Symon v Hornsby Shire Council [2015] NSWLEC 1028

Symon v Hornsby Shire Council [2015] NSWLEC 1028

The proposed development did not comply with cl 26(2)(b)(i) of SEPP(SL) because the public transport bus stops were more than 400 metres from the site. Even assuming cl 26 was a development standard capable of variation under SEPP 1, the applicant did not establish that compliance with the 400 metre requirement was unreasonable or unnecessary in the circumstances of this development. The development was in-fill self-care housing with no on-site services and the closest shopping facilities were 2.3 km away; persons not using a motorised wheelchair or scooter would still have to walk more than 500 metres before obtaining shelter and access to public transport. The grounds for non-compliance...

Jurisdiction
Australia
Judgment Date
27 February 2015
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No 452/2014 / Principal Judgment After Hearing
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application' 'seniors Living Development' 'state Environmental Planning Policy No 1 Objection' 'development Standards' 'access to Public Transport and Services' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004']
['planning and Environment Law'] ['development Application' 'seniors Living Development' 'state Environmental Planning Policy No 1 Objection' 'development Standards' 'access to Public Transport and Services' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No 452/2014 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether compliance with cl 26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 was an essential requirement for permissibility or a development standard amenable to variation under State Environmental Planning Policy No 1 – Development Standards.' 'Whether the proposed seniors living development complied with cl 26(2)(b)(i) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 where the bus stops were more than 400 metres from the site.' "Whether the applicant's State Environmental Planning Policy No 1 objection to the cl 26 distance requirement was well founded and should be upheld." 'Whether granting consent despite non-compliance with cl 26 would be in the public interest and consistent with the aims of the relevant planning controls.']

Ratio Decidendi

The proposed development did not comply with cl 26(2)(b)(i) of SEPP(SL) because the public transport bus stops were more than 400 metres from the site. Even assuming cl 26 was a development standard capable of variation under SEPP 1, the applicant did not establish that compliance with the 400 metre requirement was unreasonable or unnecessary in the circumstances of this development. The development was in-fill self-care housing with no on-site services and the closest shopping facilities were 2.3 km away; persons not using a motorised wheelchair or scooter would still have to walk more than 500 metres before obtaining shelter and access to public transport. The grounds for non-compliance...

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application No 452/2014 for the demolition of two existing dwelling houses and the construction of a seniors living development on Lot 93 DP 3118 and Lot 75 DP29637 knows respectively as 20 Cherrybrook Road and 69 New Farm Road West Pennant Hills is refused.' 'The exhibits...