Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Hearing dates: 2 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Class 1 Before: Moore J Decision: 1 The appeal is dismissed; and 2 The Appellant is to pay the Respondent's costs as agreed or assessed. Catchwords: APPEAL - proposed additions and alterations to an aged care facility - application reliant on State Environmental Planning Policy (Housing for seniors and people with a disability) 2004 - s 56A appeal against decision of Commissioner to approve development - four grounds of appeal - Ground 1 alleges proposed development prohibited on the basis that State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 was not available to approve proposed development - Ground 1 not raised before the Commissioner - whether jurisdiction to raise on appeal - within jurisdiction - merit - Ground 1 not established - however, if Ground 1 established, proper course to remit the matter to a Commissioner as Ground 1 not necessarily a complete bar to the proposed development - Grounds 2 to 4 pleaded defects in Commissioner's reasoning to approve proposed development - no defects in Commissioner's approach - appeal dismissed COSTS - no reason why costs should not follow the event - Appellant ordered to pay Respondent's costs as agreed or assessed Legislation Cited: Civil Procedure Act 2005, s 98 Consumer, Trader and Tenancy Tribunal Act 2001, s 67(1) Ku-ring-gai Local Environmental Plan 2015, cll 2.3 and 4.6 Land and Environment Court Act 1979, s 56A Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy No 1 -Development Standards State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 2, 3, 5, 15 and 40 Uniform Civil Procedure Rules 2005, Pt 36 r 17 Cases Cited: Anderson v Director General of the Department of Environmental and Climate Change & Anor (2008) 163 LGERA 400; [2008] NSWCA 337 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Georgakis v North Sydney Council [2004] NSWLEC 123 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481; [1985] HCA 28 Veloshin v Randwick Council [2007] NSWLEC 428 Category: Principal judgment Parties: Ku-ring-gai Council (Appellant) Pathways Property Group Pty Ltd (Respondent) Representation: Counsel: Mr T Howard SC (Appellant) Mr I Hemmings SC/Ms N Hammond, barrister (Respondent)