De Stoop v Ku-ring-gai Council - [2009] NSWLEC 28

Land and Environment Court

of New South Wales

CITATION: De Stoop v Ku-ring-gai Council [2009] NSWLEC 28
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Lindy de Stoop
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10352 of 2008

CORAM: Sheahan J

KEY ISSUES: QUESTION OF LAW :- Preliminary question arising in Class 1 appeal; construction of provisions in local and State instruments; is a SEPP 1 objection required

LEGISLATION CITED: Ku-ring-gai Local Environmental Plan 194
Ku-ring-gai Local Environmental Plan 200
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy 1
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

CASES CITED: Friends of Pryor Park Incorporated v Ryde Council & Anor [1995] NSWLEC 160
Keay & Anor v Wollongong City Council [2008] NSWLEC 243
Matic v Mid-Western Regional Council [2008] NSWLEC 113
North Sydney Council v Phillip Perrie and Associates Pty Limited [1995] NSWLEC 115
T C Punnett & Associates Pty Ltd v Warringah Council [2001] NSWLEC 152, (2001) 115 LGERA 314

DATES OF HEARING: 27 October 2008

DATE OF JUDGMENT:
16 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan
SOLICITORS
Pike Pike & Fenwick
RESPONDENT
Mr J Ayling SC with Mr A Pickles
SOLICITORS
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

16 March 2009

10352 of 2008 De Stoop v Ku-ring-gai Council
JUDGMENT

Introduction

1 His Honour: These Class 1 proceedings involve a development proposed for 1574-1578 Pacific Highway, Wahroonga in respect of which Council has refused Development Application 652/07.

2 The appeal was commenced on 11 April 2008, and a Question of Law has arisen for preliminary determination, in the following terms:

Whether in the context of sub-clause 40(4) of SEPP (Housing for Seniors of (sic) People with a Disability) 2004, residential flat buildings are not permitted on the land known as 1578 Pacific Highway, which is zoned 2(c2) Residential

Background

3 The parties have agreed on a Statement of Facts, filed on 22 October 2008, the pertinent contents of which may be summarised as follows:

4 The land at 1574-1576 Pacific Highway is zoned 2(c) “Residential” under the Ku-ring-gai Planning Scheme Ordinance (“KPSO”). In the zoning table to that zone, column 2 contains exempt development, column 3 contains the development that may be carried out only with development consent and column 4 contains prohibited development. Any development not specified in columns 2 or 4 is taken to fall into column 3. “Residential flat buildings” are listed in column 4 in the Residential (c) zone.

5 No.1578 Pacific Highway is zoned 2(c2) “Residential” under KPSO. In the zoning table to that zone, permissible development other than exempt development is listed in column 3, and all other development is prohibited development in column 4. “Residential flat buildings” are not listed in column 3, but “Apartment conversions” are.

6 “Residential flat building” is defined in…

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: [2009] NSWLEC 28
Decision Date: 16 March 2009

CaseChat Overview and Summary

Lindy de Stoop has appealed against a decision by Ku-ring-gai Council to refuse her application for development consent in relation to a proposed multi-storey residential flat building at 1574-1578 Pacific Highway, Wahroonga. The primary issue in the appeal is whether the proposed development on Lot A (1578 Pacific Highway) is subject to the development standards in clause 40 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the "SEPP"). The Court held that the proposed development on Lot A is subject to the development standards in clause 40 of the SEPP. As such, a SEPP 1 objection is required.

The Land and Environment Court held that the term "residential flat building" in the SEPP should be construed differently from its use in clause 4 of the Ku-ring-gai Planning Scheme Ordinance (the "KPSO"). While the KPSO defines "residential flat building" as a building or group of buildings containing two or more flats, the Court held that for the purposes of the SEPP, the term should be interpreted as referring to zones in which residential flat buildings are permissible. The Court further held that "apartment conversion" is a separate and distinct form of use, which is not a residential flat building for the purposes of the SEPP. Therefore, the development standards in clause 40 of the SEPP apply to the proposed development on Lot A.

The Court rejected the applicant's argument that an "apartment conversion" is a species of the genus "residential flat building". The Court held that the zoning table is not the only source of permissibility or prohibition, and that the object and purpose of clause 40(4) of the SEPP is to limit the scale of buildings in certain zones. The Court held that the correct view of the provisions in the KPSO and the SEPP is that only the species "apartment conversions" is permissible in the 2(c2) zone, and that the proposed development on Lot A does not comply with the development standards in clause 40(4) of the SEPP.

The Court concluded that a SEPP 1 objection is required for the proposed development on Lot A. The matter was returned to the Registrar for further case management and directions aimed at its final disposition.

Orders