Georgakis v North Sydney Council - [2004] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION: Georgakis v North Sydney Council [2004] NSWLEC 123

PARTIES: Zoi Georgakis (Appl)
North Sydney Council (Resp)

FILE NUMBER(S): 10032 of 2004

CORAM: McClellan CJ

KEY ISSUES: Development Application :- Proximity to transport service
Development standards
Prohibition on development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW)

CASES CITED: Lowy v Land and Environment Court of New South Wales & Ors (2002) 123 LGERA 179;
North Sydney Municipal Council v Mayoh [No 2] (1990) 71 LGRA;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Woollahra Municipal Council v Carr (1985) 62 LGRA

DATES OF HEARING: 11 March 2004

DATE OF JUDGMENT: 04/06/2004

LEGAL REPRESENTATIVES:

J A Ayling SC (Appl)
Pike Pike & Fenwick
M G Craig QC (Resp)
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10032/04

McCLELLAN J

TUESDAY, 6 APRIL 2004

GEORGAKIS

Applicant

NORTH SYDNEY COUNCIL

Respondent

Judgment

Introduction

1 The applicant has lodged a development application with the council seeking consent to develop land within the municipality for “Housing for Older People or People with a Disability” pursuant to State Environmental Planning Policy No 5 (“SEPP 5”). Although the council is of the opinion that there are general merit considerations which require the application to be refused, it submits that by reason of the location of the site of the proposed development relative to public transport facilities it cannot lawfully be approved. This conclusion is said to follow from cl 12(1) and (2) of SEPP 5.

2 The council has prepared a statement of issues which contains the following questions for preliminary determination:

“1. Whether, upon the proper interpretation of subclauses (1) and (2) of clause 12 of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (‘SEPP 5’), all of the facilities and services referred to paragraphs (a), (b) and (c) of subclause (1) are required to be located not more than 400m from the site of the proposed development when a transport service referred to in paragraph (b) of subclause (2) is available only at a distance greater than 400m from the site of the proposed development.

2. Whether as a matter of law it is necessary for all the required facilities and support services identified in paragraphs (a), (b), and (c) of clause 12(1) of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (‘SEPP 5’) to be within 400m of the site of the proposed development or a transport service which complies with clause 12(2)(b).

3. Whether clause 12(1) of SEPP 5 is a development standard in respect of which an objection made pursuant to State Environmental Planning Policy No 1 (‘SEPP 1’) can be made.”

3 To enable these questions to be determined the parties have provided an agreed statement of facts. That statement is in the following terms:

“1. The development for which consent is sought comprises:

(a) 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: [2004] NSWLEC 123
Decision Date: 04/06/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant Zoi Georgakis sought approval from the North Sydney Council for a development application under State Environmental Planning Policy No 5 for "Housing for Older People or People with a Disability" on property located at 20-24 Brook Street, Crows Nest. The council refused the application on the basis that the site was more than 400 metres from public transport services, and hence did not comply with the relevant policy. The applicant appealed to the court. The court had to determine whether the policy requirement that facilities and services be within 400 metres of the site or a transport service be available within 400 metres constituted an absolute prohibition on development, or a development standard subject to variation. The court found that the provision was a development standard, and therefore the council could grant consent if it was satisfied that the applicant had met all other criteria and the development standard was in the public interest. The court ordered the council to determine the application in accordance with the decision.

Orders