Lipman Properties Pty Ltd v Warringah Council - [2010] NSWLEC 1310

Land and Environment Court

of New South Wales

CITATION: Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310

PARTIES:
APPLICANT
Lipman Properties Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 10973; 10974 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- for Seniors Living and subdivision; Threatened species - whether likely adverse impact and whether SIS required; Whether proposal consistent with desired future character of area; overdevelopment of site; draft LEP; precedent; public submissions.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Roads Act 1993 (NSW)
Rural Fires Act
Strata Schemes (Freehold Development) Act 1973
Environmental Planning and Assessment Regulation 1994
Warringah Local Environmental Plan 2000
Draft Warringah Local Environmental Plan 2009
Warringah Development Control Plan

CASES CITED: BGP Properties v Lake Macquarie City Council [2004] 138 LGERA 237
Retirement by Design v Warringah Council [2007] 153 LGERA 372
Mete v Warringabh Council [2004] 133 LGERA 420
Beacon Hill Retirement Pty Ltd v Warringah Council [2010] NSW LEC 1011
Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco [2010] NSW LEC 48
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289
Motorplex (Australia) Pty Ltd v Port stephens Council [No.2] [2007] NSWLEC 770

DATES OF HEARING: 16 - 18 June 2010
2, 8 - 9 July 2010
Updated advice received 22 and 23 December 2010

DATE OF JUDGMENT:
30 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr C J Leggat (Senior Counsel)
with Mr N Eastman (Barrister)
SOLICITOR
G P Cummins & Co
RESPONDENT
Mr J Robson (Senior Counsel)
SOLICITOR
Wilshire Webb Staunton & Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 December 2010

Appeal No’s : 10973 of 2009 and 10974 of 2009

Lipman Properties Pty Ltd -v- Warringah Council

JUDGMENT

1 The applicant in these proceedings is seeking consent for a seniors living development on land at Beacon Hill in the local government area of Warringah. The site is about 2.6 hectares, known as No 8 Lady Penrhyn Drive and No 70 Willandra Road. The aerial photographs at figures 1 and 2 show the site in its broader and narrower contexts of adjoining residential subdivisions and the bushland of the Oxford Falls Valley Locality.

2 Appeal No. 10973 of 2009 is in respect of the proposed development for 32 self-contained dwellings in groups of 4 dwellings. Associated facilities include an amenities building containing a meeting room, gym, swimming pool and recreation facilities; car parking for residents and visitors; landscape and bushfire hazard management works. The application also proposes that the land be subdivided into two Torrens title lots with the smaller lot of 2064 sq m for the existing dwelling that is to remain on the site. The larger lot of some 22,000 sq m is proposed to accommodate the housing for older people and this is proposed as a under strata title scheme. Figure 3 shows the site development plan.

3 The associated…

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: [2010] NSWLEC 1310
Decision Date: 30 December 2010

CaseChat Overview and Summary

Lipman Properties Pty Ltd (Applicant) is seeking consent for a seniors living development on land at Beacon Hill in the local government area of Warringah. The site is approximately 2.6 hectares and is situated at No 8 Lady Penrhyn Drive and No 70 Willandra Road. The site is proposed to be developed into a seniors living facility, with 32 self-contained dwellings in groups of 4, an amenities building, car parking, and landscape and bushfire hazard management works. The applicant also proposes to subdivide the land into two Torrens title lots, with the smaller lot to accommodate the existing dwelling and the larger lot to accommodate the housing for older people under a strata title scheme.

Warringah Council (Respondent) deferred the application pending receipt of additional information, including a Species Impact Statement. The applicant submitted a Species Impact Statement in December 2009 and other information, however, the application remains undetermined by the council and these proceedings are on the basis of a deemed refusal. The applicant appeals under the provisions of s 97 of the Environmental Planning and Assessment Act (EPA Act).

The Court found that the proposed development is not likely to have a significant effect on threatened species populations or ecological communities or their habitats, and a species impact statement is not required. The Court also found that the proposed development is consistent with the desired future character of the locality, provides a suitable and consistent outcome for the B2 locality, and conforms to a low intensity and low impact form of development. The Court further found that the environmental impact of the proposed development is not unreasonable, and the proposal is satisfactory. The Court granted the appeal and allowed the development application, subject to conditions.

Orders