Hewitt v Hurstville Council [2001] NSWLEC 294

Hewitt v Hurstville Council [2001] NSWLEC 294

The Council did not establish legal error. Reading the Senior Commissioner's reasons fairly and by necessary implication, he applied the proper SEPP No 1 approach, accepted evidence that the proposal achieved reasonable access notwithstanding exceedance of the 400 metre standard, found rigid application of the standard unreasonable, and upheld the objection in its entirety, including as to the local shopping centre and adjacent bus stop. The matters considered about the nature and quality of access and the proposed footpath were relevant, and any possible deficiency concerning evidence about the return bus trip would at most suggest factual error, not legal error in a s 56A appeal.

Jurisdiction
Australia
Judgment Date
21 December 2001
Procedural Posture
Appeal Pursuant to Land and Environment Court Act 1979, S 56 a Against a Senior Commissioner's Decision Granting Development Consent Subject to Conditions / Judgment on Appeal
Outcome
Appeal dismissed; question of costs reserved.
Legal Topics
['development Application' 'sepp No 1 Objection' 'sepp No 5 Housing for Older People or People With a Disability' 'development Standards' 'access to Services and Transport' 'section 56 a Appeal']
['planning and Environment Law'] ['development Application' 'sepp No 1 Objection' 'sepp No 5 Housing for Older People or People With a Disability' 'development Standards' 'access to Services and Transport' 'section 56 a Appeal']

Case Brief

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Procedural Posture

Appeal Pursuant to Land and Environment Court Act 1979, S 56 a Against a Senior Commissioner's Decision Granting Development Consent Subject to Conditions / Judgment on Appeal

Legal Issues

  1. 1 ["Whether the Senior Commissioner erred in law in upholding the Applicant's objection pursuant to SEPP No 1 to the development standard in cl 12(2) of SEPP No 5." 'Whether the Senior Commissioner failed to identify the objectives of the development standard and consider whether compliance was unreasonable or unnecessary.' 'Whether the Senior Commissioner failed to make required findings about access to facilities, services and transport under cl 12 of SEPP No 5.' 'Whether the Senior Commissioner took irrelevant considerations into account in assessing the SEPP No 1 objection.' "Whether the Senior Commissioner's acceptance of the SEPP No 1 objection extended to both the local shopping centre and the adjacent bus stop."]

Ratio Decidendi

The Council did not establish legal error. Reading the Senior Commissioner's reasons fairly and by necessary implication, he applied the proper SEPP No 1 approach, accepted evidence that the proposal achieved reasonable access notwithstanding exceedance of the 400 metre standard, found rigid application of the standard unreasonable, and upheld the objection in its entirety, including as to the local shopping centre and adjacent bus stop. The matters considered about the nature and quality of access and the proposed footpath were relevant, and any possible deficiency concerning evidence about the return bus trip would at most suggest factual error, not legal error in a s 56A appeal.

Court Disposition

Appeal dismissed; question of costs reserved.

Orders

  • ['Appeal dismissed' 'Question of costs reserved']