Jamison Investments Pty Ltd v Penrith City Council [2010] NSWLEC 1194

Land and Environment Court of New South Wales

CITATION : Jamison Investments Pty Ltd v Penrith City Council [2010] NSWLEC 1194

APPLICANT Jamison Investments Pty Ltd PARTIES : RESPONDENT Penrith City Council

FILE NUMBER(S) : 10986 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- childcare centre

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sydney Regional Environmental Plan No 13- Mulgoa Valley Draft Penrith Local Environmental Plan 2008

CASES CITED: Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at [57].

DATES OF HEARING: 31 May 2010 and 1 June 2010

DATE OF JUDGMENT: 23 July 2010

APPLICANT Mr M Mantei (solicitor) of Planning Law Solutions Pty Ltd

LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser (barrister) instructed by Mr M Bullivant (solicitor)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Dixon C

23 July 2010

10986 of 2009 Jamison Investments Pty Ltd v Penrith City Council

JUDGMENT

Introduction 1 The applicant seeks approval to consolidate lots 12,13,43,44, and 45 in DP 2721 and to construct a 56-place childcare centre on the consolidated allotment also known as no 341a Littlefields Road, Mulgoa (the site). 2 The council is of the opinion that the proposed development is inconsistent with the objectives of Sydney Regional Environmental Plan No 13 Mulgoa Valley (SREP 13) and the zone within which the development is to be carried out. It contends that if the Court forms the same opinion after a consideration of the evidence then it has no power to approve this development because clause 8(3) of SREP 13 provides: "(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the objectives of the plan and of the zone within which the development is proposed to be carried out." 3 It is also council's contention that the development does not satisfy the development criteria in clause 12 of the SREP 13 or clauses 1.2(2)(d) and 6.10(3)(f) of the Draft Penrith Local environmental Plan 2008; or satisfactorily deal with the drainage issues raised by clause 6(4)(b) of Sydney Regional Environmental Plan No 20. Hawkesbury –Nepean River (No 2-1997). For those reasons the council submits the development is not suitable for the site and the Court should dismiss the appeal. 4 The applicant, however, invites the Court, based on its evidence, to form a different opinion. It contends that the development is consistent with the objectives of the plan and the zone within which it is proposed to be the carried out. It submits that the development is appropriate for this site and that development consent can and should be granted under section 97(1) of the Environmental Planning Act 1979 (the Act) 5 After a consideration of the evidence, and the relevant matters under section 79C of the Act, I have formed the opinion that the development is inconsistent with the objectives of the SREP 13 and the zone within which the development is to be carried out. Because of that opinion, clause 8(3) of the SREP 13 precludes the Court from approving this application. I also find, based on the evidence, the development does not satisfy the development criteria in clause 12 of the SREP 13 and therefore on that ground the Court should not grant development consent to this application. It is also the fact that the development is prohibited under the proposed future zoning of the land under the Draft Penrith Local Environmental Plan 2008 and therefore it is at odds with the desired future planning for the site. For all of the above reasons I have decided to dismiss the appeal.