Radray Constructions Pty Ltd v Hornsby Council [2010] NSWLEC 1174

Radray Constructions Pty Ltd v Hornsby Council [2010] NSWLEC 1174

Although the proposed development was permissible and the relevant SEPP(SL) access and design requirements were met, the site was not suitable for the seniors living development as proposed. The development would rely on an elevated walkway to Eyles Avenue for access or evacuation during flood events, with no safe pedestrian or vehicle access to Anthony Street, and residents who may be older or have a disability could face personal safety risks and increased anxiety from floodwaters passing beneath the buildings and through the site. Consent was therefore refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
02 August 2010
Procedural Posture
Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['seniors Living Development' 'site Suitability' 'flooding and Evacuation Risk' 'watercourse Impacts' 'tree Protection' 'integrated Development']
['planning and Environment' 'development Consent' 'flood Prone Land'] ['seniors Living Development' 'site Suitability' 'flooding and Evacuation Risk' 'watercourse Impacts' 'tree Protection' 'integrated Development']

Case Brief

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Procedural Posture

Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the site was unsuitable for a seniors living development because it is subject to flooding.' 'Whether the physical constraints of the site were acceptable.' 'Whether the proposed development would have adverse impacts on the watercourse.' 'Whether the proposed development would have adverse impacts on the social environment.' 'Whether the proposed development was in the public interest.' 'Whether tree protection issues were sufficiently addressed.']

Ratio Decidendi

Although the proposed development was permissible and the relevant SEPP(SL) access and design requirements were met, the site was not suitable for the seniors living development as proposed. The development would rely on an elevated walkway to Eyles Avenue for access or evacuation during flood events, with no safe pedestrian or vehicle access to Anthony Street, and residents who may be older or have a disability could face personal safety risks and increased anxiety from floodwaters passing beneath the buildings and through the site. Consent was therefore refused and the appeal dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application No 942/2008 for approval for the demolition of two existing dwellings and construction of a Seniors Living development at 15 Eyles Avenue Epping and 15 Anthony Street Carlingford is refused.' 'The exhibits are returned except for exhibit 2.']