McFadyen Architects Pty Limited v Kogarah Council [2006] NSWLEC 736

McFadyen Architects Pty Limited v Kogarah Council [2006] NSWLEC 736

MACAL was a not for profit organisation and, by its current residential tenancy arrangements, directly provided housing to two tenants receiving government housing subsidies. The Seniors Living SEPP did not require MACAL to have that status when the application was lodged; it was sufficient that the application could be characterised that way at the time of determination. The lease and sub-lease arrangements were lawful on the evidence, created real rights and obligations, and were not a sham. Accordingly, the application was made only by or on behalf of a community housing provider within cl 3(1) and Sch 3 item 1 of the Seniors Living SEPP.

Jurisdiction
Australia
Judgment Date
23 November 2006
Procedural Posture
Development Application Appeal Concerning Proposed Residential Aged Care Facility / Separate Determination of Question Before Hearing of Appeal
Outcome
Separate question answered yes.
Legal Topics
['development Application' 'state Environmental Planning Policy (seniors Living) 2004' 'community Housing Provider' 'seniors Housing' 'aged Care Facility' 'kogarah Local Government Area']
['planning and Environment Law'] ['development Application' 'state Environmental Planning Policy (seniors Living) 2004' 'community Housing Provider' 'seniors Housing' 'aged Care Facility' 'kogarah Local Government Area']

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Procedural Posture

Development Application Appeal Concerning Proposed Residential Aged Care Facility / Separate Determination of Question Before Hearing of Appeal

Legal Issues

  1. 1 ['Whether development application 485/05 was an application made only by or on behalf of a local government or community housing provider for the purposes of State Environmental Planning Policy (Seniors Living) 2004.' 'Whether MACAL was required to have the status of a local government or community housing provider at the time the development application was lodged, or whether current status before determination was sufficient.' 'Whether MACAL was a not for profit organisation that was a direct provider of housing to tenants receiving government housing subsidies.' "Whether MACAL's lease and sub-lease arrangements were unlawful, fragile, artificial or a sham." 'Whether the proposed development itself had to be limited to tenants receiving government housing subsidies.']

Ratio Decidendi

MACAL was a not for profit organisation and, by its current residential tenancy arrangements, directly provided housing to two tenants receiving government housing subsidies. The Seniors Living SEPP did not require MACAL to have that status when the application was lodged; it was sufficient that the application could be characterised that way at the time of determination. The lease and sub-lease arrangements were lawful on the evidence, created real rights and obligations, and were not a sham. Accordingly, the application was made only by or on behalf of a community housing provider within cl 3(1) and Sch 3 item 1 of the Seniors Living SEPP.

Court Disposition

Separate question answered yes.

Orders

  • ['The separate question posed for determination by the parties should be answered "yes".']