Dem (Aust) P/L v Pittwater C - [2005] NSWLEC 321

Land and Environment Court

of New South Wales

CITATION:
Dem (Aust) P/L v Pittwater C [2005] NSWLEC 321

PARTIES:
APPLICANT
Dem (Aust) Pty Limited
RESPONDENT
Pittwater Council

FILE NUMBER(S):
11268 of 2003

CORAM:
Bly C - Murrell C

KEY ISSUES:
Development Application :- Development for a multi unit residential development under SEPP 5 - appropriate location and amenity for housing for aged and disabled.

LEGISLATION CITED:
State Environmental Planning Policy No 5 - Housing for the Aged and Disabled (SEPP 5)
Pittwater Environmental Plan 1993
State Environmental Planning Policy No 65
Pittwater 21 Draft Local Environmental Plan
Pittwater 21 Development Control Plan
Residential Flat Design Code
Environmental Planning and Assessment Act 1979

CASES CITED:
Dem (Australia) Pty Ltd v Pittwater Council [2004] NSWCA 434

DATES OF HEARING: 29/03/2005 - 30/03/2005

DATE OF JUDGMENT:

06/16/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Bingham, solicitor
of Deacons
RESPONDENT
Mr M. Craig, QC
with Ms J. Jagot, barrister
instructed by Ms N. Tregoning, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C & Murrell C

16 June 2005

11268 of 2003 Dem (Aust) Pty Limited v Pittwater Council
JUDGMENT

1 This appeal relates to development application No NO600/03 for a multi unit residential development under State Environmental Planning Policy No 5- Housing for the Aged and Disabled (“SEPP 5”) at 18 Jubilee Avenue. Warriewood (“the proposal”). More particularly the proposal is to comprise 105 dwellings in four, three-storey residential buildings in a “U” shaped formation. Two centrally located buildings will provide community and reception facilities. A basement car park with access off Jubilee Avenue will provide 154 parking spaces for residents, visitors, staff and deliveries.

2 The site as shown on figure 1 is situated on the northeastern corner of the intersection of Jubilee Avenue and Ponderosa Parade and comprises Lot 2 in DP 1049840. It has an area of 14,890 sq m and a cross fall from north to south and east to west of approximately three metres.

3 Development in the area surrounding the site includes residential, light industrial and commercial. Residential development exists in the locality further to the north beyond Mona Vale Road and further to the east beyond Warriewood Road. The Pittwater RSL club is located close by in Mona Vale Road.

Statutory provisions

4 The site is situated in Zone No 3(e) (Office Business “E”) under Pittwater Local Environmental Plan 1993 ("the LEP"). Adjoining lands to the west, north, and east and immediately opposite to the south is also zoned 3(e). Adjoining land to the southwest and southeast is zoned Industrial 4(b). The closest residentially zoned land is to the east of Warriewood Road and to the north of Mona Vale Road.

5 The proposed development is prohibited in the 3(e) zone. However pursuant to cl 4(i)(b), SEPP 5 applies to land on which development for the purpose of dwelling-houses is permitted. In the 3(e) zone, dwelling-houses used in conjunction with commercial premises or industry and situated on the land on…

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: [2005] NSWLEC 321
Decision Date: 06/16/2005

CaseChat Overview and Summary

Dem (Aust) Pty Limited, the applicant, appealed against the Pittwater Council’s refusal of their development application for a multi-unit residential development under the State Environmental Planning Policy No 5 – Housing for the Aged and Disabled (SEPP 5) at 18 Jubilee Avenue, Warriewood. The proposal involved 105 dwellings in four three-storey residential buildings with community and reception facilities, as well as a basement car park with 154 parking spaces. The site is situated on the northeastern corner of the intersection of Jubilee Avenue and Ponderosa Parade and is zoned 3(e) (Office Business “E”) under Pittwater Local Environmental Plan 1993. The primary legal issue was whether the proposal was in an appropriate location and would provide residents with an appropriate level of amenity.

The court found that while the proposal would provide benefits to the Pittwater community, the site was unsuitable for the proposed development due to its non-residential context and the surrounding commercial and industrial land uses. The court concluded that the site was incompatible with the existing and likely future land uses and their associated impacts, such as noise and traffic. Furthermore, the location of the site for housing for the aged and disabled was fundamentally flawed, as it did not provide a comfortable fit to accommodate a SEPP 5 facility and could lead to potential and unnecessary conflicts.

Based on these findings, the court dismissed the appeal and determined that development consent should be refused for the multi-unit residential development under SEPP 5 at 18 Jubilee Avenue, Warriewood. The court also retained exhibit A.

Orders