Camperdown was approved to have a private hospital built 20 years ago. Credit: Wikimedia commons

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BY GEORGIA CLARK

A legal loophole enabling developers to proceed with developments even if consent was received decades ago has caused concern that community consultation could be bypassed.

The warning comes after a landmark decision in the Supreme Court was struck, ruling that a 20-year-old development consent received by Macquarie Health for a private hospital had not lapsed.

The landmark decision now means that Macquarie Health’s Dr Thomas Wenkart can proceed with the development of a 7-9-storey private hospital and metered-carpark in Camperdown near Royal Prince Alfred Hospital. But the million dollar project, which has been in the works since its approval in 1997, was thwarted when the Sydney Local Health District (SLHD) sought to challenge the validity of the approval in court.

However, the Supreme Court found that the developer was entitled to continue works despite the lapse of time, with the SLHD ultimately ordered to pay damages to Macquarie Health, including a portion of the prospective cost of the hospital development and forecast profits from the carpark.

City of Sydney Councillor Linda Scott is rallying for immediate legislative reform, saying that the loophole enables developers to short-circuit community consultation.

She said: “The development of this new private hospital was approved 20 years ago – and through a loophole of the NSW Planning Act the developer has been able to bypass further community consultation and legally build on the site.”

Although two decades had lapsed since the development consent was received, because $6.3m was spent on works on the site within 5 years of the consent, the Court found that the relevant requirement under the Planning Act was satisfied. But Cr Scott says that this loophole opens the door to exploitation.

Cr Scott said: “The State NSW Government should move to close this loophole immediately.”

“Members of the community have raised significant concerns with me about the impact of this development on their environment and their community, and I share those concerns.”

In their submissions to the Court, Macquarie Health argued that relevant and material works had been undertaken on the site, which meant that the development approval was still valid. But the SLHD disagreed, arguing that because the construction of the hospital had not yet been undertaken, the consent was invalid.

The Court ultimately found in favour of Macquarie Health, arguing that there was a substantial relationship between the physically commenced work and the activity to which the development consent relates, being the development of the hospital and carpark.
The consent requires a pedestrian crossing to be built in close proximity to the site and for the 960-space carpark to be operational prior to the hospital’s opening, with development work only permissible between 7am-5pm Monday-Friday, and 7am-3pm on Saturdays. But Cr Scott argues that such safeguards do not suffice.
She said: “I’m deeply concerned about the private hospital development, which includes over 900 commercial car parking spaces. The impact from the traffic and overshadowing on neighbouring Camperdown and Newtown residents will be significant – and yet no new public health services will be added to our community as a result of this development.”
“The NSW State Government must step in and protect our inner city residents from developers exploiting loopholes in the NSW Planning Act to the determent of local residents.”