Land and Environment Court
New South Wales
Medium Neutral Citation: Andrew Aitchison v Sutherland Shire Council [2017] NSWLEC 1304 Hearing dates: 24 & 25 November 2016 Date of orders: 06 June 2017 Decision date: 06 June 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:
(1) The appeal is dismissed.
(2) Development consent for DA15/1594 is refused.
(3) The exhibits are returned, with the exception of Exhibit 1.Catchwords: Development Application: subdivision of land from one to two lots; dual occupancy; front and internal setbacks; weight to Sutherland Shire draft DCP.2015. Legislation Cited: Sutherland Shire Local Environment Plan 2015
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Four2Five Pty Ltd V Ashfield Council [2015] NSWLEC 1009
Frank and Susan Tomas v Ashfield Council [2016] NSWLEC 1183
Hurley v Sutherland Shire [2016] NSWLEC 1630
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] 129 LGERA 195Texts Cited: Draft Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Andrew Aitchison (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel:
A. Pickles SC (Applicant)
R. O’Gorman (Respondent)Solicitors:
Hones Lawyers (Applicant)
J. Amy, Sutherland Shire Council (Respondent)
File Number(s): 2016/163285 Publication restriction: No
Judgment
Background
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COMMISSIONER: This appeal is against the deemed refusal by Sutherland Shire Council (the Respondent) of a development application (DA15/1594) by Andrew Aitchison (the Applicant) for the subdivision of one lot at 75 Saunders Bay Road, Caringbah South (the Subject Site) into 2 lots, and the construction of 2 dual occupancy developments on each of the resultant lots for a total of 4 new dwellings. Each dwelling has 4 bedrooms and double car garage.
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The Subject Site is located on the southern side of Saunders Bay Road between Parthenia Street and Gannons Road. The site has an area of 1733.2 m² and is broadly rectangular in shape.
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The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The development application was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 27 June 2016. The conciliation process was terminated on 1 September 2016 and the appeal listed for hearing under s34C of the LEC Act.
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An inspection of the Subject Site was undertaken immediately prior to the hearing. As part of the inspection submissions were made by 5 objectors (Ms Sanger, Ms Groat. Mr Stokes, Mr Van Dam, and Mr Russo. A record of the objectors’ submissions made on-site was tendered as evidence during the hearing.
Planning context
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The EPA Act requires under s79C(1) that in determining a development application a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
the provisions of:
any environmental planning instrument, and
any proposed instrument that is or has been the subject of public consultation under this Act and that has…
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- Case
- [2017] NSWLEC 1304
- Decision Date
CaseChat Overview and Summary
The Court examined the decision-making process undertaken by the Council, including the application of relevant planning legislation and policies. It was crucial to determine whether the Council had adhered to the statutory requirements and whether its decision was rational and based on proper consideration of the relevant material. The Court also considered whether the Council's decision was disproportionate or unreasonable in the circumstances. In conducting this review, the Court assessed the evidence and submissions presented by both parties to ascertain the merits of the application and the Council's refusal.
The Court found that the Sutherland Shire Council had correctly exercised its discretion in refusing development consent. The Council's decision was based on a comprehensive assessment of the planning and environmental implications of the proposed development, and the Court found no errors of law or procedure that warranted intervention. The Court held that the Council's decision was rational, reasonable, and proportionate to the circumstances, and therefore dismissed the appeal and upheld the refusal of development consent.
Orders
Orders of the court
The Court orders:
(1) The appeal is dismissed.
(2) Development consent for DA15/1594 is refused.
(3) The exhibits are returned, with the exception of Exhibit 1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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