Georgakis v North Sydney Council [2004] NSWLEC 123

Land and Environment Court of New South Wales

CITATION : Georgakis v North Sydney Council [2004] NSWLEC 123 PARTIES : Zoi Georgakis (Appl) North Sydney Council (Resp) FILE NUMBER(S) : 10032 of 2004 CORAM: McClellan CJ Development Application :- Proximity to transport service KEY ISSUES: Development standards Prohibition on development LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) Lowy v Land and Environment Court of New South Wales & Ors (2002) 123 LGERA 179; CASES CITED: North Sydney Municipal Council v Mayoh [No 2] (1990) 71 LGRA; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Woollahra Municipal Council v Carr (1985) 62 LGRA DATES OF HEARING: 11 March 2004 DATE OF JUDGMENT: 04/06/2004

J A Ayling SC (Appl) Pike Pike & Fenwick

LEGAL REPRESENTATIVES: M G Craig QC (Resp) Mallesons Stephen Jaques

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10032/04

McCLELLAN J

TUESDAY, 6 APRIL 2004 GEORGAKIS Applicant v NORTH SYDNEY COUNCIL Respondent Judgment

Introduction 1 The applicant has lodged a development application with the council seeking consent to develop land within the municipality for "Housing for Older People or People with a Disability" pursuant to State Environmental Planning Policy No 5 ("SEPP 5"). Although the council is of the opinion that there are general merit considerations which require the application to be refused, it submits that by reason of the location of the site of the proposed development relative to public transport facilities it cannot lawfully be approved. This conclusion is said to follow from cl 12(1) and (2) of SEPP 5. 2 The council has prepared a statement of issues which contains the following questions for preliminary determination: "1. Whether, upon the proper interpretation of subclauses (1) and (2) of clause 12 of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability ('SEPP 5'), all of the facilities and services referred to paragraphs (a), (b) and (c) of subclause (1) are required to be located not more than 400m from the site of the proposed development when a transport service referred to in paragraph (b) of subclause (2) is available only at a distance greater than 400m from the site of the proposed development. 2. Whether as a matter of law it is necessary for all the required facilities and support services identified in paragraphs (a), (b), and (c) of clause 12(1) of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability ('SEPP 5') to be within 400m of the site of the proposed development or a transport service which complies with clause 12(2)(b). 3. Whether clause 12(1) of SEPP 5 is a development standard in respect of which an objection made pursuant to State Environmental Planning Policy No 1 ('SEPP 1') can be made." 3 To enable these questions to be determined the parties have provided an agreed statement of facts. That statement is in the following terms: "1. The development for which consent is sought comprises: (a) The demolition of existing structures and the construction of a State Environmental Planning Policy No 5 ('SEPP 5') development being a two-storey building with a basement parking level; (b) The basement parking level comprises nine spaces for residents, three visitor spaces, garbage store, residential storage lockers and lift and stairway access to the building above; (c) The two-storey building comprises seven two-bedroom self-contained dwellings (apartments), consisting of four ground floor dwellings and three first floor dwellings. Each of the ground floor dwellings has a private outdoor courtyard; (d) Landscape works, plantings, landscaping, pathways, outdoor seating, and bin storage area; and (e) Strata subdivision of the development to provide seven dwelling lots with parking spaces, and common areas comprising the front and south side outdoor landscaped area and entry pathway, driveway, three visitor parking spaces, and corridors and common facilities within that building. 2. The development is proposed to be carried out on Lots 5, 6 and 7, DP 8066 known as 20-24 Brook Street, Crows Nest ('the land'). 3. The land is zoned Residential B Zone under the North Sydney Local Environmental Plan 2001 ('LEP 2001'). Pursuant to State Environmental Planning Policy No 5 ('SEPP 5') 4. With reference to subclause 12(2)(b) it is not agreed between the parties whether the nearest transport service to the facilities and services referred to in subclause 12(1) is located at a distance of more than 400 metres from the site of the proposed development. The table below sets out the respective positions of the parties. Transport Service Applicant's measurement Council's measurement a) 390m from the site to the bus route. a) 390m from the site to the street along which Route 273 bus service passes.