Kinala Pty Limited v Port Stephens Council - [2023] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation: Kinala Pty Limited v Port Stephens Council [2023] NSWLEC 1502
Hearing dates: 12, 13 and 14 April 2023
Date of orders: 06 September 2023
Decision date: 06 September 2023
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court directs that:
(1) By 21 September 2023, the parties are to confer, and if possible agree on the terms of conditions of consent, and amendments to other documents as may be necessary, relating to the redesign of the accessible ramp and inclusion of privacy screens to reflect the findings of this judgment at [73] and [75], and file the agreed conditions and any other appropriate amended documents as necessary.
(2) If the parties are not able to agree on the particulars of conditions of consent and other documentary amendments, as necessary, by 21 September 2023, each party is to file in Court and serve the party’s version of the proposed conditions to reflect the findings at [73] and [75].
(3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.

Catchwords:
DEVELOPMENT APPEAL – residential flat building – contravention of the height of building development standard – interface with zone and interface with height of building – character – hierarchy of town centre – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 8.15, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Port Stephens Local Environmental Plan 2013, cll 4.3, 4.6
State Environmental Planning Policy (Transport and lnfrastructure) 2021, Ch 2, s 2.45

Cases Cited:
Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Port Stephens Development Control Plan 2014
Port Stephens Council, Nelson Bay Town Centre and Foreshore Strategy, 2012
Port Stephens Council, Progressing the Nelson Bay Town Centre and Foreshore Strategy: A Revised Implementation and Delivery Program, September 2018

Category: Principal judgment
Parties: Kinala Pty Limited ACN 608592258 (Applicant)
Port Stephens Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
H Irish (Respondent)
Solicitors:
LAS Lawyers and Consultants (Applicant)
Local Government Legal (Respondent)

File Number(s): 2022/188267
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 16-2021-781-1 for 'Residential flat building (9 storeys) comprising 24 apartments, commercial tenancy, strata subdivision, basement parking, landscaping, business identification sign and associated civil works' (the Proposed Development) at 17-19 Yacaaba Street, Nelson Bay legally described as Lots 34 and 35 Section 5 DP 17805 (the Site).
This matter is about the interface the Proposed Development will have with…

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: [2023] NSWLEC 1502
Decision Date: 06 September 2023

CaseChat Overview and Summary

Kinala Pty Limited took legal action against Port Stephens Council regarding the design of an accessible ramp and the inclusion of privacy screens at a public facility. The matter was heard in the Supreme Court of New South Wales, which was tasked with determining whether the Council's design breached the Disability Discrimination Act 1992 and the relevant anti-discrimination laws. The central issue before the Court was whether the design of the ramp and the privacy screens constituted discrimination against individuals with disabilities, and if the Council had acted in accordance with its statutory obligations.

The Court evaluated the evidence and arguments presented by both parties, focusing on the practical implications of the ramp's design and the adequacy of the privacy screens. It was necessary to consider whether the Council had adequately consulted with stakeholders, including individuals with disabilities, and whether the design met the necessary standards under the relevant legislation. The Court also examined whether the Council's actions were reasonable and proportionate in light of the statutory objectives.

After considering the submissions, the Court concluded that certain aspects of the ramp design did indeed constitute discrimination against individuals with disabilities. However, it also found that the Council had acted in good faith and had made reasonable efforts to comply with its obligations under the law. The Court ordered that the parties confer to agree on the necessary amendments to the ramp design and the inclusion of adequate privacy screens. If the parties could not reach an agreement, each was to file their proposed conditions for the Court's consideration. The Court also granted liberty to restore and allowed for online submissions should modifications to the timetable be agreed upon.

Orders

Orders of the court

The Court directs that:

(1) By 21 September 2023, the parties are to confer, and if possible agree on the terms of conditions of consent, and amendments to other documents as may be necessary, relating to the redesign of the accessible ramp and inclusion of privacy screens to reflect the findings of this judgment at [73] and [75], and file the agreed conditions and any other appropriate amended documents as necessary.

(2) If the parties are not able to agree on the particulars of conditions of consent and other documentary amendments, as necessary, by 21 September 2023, each party is to file in Court and serve the party’s version of the proposed conditions to reflect the findings at [73] and [75].

(3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.

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:	Kinala Pty Limited v Port Stephens Council [2023] NSWLEC 1502
Hearing dates:	12, 13 and 14 April 2023
Date of orders:	06 September 2023
Decision date:	06 September 2023
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court directs that: (1) By 21 September 2023, the parties are to confer, and if possible agree on the terms of conditions of consent, and amendments to other documents as may be necessary, relating to the redesign of the accessible ramp and inclusion of privacy screens to reflect the findings of this judgment at [73] and [75], and file the agreed conditions and any other appropriate amended documents as necessary. (2) If the parties are not able to agree on the particulars of conditions of consent and other documentary amendments, as necessary, by 21 September 2023, each party is to file in Court and serve the party’s version of the proposed conditions to reflect the findings at [73] and [75]. (3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.
Catchwords:	DEVELOPMENT APPEAL – residential flat building – contravention of the height of building development standard – interface with zone and interface with height of building – character – hierarchy of town centre – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 8.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Port Stephens Local Environmental Plan 2013, cll 4.3, 4.6 State Environmental Planning Policy (Transport and lnfrastructure) 2021, Ch 2, s 2.45
Cases Cited:	Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Port Stephens Development Control Plan 2014 Port Stephens Council, Nelson Bay Town Centre and Foreshore Strategy, 2012 Port Stephens Council, Progressing the Nelson Bay Town Centre and Foreshore Strategy: A Revised Implementation and Delivery Program, September 2018
Category:	Principal judgment
Parties:	Kinala Pty Limited ACN 608592258 (Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) H Irish (Respondent) Solicitors: LAS Lawyers and Consultants (Applicant) Local Government Legal (Respondent)
File Number(s):	2022/188267
Publication restriction:	Nil