Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152

Land and Environment Court New South Wales

Medium Neutral Citation: Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152 Hearing dates: 2 October 2019 Date of orders: 28 October 2019 Decision date: 28 October 2019 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [70] Catchwords: APPEAL - appeal against Commissioner's refusal of development application for seniors living project - appeal confined to question of law - Commissioner dismissed the development appeal on the basis of failure to satisfy a precondition set by State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (the SEPP) - matter not raised in the Council's contentions - Applicant proposed a condition of consent to satisfy requirement - Commissioner's request for further submissions did not request submissions as to whether a condition could satisfy the requirements of the SEPP - Commissioner dismissed the appeal without providing the parties with an opportunity to make submissions as to why a condition could provide a proper basis to satisfy the provision - Applicant complains of denial of procedural fairness in circumstances where, in earlier unrelated proceedings, the same Commissioner had accepted a condition of consent in near identical wording to the proposed condition to satisfy the same provision in the SEPP - procedural fairness denied to the Applicant - appeal upheld DEVELOPMENT APPLICATION - approval of the proposed development required a site compatibility certificate - without a current site compatibility certificate, the proposed development was prohibited - the proposed development had been given a site compatibility certificate but it had expired as at the date of this appeal against the Commissioner's decision - no basis upon which the Court would have power utilising s 39(2) of the Land and Environment Court Act 1979 (the Court Act) to consider whether to issue a fresh site compatibility certificate - in the absence of a current site compatibility certificate, there is no development application capable of approval - remitter to Commissioner futile - appropriate course to exercise power pursuant to s 56A(2)(b) of the Court Act to determine the proceedings by refusal of development consent - Class 1 appeal dismissed and proposed development refused development consent. Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979, ss 34, 39(2) and 56A State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Cases Cited: Dukor 24 Pty Ltd v Northern Beaches Council [2018] NSWLEC 1315 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 Zhiva Living Dural Pty Ltd v Hornsby Shire Council (No 2) [2019] NSWLEC 68 Category: Principal judgment Parties: Zhiva Living Dural Pty Limited (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: Mr J Lazarus SC (Applicant) Submitting appearance (Respondent)