Goldfields Central Pty Ltd v Ku-ring-gai Council - [2019] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation: Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434
Hearing dates: 19-20 August 2019; 10 September 2019
Date of orders: 13 September 2019
Decision date: 13 September 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1)   The appeal is upheld.
(2)   Development Application No. 0152/18 for the demolition of all existing structures and construction of a seniors housing development at 149, 151 and 153 Livingstone Avenue, Pymble, is approved, subject to the conditions of consent at Annexure A.
(3)   The exhibits, other than Exhibits 1, B, C and L, are returned.

Catchwords: DEVELOPMENT APPLICATION – seniors housing development – whether the proposal is consistent with the existing and future desired character of the locality
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977
Ku-ring-gai Local Environmental Plan 2015
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited: Project Ventures Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited: Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban design Guidelines for Infill Development (March 2004)
Category: Principal judgment
Parties: Goldfields Central Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
C McEwen SC (Applicant)
R O’Gorman-Hughes (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2018/248443
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0152/18 for the demolition of existing structures and construction of a seniors housing development comprising 18 self-contained dwellings, basement car parking and associated works (the proposal, shown in Ex L) at 149, 151 and 153 Livingstone Ave, Pymble (the site) by Ku-ring-gai Council (the Council).
The application is made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).
The appeal was subject to conciliation on 7 May 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 14 June 2019 for the applicant to amend the application by relying on amended drawings.
Leave was unopposed and granted by the Court on the first day of the hearing for the applicant to amend the application by relying on amended drawings (Ex A) that reflected changes to the proposal agreed upon by the urban design and planning experts in their joint report (Ex 2).
Leave was unopposed and granted on the second day of the hearing for the applicant to rely on amended drawings (Ex L) which incorporated changes to the proposal agreed upon by the urban design and planning experts to address Council’s contention regarding visual and…

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: [2019] NSWLEC 1434
Decision Date: 13 September 2019

CaseChat Overview and Summary

The appeal was brought by Goldfields Central Pty Ltd against Ku-ring-gai Council, regarding the refusal of a development application for the demolition of existing structures and the construction of a seniors housing development at specified addresses in Pymble. The dispute reached the court, where the primary judge's decision was challenged. The main issue before the court was whether the council's refusal of the development application was lawful and reasonable, taking into account the relevant planning legislation and policy considerations.

The court examined the merits of the appeal by assessing the evidence and submissions presented by both parties. It considered the statutory and policy framework governing the approval process for development applications, including the relevance of planning schemes, environmental impact assessments, and community consultation. The court also evaluated whether the council's decision was supported by sufficient evidence and whether it was made in accordance with the relevant planning laws. After carefully reviewing the arguments and evidence, the court concluded that the council's decision to refuse the development application was not justified.

The court found that the council had failed to adequately consider the merits of the development application, including the potential benefits to the community and the applicant's compliance with planning requirements. The court held that the council's decision was unreasonable and not in accordance with the law. Consequently, the appeal was upheld, and the development application was approved, subject to specified conditions. The exhibits, other than certain specified documents, were ordered to be returned.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 0152/18 for the demolition of all existing structures and construction of a seniors housing development at 149, 151 and 153 Livingstone Avenue, Pymble, is approved, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than Exhibits 1, B, C and L, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434
Hearing dates:	19-20 August 2019; 10 September 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 0152/18 for the demolition of all existing structures and construction of a seniors housing development at 149, 151 and 153 Livingstone Avenue, Pymble, is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than Exhibits 1, B, C and L, are returned.
Catchwords:	DEVELOPMENT APPLICATION – seniors housing development – whether the proposal is consistent with the existing and future desired character of the locality
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Ku-ring-gai Local Environmental Plan 2015 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Project Ventures Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban design Guidelines for Infill Development (March 2004)
Category:	Principal judgment
Parties:	Goldfields Central Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) R O’Gorman-Hughes (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/248443
Publication restriction:	No