Dem (Aust) Pty Limited v Pittwater Council - [2004] NSWLEC 70

Land and Environment Court

of New South Wales

CITATION: DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70

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

FILE NUMBER(S): 11268 of 2003

CORAM: Lloyd J

KEY ISSUES: Planning Instruments :- State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability - appeal against deemed refusal of development application - aged person units - land is not land upon which development for the purpose of dwelling-houses is permitted - access to transport services

LEGISLATION CITED: Interpretation Act 1987 s 33
Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 31 r 2
State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability cl 4(1)(b), cl 12(1) and cl 12(2)
Pittwater Local Environmental Plan 1993

CASES CITED: Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443;
Porfiri v Ku-ring-gai Council (2003) 124 LGERA 340;
Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438;
T C Punnett and Associates Pty Ltd v Warringah Council (2001) 115 LGERA 314

DATES OF HEARING: 04/02/2004

EX TEMPORE
JUDGMENT DATE : 02/04/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J J Bingham (solicitor)
SOLICITORS:
Deacons
RESPONDENT:
Dr G A Flick SC and Ms J M Jagot (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 6 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11268 of 2003

Lloyd J

4 February 2004

DEM (AUST) PTY LIMITED

Applicant

PITTWATER COUNCIL

Respondent

EX TEMPORE JUDGMENT

HIS HONOUR:

1 The applicant has appealed against the deemed refusal of a development application to demolish existing structures and construct a development comprising 106 units and an associated basement car park, community centre and a “healthy living pavilion” on land at No. 18 Jubilee Avenue, Warriewood, pursuant to State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (“SEPP No. 5”).

2 This is the determination of three separate questions before the hearing of the appeal as permitted by Pt 31 r 2 of the Supreme Court Rules 1970, which applies in this Court by dint of Pt 6 r 1 of the Land and Environment Court Rules 1996. The three questions are as follows:

(1) Whether on a proper construction of 4(1)(b) of SEPP No. 5 the land is land upon which development for the purpose of dwelling-houses is permitted?

(2) Whether on a proper construction of sub-cll (1) and (2) of cl 12 of SEPP No. 5, the measurement required to be undertaken of the distance between transport services to the facilities and services specified in cl 12(1) and the site of the proposed development is required to be undertaken in relation to each of the residential buildings in the proposed development and found to be no more than 400 metres in each case?

(3) Whether the requirement for access in cl 12(1) of SEPP No.…

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: [2004] NSWLEC 70
Decision Date: 02/04/2004

CaseChat Overview and Summary

Dem (Aust) Pty Limited sought to appeal against the deemed refusal by Pittwater Council of a development application. The proposed development was to demolish existing structures and construct a development consisting of 106 units, a community centre, and a “healthy living pavilion.” The appeal was made pursuant to State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability. The core issues for determination were whether the land in question was suitable for the purpose of constructing dwelling-houses, whether the distance to transport services met the policy's requirements, and if the access requirement could be varied by objection under another policy.

The court first addressed whether the land was suitable for the proposed development under clause 4(1)(b) of SEPP No. 5. The applicant argued that the land, which was zoned for urban purposes, should be deemed suitable as per previous court decisions. However, the court distinguished these cases on the basis that the subject land required the dwelling-houses to be situated on the same land as commercial premises or industry, a condition not met in this case. The court concluded that the land was not suitable for the proposed development.

Secondly, the court examined whether the distance to transport services complied with the policy’s requirements under clause 12 of SEPP No. 5. The applicant contended that the distance should be measured from the site of the proposed development, while the council argued that the site referred to the entire allotment. The court found the issue to be fact-specific and could not definitively determine it without further evidence. It concluded that the site of the proposed development was not necessarily each individual building nor the entire allotment but could be a matter for the commissioner to decide.

The court certified that the preliminary questions of law were to be answered as follows: the land was not suitable for the proposed development, the distance to transport services was a matter of fact, and the third question was not required to be answered.

Orders