Gray v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gray v Sutherland Shire Council [2016] NSWLEC 1335
Hearing dates:	8 August 2016
Date of orders:	12 August 2016
Decision date:	12 August 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: boarding house
Legislation Cited:	State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Gray v Sutherland Shire Council [2016] NSWLEC 64; Gray v Sutherland Shire Council [2015] NSW LEC 1102
Texts Cited:	Sutherland Shire Housing Strategy 2012
Category:	Principal judgment
Parties:	Robert Gray (Applicant)   Sutherland Shire Council (Respondent)
Representation:	Solicitors: Mr J McKee McKees Legal Solutions (Applicant) Ms J Amy Sutherland Shire Council (Respondent)
File Number(s):	175456 of 2016

Judgment

1. This matter comes before the Court in response to the decision of Craig J, on 1 June 2016, following an appeal under s 56A of the Land and Environment Court Act 1979 (Gray v Sutherland Shire Council [2016] NSWLEC 64). The appeal overturned the Court’s refusal of Development Application No. DA13/0763 (Gray v Sutherland Shire Council [2015] NSW LEC 1102 (the original hearing) for the demolition of two existing dwellings and construction of a two storey boarding house containing 22 rooms at Nos. 58 and 60 Karimbla Road, Miranda (the site).

2. His Honour’s Orders were:

1. Appeal upheld.

2. The decision and orders of the Commissioner made on 21 April 2015 are set aside.

3. The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court.

4. The respondent must pay the appellant’s costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order.

The remitted hearing

3. The remitted hearing focussed on the social impacts of the development, the associated agreed conditions of consent and Plan of Management (POM). That is because I was satisfied, based on the agreed planning evidence in the original hearing, that there were no planning grounds on which to refuse consent.

4. My concern had been, based on the social planning expert evidence, the addition of further social housing has the potential to add negatively to the existing cumulative impact in the area including a disproportionate number of people in the locality who are socially and financially disadvantaged. The evidence before me was that this would result in detrimental social impacts in the locality and for that reason, I considered the site was not suitable for the proposed development.

5. I accordance with the decision of Craig J, the applicant’s proposed condition, through the Boarder Eligibility Requirement so the POM, that would limit occupancy of the boarding house to persons of moderate income or students attending nearby education facilities only is one that can be legally imposed and is for a planning purpose. Those on a “moderate” income would exclude persons in receipt of an income support payment from the Commonwealth Government (other than student support allowances such as Youth Allowance, AusStudy, AB Study) with no boarder to pay greater…