Dem (Aust) P/L v Pittwater C [2005] NSWLEC 321

Dem (Aust) P/L v Pittwater C [2005] NSWLEC 321

The Court held that while SEPP 5 allows the proposed development despite zoning prohibitions, the surrounding commercial/industrial context meant the site was fundamentally unsuitable for residential development of this nature. The sensitive residential use would be incompatible with anticipated impacts from adjacent businesses, would not provide sufficient amenity, would create a potentially isolated community, and could inappropriately inhibit future employment-generating development. Thus, the application failed on the grounds of site suitability under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979.

Parties
Applicant: Dem (Aust) Pty Limited; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
16 June 2005
Procedural Posture
Development Application Appeal / Judgment on Appeal From Council Refusal
Outcome
Appeal dismissed
Legal Topics
Development Application, SEPP 5, Zoning, Amenity, Housing for Aged and Disabled, Loss of Employment Land, Suitability of Site
Planning Law Environmental Law Administrative Law Development Application SEPP 5 Zoning Amenity Housing for Aged and Disabled +2 more

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Parties

Dem (Aust) Pty Limited

Applicant

Pittwater Council

Respondent

Procedural Posture

Development Application Appeal / Judgment on Appeal From Council Refusal

Legal Issues

  1. 1 Whether the site is an appropriate location for housing for the aged and disabled under SEPP 5
  2. 2 Whether the loss of 3(e) zoned employment-generating land is significant
  3. 3 Whether the proposal provides residents with an appropriate level of amenity

Ratio Decidendi

The Court held that while SEPP 5 allows the proposed development despite zoning prohibitions, the surrounding commercial/industrial context meant the site was fundamentally unsuitable for residential development of this nature. The sensitive residential use would be incompatible with anticipated impacts from adjacent businesses, would not provide sufficient amenity, would create a potentially isolated community, and could inappropriately inhibit future employment-generating development. Thus, the application failed on the grounds of site suitability under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • Development application No NO600/03 for a multi unit residential development under State Environmental Planning Policy No 5- Housing for the Aged and Disabled at 18 Jubilee Avenue, Warriewood is determined by the refusal of development consent.