Q & R Developments Pty Ltd v Sutherland Shire Council - [2001] NSWLEC 250

Reported Decision: 117 LGERA 438

Land and Environment Court

of New South Wales

CITATION: Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250

PARTIES:
APPLICANT
Q & R Developments Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10301 of 2001

CORAM: Pearlman J

KEY ISSUES: Question of Law :- preliminary question of law - whether SEPP 5 applies to land - savings and transitional provision - special uses - dwelling houses

LEGISLATION CITED: Interpretation Act 1987 s 30, s 34
State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability cl 4
Sutherland Shire Local Environmental Plan 1993

CASES CITED: Bardetta and Anor v Baulkham Hills Shire Council [2001] NSWLEC 164;
Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61;
Michael Realty Pty Ltd v Carr and Anor (1975) 2 NSWLR 812;
T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152;
Warringah Shire Council v Raffles and Anor (1978) 38 LGRA 306

DATES OF HEARING: 18/09/2001

DATE OF JUDGMENT:
11/15/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr I J Hemmings (Barrister)
SOLICITORS
Heidtman & Co
RESPONDENT
Mr J A Cole (Solicitor)
SOLICITORS
Sutherland Shire Council

JUDGMENT:

IN THE LAND AND 10301 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 15 November 2001

Q & R DEVELOPMENTS PTY LTD

Applicant

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. By notice of motion the respondent, Sutherland Shire Council (“the council”), raises the following preliminary questions of law:

(a) Whether land zoned 4(a) Industrial pursuant to Sutherland Shire Local Environmental Plan 1993 is capable of permitting development within the meaning of clause 4(1)(b)(iv) of State Environmental Planning Policy No 5.
(b) If the answer to Question 1 is no, whether the proposed development by the Applicant of Lot 2 DP 234622 known as 2 - 28 Alexander Avenue Taren Point for the purposes of a development pursuant to SEPP 5 is prohibited.

Background

2. Q & R Developments Pty Ltd (“the applicant”) seeks development consent for the construction and use of a retirement village. The applicant’s development application was lodged pursuant to State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (“SEPP 5”).

3. The land to which the development application relates is 2 – 28 Alexander Avenue, Taren Point (“the site”). Under the Sutherland Shire Local Environmental Plan 1993 (“LEP 1993”), which applies to this development application by virtue of the savings and transitional provisions of the Sutherland Shire Local Environmental Plan 2000, the land is zoned 4(a) General Industrial.

4. In the 4(a) General Industrial zone, no development is permissible without development consent. The zoning table provides a list of specified development which is permissible with development consent, but this list does not include development in the nature of a retirement village (which, as I have said, is the development for which the applicant seeks consent). All other development is prohibited.

5. However, the…

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: [2001] NSWLEC 250
Decision Date: 11/15/2001

CaseChat Overview and Summary

Q & R Developments Pty Ltd sought development consent from the Sutherland Shire Council for the construction of a retirement village on a site located at 2-28 Alexander Avenue, Taren Point. The site was zoned 4(a) General Industrial under the Sutherland Shire Local Environmental Plan 1993, which required development consent for any proposed development on the site. The applicant sought to rely on the State Environmental Planning Policy No 5, which aimed to facilitate the development of housing for older people or people with a disability. The key legal issues revolved around whether the land in question was eligible for development under the SEPP 5, and if the proposed development was prohibited under the Local Environmental Plan.

The court determined that the 1998 version of clause 4 of SEPP 5 applied to the applicant's development application, as it was lodged before the 2000 amendment. The court found that the site in question was eligible for development under SEPP 5, as it allowed for development for the purpose of "places of public worship," which included churches, and the site permitted such development under the Local Environmental Plan. The court also concluded that, even under the 2000 version of SEPP 5, the site would still be eligible for development as it allowed for development for purposes identified in respect of land zoned for special uses, including churches. Additionally, the site permitted development for the purpose of "dwelling-houses," which fell within the scope of SEPP 5.

The court answered the preliminary questions of law in the affirmative, stating that the site was capable of permitting development under SEPP 5 and that the proposed development was not prohibited. The class 1 appeal would proceed to hearing based on the court's answers to the preliminary questions of law. The court reserved the question of costs and instructed that the exhibits be returned.

Orders