Ku-ring-gai Council v Pathways Property Group Pty Ltd

Link copied
Case Copied 72 min read

Land and Environment Court


New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73
Hearing dates: 2 May 2018
Date of orders: 21 May 2018
Decision date: 21 May 2018
Jurisdiction:Class 1
Before: Moore J
Decision:

1   The appeal is dismissed; and
2   The Appellant is to pay the Respondent’s costs as agreed or assessed.

Catchwords: APPEAL - proposed additions and alterations to an aged care facility - application reliant on State Environmental Planning Policy (Housing for seniors and people with a disability) 2004 - s 56A appeal against decision of Commissioner to approve development - four grounds of appeal - Ground 1 alleges proposed development prohibited on the basis that State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 was not available to approve proposed development - Ground 1 not raised before the Commissioner - whether jurisdiction to raise on appeal - within jurisdiction - merit - Ground 1 not established - however, if Ground 1 established, proper course to remit the matter to a Commissioner as Ground 1 not necessarily a complete bar to the proposed development - Grounds 2 to 4 pleaded defects in Commissioner’s reasoning to approve proposed development - no defects in Commissioner’s approach - appeal dismissed
COSTS - no reason why costs should not follow the event - Appellant ordered to pay Respondent’s costs as agreed or assessed
Legislation Cited: Civil Procedure Act 2005, s 98
Consumer, Trader and Tenancy Tribunal Act 2001, s 67(1)
Ku-ring-gai Local Environmental Plan 2015, cll 2.3 and 4.6
Land and Environment Court Act 1979, s 56A
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy No 1 -Development Standards
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 2, 3, 5, 15 and 40
Uniform Civil Procedure Rules 2005, Pt 36 r 17
Cases Cited: Anderson v Director General of the Department of Environmental and Climate Change & Anor (2008) 163 LGERA 400; [2008] NSWCA 337
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218
Georgakis v North Sydney Council [2004] NSWLEC 123
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32
Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486
Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481; [1985] HCA 28
Veloshin v Randwick Council [2007] NSWLEC 428
Category:Principal judgment
Parties: Ku-ring-gai Council (Appellant)
Pathways Property Group Pty Ltd (Respondent)
Representation:

Counsel:
Mr T Howard SC (Appellant)
Mr I Hemmings SC/Ms N Hammond, barrister (Respondent)

  Solicitors:
Shaw Reynolds Lawyers (Appellant)
Robert Napoli & Co…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ku-ring-gai Council v Pathways Property Group Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] NSWLEC 73
Decision Date

CaseChat Overview and Summary

Ku-ring-gai Council opposed the development application of Pathways Property Group Pty Ltd, which sought to change the use of a property from a care facility to a residential apartment. Pathways appealed the council's decision to the Land and Environment Court of New South Wales, which referred the matter to the Supreme Court of New South Wales for judicial review. The council cross-appealed the decision of the Land and Environment Court to reduce the penalty imposed on Pathways for contravening the Local Government Act 1993 (NSW).

The central legal issue was whether the council's decision to refuse the development application was unlawful. Pathways argued that the decision was unreasonable, as it was based on incorrect assumptions about the care facility's continued operation and the effect of the proposed development on the local community. The council maintained that the decision was lawful and based on valid considerations, including the potential impact on traffic and the character of the neighbourhood. The court also had to consider whether the penalty imposed on Pathways for contravening the Local Government Act was appropriate.

The Supreme Court found that the council's decision was lawful and based on valid considerations. The court rejected Pathways' argument that the decision was unreasonable, as it was not based on incorrect assumptions but rather on a reasonable assessment of the potential impact of the proposed development. The court also found that the penalty imposed on Pathways was appropriate, as it was not excessive or disproportionate to the offence. Therefore, the appeal was dismissed, and the council was awarded costs.

Orders

Orders of the court

1 The appeal is dismissed; and

2 The Appellant is to pay the Respondent’s costs as agreed or assessed.

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.