Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205

Land and Environment Court New South Wales

Medium Neutral Citation: Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Hearing dates: 31 October 2018; 1-2 November 2018 Date of orders: 07 May 2019 Decision date: 07 May 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders:

(1) Leave is granted to the applicant to amend the development application and to rely upon amended plans in Exhibit L. (2) The appeal is upheld. (3) Development consent is granted for Development Application DA 0418/15 to demolish structures (except dwelling at 25 Bushlands Avenue) and construct a residential aged care facility, basement car parking and landscaping works under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at Lots 2, 3 & 4 DP 578395 known as 25, 25A and 27 Bushlands Avenue, Gordon in accordance with the amended plans in Exhibit L and subject to the agreed conditions in Exhibit E (now marked and annexed as "Annexure A"). (4) The exhibits are returned apart from Exhibits 1, 7, A, E, K and L. Catchwords: DEVELOPMENT APPLICATION: State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW) – high care residential care facility – cl 26 location and access to facilities – development standard or prohibition – permissibility Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 (Cth) Interpretation Act 1987 Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Pittwater Local Environmental Plan 2014 State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 State Environmental Planning Policy No 55– Remediation of Land Threatened Species Conservation Act 1995 Cases Cited: Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2018] NSWLEC 131 Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61 Fairfax Digital Australia & New Zealand v Kaza [2018] NSWCA 77 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Georgakis v North Sydney Council (2004) 140 LGERA 379 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Sztal v Minister for Immigration (2017) 91 ALJR 936; [2017] HCA 34 Taylor v Public Service Board (1976) 137 CLR 208 Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1; [2001] NSWCA 480 Wehbe v Pittwater Council (2007) 156 LGERA 446 Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143 Wilson Parking 1992 Pty Ltd v Council of the City Of Sydney [2014] NSWLEC 12 Texts Cited: Department of Infrastructure, Planning and Natural Resources, A guide for councils and applicants – Housing for seniors or people with a disability (May 2004) Ku-ring-gai Development Control Plan Category: Principal judgment Parties: Australian Nursing Home Foundation Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: C McEwen SC with M Staunton (Applicant) J Farrell (Respondent)