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[2007] NSWLEC 87
Land and Environment Court (NSW)
2007-02-16
Preston CJ
Original judgment source is linked above.
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Retirement by Design Pty Limited
Warringah Council
CITATION : Retirement by Design Pty Limited v Warringah Council [2007] NSWLEC 87
DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187; Gillespies v Warringah Council (2002) 124 LGERA 147; CASES CITED: Mete v Warringah Council [2004] NSWLEC 273 ; Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443; Retirement by Design Pty Limited v Warringah Council [2006] NSWLEC 656
1 HIS HONOUR: The applicant, Retirement by Design Pty Limited, applied to Warringah Council to construct and use a retirement village at 42-44 Myoora Road, Terrey Hills. The applicant relied on State Environmental Planning Policy (Seniors Living) 2004 for the permissibility of its proposed development on that land. The Council refused consent on the basis that the Seniors Living Policy does not apply to the land. 2 The applicant appealed to this Court under s 97 of the Environmental Planning and Assessment Act 1979 (NSW). That type of appeal is assigned to class 1 of the Court's jurisdiction by s 17 of the Land and Environment Court Act 1979 (NSW). 3 The Court hearing the appeal was constituted by Commissioner Moore. Commissioner Moore determined on 19 October 2006 that the Seniors Living Policy cannot and does not apply to the land: Retirement by Design Pty Limited v Warringah Council [2006] NSWLEC 656. Commissioner Moore therefore dismissed the appeal. 4 The applicant appealed against Commissioner Moore's decision under s 56A of the Land and Environment Court Act. Such an appeal is restricted to a question of law: s 56A(1) of the Land and Environment Court Act. 5 The applicant submits that Commissioner Moore misconstrued the provisions of the Seniors Living Policy and Warringah Local Environmental Plan 2000. Misconstruction of relevant statutory provisions involves a question of law. To determine whether any misconstruction occurred, I will firstly identify the relevant statutory provisions, secondly summarise Commissioner Moore's reasons for decision, thirdly summarise the applicant's arguments and the Council's notice of contention on this s 56A appeal, and finally, analyse and determine the applicant's arguments and the Council's contention. The Seniors Living Policy and Warringah Local Environmental Plan 6 The Seniors Living Policy is an environmental planning instrument that aims to encourage the provision of housing (including residential care facilities) that will: "(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and
(2004) 136 LGERA 187
(2002) 124 LGERA 147
(2000) 109 LGERA 443