarters of medical services. Previous cases, such as Foote v Willoughby Municipal Council and Pittwater Municipal Council v Peterson and Warta Holdings Pty Ltd, provided context, with the former holding that a mixed-use facility offering a holistic approach to medical treatment could be a "health centre." The Court concluded that the modern understanding of a "health centre" involves a place offering a variety of specialized medical services, even if limited. The Court found that the proposed development, despite being small and offering a limited range of services, qualified as a "health centre."

The Court held that the proposed development was appropriately categorised as a "health centre" and thus permissible under the LEP. The Council's argument that the sessional provision of some services disqualified the proposal was rejected, as this practice was consistent with how even large medical centres operate. The Court answered the central legal question in the negative, ruling that the medical consulting rooms component of the proposed development did not constitute a prohibited purpose of development under the LEP. Consequently, the Court ordered that the Council's refusal of the development application be set aside.

Orders