EZRA 1 Pty Ltd v Georges River Council [2019] NSWLEC 1275

EZRA 1 Pty Ltd v Georges River Council [2019] NSWLEC 1275

Consent could not be granted because the proposed development failed to demonstrate adequate regard to the accessibility principle in cl 38 of the SEPP HSPD: access from the site to the Hillcrest Nursing Home bus stop was not shown to be obvious and safe, no practical or certain pedestrian refuge was established, and no suitable access pathway under cl 26(4) was provided. In any event, the cl 4.6 written request did not adequately address why compliance with cl 26 was unreasonable or unnecessary, including because it imposed an ongoing financial and logistical burden on a small number of residents, did not address pedestrian access to the proposed bus stop, and did not consider a bus...

Jurisdiction
Australia
Judgment Date
19 June 2019
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application Da2018/0071 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Appeal Against Deemed Refusal' 'in Fill Self Care Housing' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004' 'location and Access to Facilities' 'clause 4.6 Written Request to Vary Development Standard' 'obvious and Safe Pedestrian Links' 'suitable Access Pathway']
['planning and Environment Law' 'development Consent' 'seniors Housing'] ['development Appeal Against Deemed Refusal' 'in Fill Self Care Housing' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004' 'location and Access to Facilities' 'clause 4.6 Written Request to Vary Development Standard' 'obvious and Safe Pedestrian Links' 'suitable Access Pathway']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application Da2018/0071 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development demonstrated adequate regard to providing obvious and safe access to transport and facilities in accordance with Part 3 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.' 'Whether access to the relevant bus stop complied with cl 38 and with the suitable access pathway requirement in cl 26(2)(b)(i) and cl 26(4) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.' 'Whether the written request to contravene cl 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 adequately addressed cl 4.6 of the Kogarah Local Environmental Plan 2012.' 'Whether adequate landscaping and information had been provided, including a BCA report and gross floor area calculation.']

Ratio Decidendi

Consent could not be granted because the proposed development failed to demonstrate adequate regard to the accessibility principle in cl 38 of the SEPP HSPD: access from the site to the Hillcrest Nursing Home bus stop was not shown to be obvious and safe, no practical or certain pedestrian refuge was established, and no suitable access pathway under cl 26(4) was provided. In any event, the cl 4.6 written request did not adequately address why compliance with cl 26 was unreasonable or unnecessary, including because it imposed an ongoing financial and logistical burden on a small number of residents, did not address pedestrian access to the proposed bus stop, and did not consider a bus...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit E and Exhibit N.' "The Applicant is to pay Council's costs thrown away as a result of the Applicant amending the development application, as agreed or assessed." 'The...