Druitts Developments Pty Ltd v Gosford City Council - [2001] NSWLEC 96

Reported Decision: 114 LGERA 61

Land and Environment Court

of New South Wales

CITATION: Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96

PARTIES:
APPLICANT:
Druitts Developments Pty Ltd
RESPONDENT:
Gosford City Council

FILE NUMBER(S): 10075 of 2001

CORAM: Bignold J

KEY ISSUES: Development Application :- Determination of preliminary questions - (i) Is development site land that is excluded from application of SEPP No 5?
(ii) Does SEPP No 5 apply to development application in its original or amended version?
(iii) Does proposal involve more than two storeys

LEGISLATION CITED: State Environmental Planning Policy No 5

CASES CITED: Dainford Ltd v Smith (1985) 155 CLR 342 at 348;
Franklins Limited v Penrith City Council (1999) NSWCA 134;
Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78LGERA 67;
Leichhardt Municipal council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29;
MLC Properties v Camden Council (1997) 96 LGERA 52;
Randwick Municipal Council v Janez Constructions Pty Ltd (1976) 35 LGRA 70;
Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630;
Schroders Australia Property Management Ltd v Shoalhaven Council (2001) NSWCA 74

DATES OF HEARING: 15/05/01

DATE OF JUDGMENT:
05/16/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Webster, Barrister
SOLICITORS
Taperell Rutledge
RESPONDENT:
Mr A J J Thompson, Barrister
SOLICITORS
P J Donnellan & Co

JUDGMENT:

IN THE LAND AND

Matter No. 10075 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

16 May 2001

DRUITTS DEVELOPMENTS PTY LTD

Applicant

GOSFORD CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. At the outset of the hearing of these class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 against the Council’s deemed refusal of the Applicant’s development application for the development of land known as Nos 5 and 7 Ficus Ave, Avoca (the development site) the parties have asked the Court to determine three preliminary questions. These questions are as follows:
(i.) Whether the development site is land included in Schedule 1 to State Environmental Planning Policy No 5—Housing for Older People or People with a Disability (SEPP No 5).
(ii.) Whether the Applicant’s development application (the subject of the present proceedings) is to be determined according to the terms of SEPP No 5 as currently in force or as they were in force immediately before their amendment on 1 December 2000 by virtue of the coming into force of SEPP No 5 (Amendment No 1).
(iii.) Whether the proposed development contains more than “two storeys in height” within the meaning of cl 13(2)(b) of SEPP No 5.

2. The only relevant evidence adduced in respect of the three questions is documentary. This is all that is necessary except for the first question where the parties agree that there will be the need for further evidence depending upon my adjudication upon the question which, at this stage is necessarily limited to determining the proper interpretive approach to Schedule 1 to SEPP No 5. Because of the…

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: [2001] NSWLEC 96
Decision Date: 05/16/2001

CaseChat Overview and Summary

Druitts Developments Pty Ltd sought approval from Gosford City Council for the development of land at Nos 5 and 7 Ficus Ave, Avoca. The Council's deemed refusal of the development application led to an appeal to the Land and Environment Court of New South Wales. The Court was asked to determine three preliminary questions regarding the application of State Environmental Planning Policy No 5 (SEPP No 5) to the development site. The first question was whether the development site was excluded from the application of SEPP No 5 as "environmentally sensitive land." The second question was whether the development application should be assessed under the original or amended version of SEPP No 5. The third question was whether the proposed development involved more than two storeys.

Bignold J addressed each question in turn. Regarding the first question, the Court found that the development site was indeed environmentally sensitive land under SEPP No 5. The objectives of the designated zone, which included protection from coastal erosion and storms, aligned with the descriptions of environmentally sensitive land in Schedule 1 to SEPP No 5. The Court held that it was legitimate to use extrinsic facts to identify the relevant land as long as the result was sufficiently certain.

On the second question, the Court held that the development application should be assessed under the amended version of SEPP No 5, as there was no transitional provision in the original policy that would have kept it in effect for applications made before the amendment's commencement.

For the third question, the Court concluded that the proposed development did not involve more than two storeys. The building undercroft below the residential units in the northern section did not constitute a storey, as it was not a structural feature of the building. Therefore, the proposed development complied with the height restrictions under SEPP No 5.

Orders