Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76

Land and Environment Court New South Wales

Medium Neutral Citation: Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76 Hearing dates: 19, 20, 23, 24 and 25 March 2020 Date of orders: 3 August 2020 Decision date: 03 August 2020 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [290] Catchwords: APPEAL - appeal against Commissioner's judgment on questions of law (Grounds 1 to 4 - the bushfire grounds) - whether the Commissioner prejudged bushfire matters required to be considered by virtue of cl 27(2)(h) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) (Ground 1) - in the alternative, whether the Commissioner failed to consider relevant matters required by cl 27(2)(h) of the SEPP (Ground 2) - whether the Commissioner denied the Council procedural fairness by accepting bushfire evidence from the Company only and not giving the Council the opportunity to be heard concerning it (Ground 3) - whether the Commissioner failed to give reasons for granting approval despite insufficient evidence on bushfire issues (Ground 4) - Ground 1 upheld rendering it unnecessary to determine Ground 2 - Ground 3 not established - Ground 4 upheld APPEAL - appeal against Commissioner's judgment on questions of law (Ground 5) - whether the Commissioner failed to address relevant mandated matters concerning (i) access to facilities and services vis appropriate pedestrian and public transport facilities and (ii) failed to consider relevant contextual building design matters - (i) dealt with through subsequent ground - complaint in (ii) not established - Ground 5 rejected APPEAL - appeal against Commissioner's judgment on questions of law (Ground 6) - whether the Commissioner erred in concluding he could be satisfied, on the basis of written evidence, that required services would be available to residents of the self-care units - consideration of what might constitute satisfactory written evidence - no error established - Ground 6 rejected APPEAL - appeal against Commissioner's judgment on questions of law (Ground 7) - whether the Commissioner erred in concluding that required minibuses would be available from the time the first occupants of the development took up residence - meaning of words in a condition of consent that buses be available for "the life of the development" – "life of the development" can only commence with issuing of an occupation certificate - residents not permitted to occupy prior to such a certificate - buses therefore required to be available from time first residents take up occupation - Ground 7 rejected APPEAL - appeal against Commissioner's judgment on questions of law (Ground 8) - whether the Commissioner adequately considered matters of character and contextual fit of the proposed development in its locality - whether the Commissioner inappropriately relied on the Site Compatibility Certificate in lieu of undertaking the assessment mandated by s 4.15 of the Environmental Planning and Assessment Act 1979 - no error disclosed - Ground 8 rejected APPEAL - appeal against Commissioner's judgment on questions of law (Ground 9) - whether the Commissioner misapplied test in cl 26 of the SEPP - Commissioner's conclusion based on acceptance of the evidence of the Respondent's expert town planner on the underlying objective of the clause - evidence not challenged by Council's expert - position consistent with the formulation of the underlying objective of the clause adopted the Senior Commissioner in an earlier case - this issue not pressed by Council in submissions to the Commissioner - Ground 9 rejected APPEAL - appeal against Commissioner's judgment on questions of law (Ground 10) - whether the Commissioner erred in concluding that the specific provisions of cl 43 of the SEPP ousted the general provisions of cl 26 - both clauses capable of satisfaction - cl 4.6 process in Warringah Local Environmental Plan 2011 provides mechanism for seeking to avoid compliance with the general provisions - cl 26 not ousted - Ground 10 upheld REMITTER - should the appeal be remitted or should it be dismissed - if remitted, should remitter be exclusionary - appeal should not be dismissed - appeal is against Commissioner's decision to grant consent to proposed development - approach adopted by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 appropriate to be followed and matter remitted not dismissed - finding in Ground 1 warrants exclusionary remitter COSTS - presumption that costs follow the event - Council successful in appeal but not on the majority of grounds pleaded - costs to follow the event unless Respondent seeks to be heard to propose some alternative costs order Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.15 Land and Environment Court Act 1979, ss 25 and 56A State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 14, 15, 24(2), 25(7), 26(1), 27(2), 32 to 39 and 42 to 44 State Environmental Planning Policy (Seniors Living) 2004, cll 25, 27(1), 74(1) and 75 Warringah Local Environmental Plan 2011, cl 4.6 Cases Cited: Australian Nursing Home Foundation Limited v Ku‑ring ‑gai Council [2019] NSWLEC 1205 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 2013 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Council of the City of Sydney v Base Backpackers Pty Ltd (2015) 208 LGERA 342 Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71 Gett v Tabet [2009] NSWCA 76 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Housing Commission v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Hoy v Coffs Harbour City Council [2015] NSWLEC 132 Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Manly Council v BSDI Pty Limited [2010] NSWLEC 31 Manly Council v Hortis 113 LGERA 321; [2001] NSWCA 81 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; [2006] NSWLEC 146 Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 Principal Healthcare Finance Pty Limited v Council of the City of Ryde [2016] NSWLEC 88 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Seltsam v Ghales in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Tanious v Georges River Council [2016] NSWLEC 142 Taylor v Owners Strata Plan 11564 (2014) 253 CLR 531 Tolucy Pty Ltd v Northern Beaches Council [2019] NSWLEC 1284 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35 Wentworth Securities Ltd v Jones [1980] AC 74 Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152 Category: Principal judgment Parties: Northern Beaches Council (Appellant) Tolucy Pty Ltd (Respondent) Representation: Counsel: Mr A Stafford, barrister (Appellant) Mr T Robertson SC/Ms J Walker, barrister (Respondent)