Parsanejad v Ku-ring-gai Council - [2020] NSWLEC 1130

Land and Environment Court

New South Wales

Medium Neutral Citation: Parsanejad v Ku-ring-gai Council [2020] NSWLEC 1130
Hearing dates: 19-20 February 2020
Date of orders: 18 March 2020
Decision date: 18 March 2020
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1)   The appeal is upheld.
(2)   Development consent is granted to DA/0386/18 for demolition of a single storey house, the construction of nine self-contained dwellings over one level of basement carpark under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 at 70 Junction Road, Wahroonga (Lot B DP 356612) subject to the conditions in Annexure A.
(3)   The exhibits are returned with the exception of Exhibits 1, C and L.

Catchwords: DEVELOPMENT APPLICATION – New infill seniors housing – whether the development is compatible with the locality – streetscape – whether the development satisfies the design principles – appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 2015
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX ) 2004
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited: Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434
GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383; [2003] NSWLEC 268
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91
Zammit v Inner West Council [2019] NSWLEC 1074
Texts Cited: Better Placed- An Integrated Design Policy for the Built Environment of NSW’ produced by the Government Architect of NSW
Ku-ring-gai Development Control Plan
Seniors Living Policy: Urban Design Guidelines for Infill Development, Department of Infrastructure, Planning and Natural Resources, 2004
Category: Principal judgment
Parties: Ali Parsanejad (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
G McKee (Solicitor) (Applicant)
J P Merlino (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2018/333681
Publication restriction: No

Judgment

COMMISSIONER: The Applicant seeks consent for the demolition of single storey dwelling house and the construction of nine self-contained dwellings over one level of basement parking with ancillary site and landscape works. The application is made under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). The works are proposed at 70 Junction Road, Wahroonga (Lot B DP 356612).
Following the expiration of the deemed refusal period, the Applicant filed an appeal with the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The appeal was subject to mandatory conciliation on 27 June 2019 (s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached and conciliation was terminated. The matter was dealt with as a hearing.
In response to the contentions prepared by the Respondent and the outcomes of the conciliation conference, the Applicant prepared a series of amended plans.…

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: [2020] NSWLEC 1130
Decision Date: 18 March 2020

CaseChat Overview and Summary

Parsanejad v Ku-ring-gai Council involved the applicant seeking development consent to demolish an existing house and construct nine self-contained dwellings on a property in Wahroonga. The Council refused consent, and the applicant subsequently appealed to the Land and Environment Court. The primary matter before the Court was whether the proposed development complied with the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004, and if the refusal of consent was lawful, reasonable and procedurally fair.

The court was required to determine whether the applicant's proposal met the criteria set out in the relevant planning policy and whether the Council's decision to refuse consent was justified. Key issues included the interpretation of the planning policy, the adequacy of the applicant's proposal in meeting policy objectives, and whether the Council's decision was procedurally sound. Additionally, the court considered whether the refusal of consent was unreasonable or whether there were any procedural errors in the Council's decision-making process.

The Court found that the proposed development complied with the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004. The Court held that the proposal provided sufficient housing for seniors and people with a disability and met the policy objectives. The Court also determined that the Council's decision to refuse consent was unreasonable and not procedurally fair. The Court found that the Council had failed to adequately consider the policy objectives and had not provided sufficient reasons for the refusal. The Court further held that the Council's decision was based on an incorrect interpretation of the planning policy.

Accordingly, the Court granted the appeal and ordered that development consent be granted to the applicant for the proposed development, subject to specified conditions. The exhibits were ordered to be returned with certain exceptions. This decision highlights the importance of correctly interpreting planning policies and the need for councils to provide adequate reasons for their decisions when refusing development consent.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA/0386/18 for demolition of a single storey house, the construction of nine self-contained dwellings over one level of basement carpark under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 at 70 Junction Road, Wahroonga (Lot B DP 356612) subject to the conditions in Annexure A.

(3) The exhibits are returned with the exception of Exhibits 1, C and L.

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:	Parsanejad v Ku-ring-gai Council [2020] NSWLEC 1130
Hearing dates:	19-20 February 2020
Date of orders:	18 March 2020
Decision date:	18 March 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to DA/0386/18 for demolition of a single storey house, the construction of nine self-contained dwellings over one level of basement carpark under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 at 70 Junction Road, Wahroonga (Lot B DP 356612) subject to the conditions in Annexure A. (3) The exhibits are returned with the exception of Exhibits 1, C and L.
Catchwords:	DEVELOPMENT APPLICATION – New infill seniors housing – whether the development is compatible with the locality – streetscape – whether the development satisfies the design principles – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX ) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434 GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383; [2003] NSWLEC 268 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 Zammit v Inner West Council [2019] NSWLEC 1074
Texts Cited:	Better Placed- An Integrated Design Policy for the Built Environment of NSW’ produced by the Government Architect of NSW Ku-ring-gai Development Control Plan Seniors Living Policy: Urban Design Guidelines for Infill Development, Department of Infrastructure, Planning and Natural Resources, 2004
Category:	Principal judgment
Parties:	Ali Parsanejad (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) J P Merlino (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/333681
Publication restriction:	No