Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265

Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265

Although the overall average grade of Route A was 1:18.9 and satisfied the first part of cl 26(3), the pathway failed the sectional grade requirements in cl 26(3)(i), (ii) and (iii). A cl 4.6 variation was therefore required. The written request satisfactorily demonstrated that the proposed development was not inconsistent with the R2 zone objectives, that there were sufficient environmental planning grounds, and that the minor grade departures, proposed landings and bench seat, and pathway upgrades would provide a suitable access pathway enabling residents and the broader community to access public transport, services and facilities. The exception to the cl 26(3) standard was supported,...

Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Class 1 Development Application Appeal / Appeal Against Deemed Refusal; Merit Assessment of Contention 2 After Proposed Consent Orders Could Not Be Made
Outcome
The appeal was upheld and Development Application DA/1257/2016 was approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'infill Self Care Housing' 'clause 4.6 Variation' 'access Pathway' 'sepp Seniors Housing Clause 26']
['planning and Environment Law'] ['development Application' 'infill Self Care Housing' 'clause 4.6 Variation' 'access Pathway' 'sepp Seniors Housing Clause 26']

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Procedural Posture

Class 1 Development Application Appeal / Appeal Against Deemed Refusal; Merit Assessment of Contention 2 After Proposed Consent Orders Could Not Be Made

Legal Issues

  1. 1 ['Whether Route A complied with cl 26(3) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 for access to public transport by a suitable access pathway.' 'Whether a cl 4.6 written request under Hornsby Local Environmental Plan 2013 justified variation of the cl 26(3) development standard.' 'Whether the proposed development satisfied cl 26(1) and cl 26(2)(b) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.']

Ratio Decidendi

Although the overall average grade of Route A was 1:18.9 and satisfied the first part of cl 26(3), the pathway failed the sectional grade requirements in cl 26(3)(i), (ii) and (iii). A cl 4.6 variation was therefore required. The written request satisfactorily demonstrated that the proposed development was not inconsistent with the R2 zone objectives, that there were sufficient environmental planning grounds, and that the minor grade departures, proposed landings and bench seat, and pathway upgrades would provide a suitable access pathway enabling residents and the broader community to access public transport, services and facilities. The exception to the cl 26(3) standard was supported,...

Court Disposition

The appeal was upheld and Development Application DA/1257/2016 was approved subject to conditions in Annexure A.

Orders

  • ['Leave is granted to rely on amended joint expert report for access of 25 May 2018.' 'Leave is granted to rely on amended Clause 4.6 variation report of 30 May 2018.' 'The appeal is upheld.' 'Development Application DA/1257/2016 associated with Lot 1 DP 950410 and Lot 1 DP 943264, also known as 6 and 8 Malton Road,...