Havenland Pty Ltd v Blue Mountains City Council

[2000] NSWLEC 13

Land and Environment Court

of New South Wales

CITATION:	Havenland Pty Ltd v Blue Mountains City Council [2000] NSWLEC 13
PARTIES:	APPLICANT Havenland Pty Ltd RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10514 of 1983
CORAM:	Bignold J
KEY ISSUES:	Development :- Development:-Modification of development consent - conditions imposed on aged persons' housing development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96
CASES CITED:
DATES OF HEARING:	25/11/99
EX TEMPORE JUDGMENT DATE :	11/25/1999
LEGAL REPRESENTATIVES:	APPLICANT Mr Dickinson, Agent for Applicant SOLICITORS: N/A RESPONDENT Mr T Cork, Solicitor SOLICITORS: McPhee Kelshaw

JUDGMENT:

IN THE LAND AND Matter No . 10514 of 1983
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 25 November 1999

HAVENLAND PTY LIMITED
Applicant
v


BLUE MOUNTAINS CITY COUNCIL
Respondent
JUDGMENT


Bignold J:

1. By its amended Notice of Motion filed in Court today, the Applicant seeks the Court's approval to the modification of the development consent granted by the Court in 1983 for what was then six units comprising stage one of an overall aged persons' residential development comprising 40 units situate at Lalor Drive, Springwood.

2. The Court has been informed that subsequent stages of the overall development have been approved by the Council and in the approval process the conditions originally imposed by His Honour Mr Justice Perrignon have been continued or replicated. The current position is that the development comprises some 20 units with another eight under construction. The ultimate intention of the Applicant is to complete the overall development.

3. The conditions for which approval is sought to modify the original conditions are Conditions 14, 16 and 17. Condition 14 is a condition dealing with the provision of the emergency alarm system such as was commonly imposed in the early days of aged persons' housing. The Applicant proposes a modification of that system and the substitution of a new Condition 14 to provide for the proposed substitute regime.

4. Condition 16 was the condition imposed by His Honour requiring that the central amenities building to be located in the premises provide a kiosk or shop with standard commodities available for purchase by residents of the village at reasonable cost and at reasonable hours.

5. The condition went on to require the management to provide one full meal per day at reasonable cost to the residents who, because of sickness or other disability, reasonably required the meal. This condition has apparently never been fulfilled and the evidence produced to the Court today, including the statement prepared by Mr Lloyd (an owner of one of the units who has resided there for nine years) has comprehensively stated the nature of the existing facilities, the modest means of the great bulk of occupants of the village and the services that are available to the village occupants externally. I am satisfied, particularly from his statement of evidence, that the condition requiring the provision of a daily meal at reasonable cost which has never been fulfilled ought no longer be imposed upon the management having regard to the present needs and means of the residents.

6. As Mr Cork, Solicitor for Council candidly put the matter, Council's position in supporting the application is very much the result of accepting existing circumstances and involves a realistic assessment of the facts that the village already exists, the residents cannot be expected to pay any amount of money for the services that the condition would require to be fulfilled and that they are otherwise reasonably catered for in their necessities of life. I should add that Mr Cork put the submission, and it is appropriate that it be noted, that the Council's attitude to this matter would in all probability be quite different if the Court were considering afresh an application to establish a retirement village or aged persons' development on the site. However that is not the present reality. The reality is that the development has existed for many years and the present owner wishes to complete the development and it is apparent that it will cater for low income or pensioner income residents who simply cannot afford to fund the management expenses which would be involved in compliance with condition 16. Accordingly, I am satisfied on the evidence that condition 16 ought reasonably be deleted.

7. The other condition that is sought to be changed is condition 17. Here again, the Applicant proposes a substitute condition for that which exists. Again, the proposed condition streamlines the content of the obligation reducing it significantly, but the reasons that led me to conclude that the application to modify by deleting Condition 16, equally apply in this case and I have concluded that the reduced service provided `by the proposed new Condition 17 is appropriate in the circumstances of this case.

8. In reaching these conclusions, I have also had the benefit of a report prepared by Miss Melissa Watkins, the Principal Town Planner for the Council (whose report became Exhibit 1 and contains her opinion which generally is supportive of the application). In all the circumstances, I am satisfied that the modifications sought in the amended Notice of Motion filed in Court should be granted and I so grant them. The exhibits that have been tendered in support of the application shall remain on the Court file.