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

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

The description 'biodiversity' as used in the KLEP does not constitute a 'like description' of 'environment protection' or 'conservation' under Sch 1 of the SEPP, thus SEPP applies and the proposed high care facility is permissible. Clause 26 of the SEPP is a development standard (not a prohibition), and the particular needs of high care residents are met by providing required services onsite. Any non-compliance with cl 26 can be validly varied under cl 4.6 of KLEP, and the written request justifies the variation. The development demonstrates adequate regard to the heritage principles and impacts are acceptable subject to the amended plans and conditions.

Parties
Applicant: Australian Nursing Home Foundation Limited; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Appeal Class 1 / Final Judgment and Orders
Outcome
Appeal upheld; development consent granted with conditions
Legal Topics
Development Applications, Permissibility of Development, Heritage Impacts, Interpretation of Environmental Planning Instruments, Variation of Development Standards
Planning and Environment Law Development Applications Permissibility of Development Heritage Impacts Interpretation of Environmental Planning Instruments Variation of Development Standards

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Parties

Australian Nursing Home Foundation Limited

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal Class 1 / Final Judgment and Orders

Legal Issues

  1. 1 Whether the development is permissible under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP) given biodiversity mapping and 'like description' exclusions
  2. 2 Whether cl 26 of the SEPP is a development standard amenable to variation under cl 4.6 of the Ku-ring-gai Local Environmental Plan (KLEP)
  3. 3 Whether the development gives adequate regard to heritage impacts as required by SEPP and KLEP

Ratio Decidendi

The description 'biodiversity' as used in the KLEP does not constitute a 'like description' of 'environment protection' or 'conservation' under Sch 1 of the SEPP, thus SEPP applies and the proposed high care facility is permissible. Clause 26 of the SEPP is a development standard (not a prohibition), and the particular needs of high care residents are met by providing required services onsite. Any non-compliance with cl 26 can be validly varied under cl 4.6 of KLEP, and the written request justifies the variation. The development demonstrates adequate regard to the heritage principles and impacts are acceptable subject to the amended plans and conditions.

Court Disposition

Appeal upheld; development consent granted with conditions

Orders

  • Leave granted to amend the development application and rely upon amended plans in Exhibit L.
  • Appeal is upheld.