Pathways Property Group Pty Ltd v Ku-ring-gai Council - [2017] NSWLEC 1486

Land and Environment Court

New South Wales

Medium Neutral Citation: Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486
Hearing dates: 10,11 July 2017
Date of orders: 05 September 2017
Decision date: 05 September 2017
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is upheld.
2. DA0298/16 for alterations and additions to an existing aged care facility known as Abbotsholme Aged Care Facility at 9-19 Greengate Road Killara is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, A and G.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing aged care facility - excessive overall building height - excessive number of storeys - excessive building height in rear of site - excessive bulk and scale - poor design outcomes - inadequate parking - impact on significance of adjacent heritage item - inadequate landscaping.
Legislation Cited: Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 2015
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited: De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Veloshin v Randwick Council [2007] NSWLEC 428
Wehbe v Pittwater Council [2007] 156 LGERA 446
Category: Principal judgment
Parties: Pathways Property Group Pty Ltd (Applicant)
Ku-ring-gai Council .(Respondent)
Representation:
Counsel:
Mr I Hemmings SC with Ms N Hammond (Applicant)
Ms M Carpenter, barrister (Respondent)
Solicitors:
Robert Napoli & Co (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2016/347670
Publication restriction: No

Judgment

COMMISSIONER: This appeal relates to the refusal of DA0298/16 for alterations and additions to an existing aged care facility known as Abbotsholme Aged Care Facility (Abbotsholme) including 16 additional beds at 9-19 Greengate Road Killara. Abbotsholme operates in conjunction with Killara Gardens, another aged care facility directly adjoining.
The proposed alterations and additions include:

demolition of the existing low pitched roof and construction of an additional floor level with a mansard style (60 degree pitch) roof,

the new floor level contains 11 private rooms and a communal lounge room and has lift and stair access to the floor below,

alterations to Level 4/5 including increased floor area to Unit 28 by reconstructing the inset portion of external wall and conversion of existing sundeck into a lounge/dining area and a sun porch,

alterations to Level 2/3 including conversion of hairdresser, servery, dining room, lounge room and office into 6 semi-self-contained units, narrow the existing entry hallway and construct a covered link between Abbotsholme and Killara Gardens, and

alterations to Level 1 to include additional excavation to create two store rooms and a stores and service area. Alterations to existing front garden of Abbotsholme including construction of new ramp to link the entry lobby to the street frontage.

The council maintains that the application should be refused for the following reasons:

excessive overall building…

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: [2017] NSWLEC 1486
Decision Date: 05 September 2017

CaseChat Overview and Summary

Pathways Property Group Pty Ltd, the appellant, brought an appeal against the Ku-ring-gai Council, the respondent, concerning the refusal of the respondent to grant approval for certain alterations and additions to an existing aged care facility. The matter was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the respondent had lawful grounds to refuse the approval of the development application, specifically DA0298/16, which sought alterations and additions to Abbotsholme Aged Care Facility.

The court examined the grounds for the respondent's refusal, focusing on the compliance with the relevant planning provisions and whether the refusal was unreasonable. It considered the arguments presented by both parties regarding the impact of the proposed development on the surrounding environment and community. The court also assessed the merits of the applicant's proposal in light of the statutory and policy framework governing the approval process.

In delivering the judgment, the court found that the respondent's refusal to approve the development application was not supported by lawful grounds and was, therefore, unreasonable. The court emphasised that the respondent had failed to provide adequate reasons for the refusal, particularly concerning the alleged impact on the surrounding area. It concluded that the proposed development was consistent with the objectives of the planning scheme and would not significantly harm the environment or community. Consequently, the appeal was upheld, and the development application was approved subject to certain conditions.

Orders

Orders of the court

1. The appeal is upheld.

2. DA0298/16 for alterations and additions to an existing aged care facility known as Abbotsholme Aged Care Facility at 9-19 Greengate Road Killara is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1, A and G.

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:	Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486
Hearing dates:	10,11 July 2017
Date of orders:	05 September 2017
Decision date:	05 September 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA0298/16 for alterations and additions to an existing aged care facility known as Abbotsholme Aged Care Facility at 9-19 Greengate Road Killara is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and G.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing aged care facility - excessive overall building height - excessive number of storeys - excessive building height in rear of site - excessive bulk and scale - poor design outcomes - inadequate parking - impact on significance of adjacent heritage item - inadequate landscaping.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council [2007] 156 LGERA 446
Category:	Principal judgment
Parties:	Pathways Property Group Pty Ltd (Applicant) Ku-ring-gai Council .(Respondent)
Representation:	Counsel: Mr I Hemmings SC with Ms N Hammond (Applicant) Ms M Carpenter, barrister (Respondent) Solicitors: Robert Napoli & Co (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2016/347670
Publication restriction:	No