Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2021] NSWLEC 1251

Land and Environment Court New South Wales

Medium Neutral Citation: Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2021] NSWLEC 1251 Hearing dates: 17 February 2021 Date of orders: 14 May 20221 Decision date: 14 May 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend its development application and to rely on amended plans, including amended landscape plans; (2) The appeal is upheld; (3) Development application DA/668/2018, as amended, for the demolition of existing structures and the construction of a 66 bed residential care facility and 91 dwelling seniors living development, and associated works, at 3 Quarry Road and 4 Vineys Road, Dural, is determined by the grant of consent, subject to the conditions attached at Annexure 'A'; (4) The exhibits are returned, except Exhibits A, 1 and 18. Catchwords: DEVELOPMENT APPLICATION – Seniors living development – residential care facility – whether site compatibility certificate is properly made - whether requirements of site compatibility certificate are satisfied – whether Court can reply upon site compatibility certificate to grant consent – whether the character of the proposed development is compatible with the local environment and surrounding land uses – weight to North District Plan – public interest. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15(1)a), 4.15(3A), 4.16, 8.7(1) Environmental Planning and Assessment Regulation 2000, cll 50(2A), 77 Hornby Local Environment Plan 2013, cl 2.1 Land and Environment Court Act 1979, s 56A Native Vegetation Act 2003, s 12 Roads Act 1993, s 138 Rural Fires Act, s100B State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 4, 4B, 16, 17, 24, 25, 27, 28, 30, 32, 33, 34, 40, 42, 43, 44, 48, 50, 54, 54A, 55 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development, cll 6A, 23(2), Sch 1 Cases Cited: Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Zhiva Living Dural Pty Limited v Hornsby Shire Council (2020) 242 LGERA 280; [2020] NSWCA 180 Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) (2019) 240 LGERA 203; [2019] NSWLEC 152 Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 Texts Cited: Greater Sydney Commission, North District Plan, 2018 Hornsby Development Control Plan 2013 Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy (December 2020) NSW Department of Planning and Environment, Apartment Design Guide, 2015 NSW Rural Fire Service, Planning for Bush Fire Protection: A guide for councils, planners, fire authorities and developers, 2019 Category: Principal judgment Parties: Zhiva Living Dural Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) M Wright SC (Respondent)