Andrew Aitchison v Sutherland Shire Council - [2017] NSWLEC 1304

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 1979
Cases 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 195
Texts 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

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.
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.
The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1304
Decision Date: 06 June 2017

CaseChat Overview and Summary

Andrew Aitchison sought judicial review of a decision made by the Sutherland Shire Council to refuse development consent for his proposed development under DA15/1594. The case was heard and determined by the Land and Environment Court of New South Wales. The primary legal issue before the Court was whether the Sutherland Shire Council had correctly exercised its discretion in refusing development consent, and whether there were any errors of law or procedure that warranted the Court intervening.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 1979
Cases 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 195
Texts 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