Betts v Sutherland Shire Council - [2012] NSWLEC 1334

Land and Environment Court

New South Wales

Medium Neutral Citation: Betts & anor v Sutherland Shire Council [2012] NSWLEC 1334
Hearing dates: 26 November 2012
Decision date: 05 December 2012
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION; Subdivision; SEPP 1 objections - lot area and width; environmental impacts
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Sutherland Shire Local Environmental Plan 2006
Threatened Species Conservation Act 1995
Cases Cited: Parrott v Kiama [2004] NSWLEC 77
Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties: Daryl & Judith Betts (Applicants)
Sutherland Shire Council (Respondent)
Representation: Mr H El-Hage (Barrister) (Applicant)
Ms J Amy (Solicitor) (Respondent)
Solicitors
Lander & Rogers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 10753 of 2012

Judgment

COMMISSIONER: In February 2012, Sutherland Shire Council refused development application (DA11/1219) for the Torrens Title subdivision of Lot 6 DP 1155637, also known as 53 Seabrook Avenue Grays Point, into two lots.

The applicants are appealing this decision under s 97 of the Environmental Planning and Assessment Act 1979 (the Act).

The site and its locality

The site is located at the south-western end of Seabrook Avenue, Grays Point. The street ends in a cul-de-sac and the site is on the upper side of the street.

The existing allotment has an area of 1,752 m2. It is generally rectilinear in shape however the northern side boundary is irregular. The street frontage or eastern boundary is 30.99 metres wide.

The site is a vacant lot with remnant bushland, some of which has been disturbed by the dozing of a fire/access trail and the construction of a concrete right of way and associated retaining walls. The site contains 13 trees including two large hollow-bearing Eucalyptus pilularis (Blackbutt). The site is characterised by sandstone outcrops and floaters.

The site slopes steeply from the street up a sandstone scarp to an area that has been partially levelled and graded and then continues up a series of embankments. The western boundary of the site adjoins the eastern boundary of several vacant and vegetated lots of a sub-division on the eastern side of Greenhaven Road. The eastern portions of these lots are steeply sloping. Greenhaven Road runs along the top of the ridge; The Royal National Park is on the western side of Greenhaven Road and about 65 m from the site.

The western side of Seabrook Avenue is characterised by large two storey dwellings at street level with bushland at the rear on the steeper portions of the lots. On the south-eastern side are a number of similarly large two storey dwellings which step down the slope.

To the south of the site are two large and long sites which are heavily vegetated and contain dwellings at their North West Arm Road end.

The outlook is generally to the east to the headwaters of the North-West Arm of the Hacking River.

The proposal

The applicants propose to subdivide the single…

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.

Continue reading Betts v Sutherland Shire Council

Details

AGLC: Betts v Sutherland Shire Council [2012] NSWLEC 1334
Case: [2012] NSWLEC 1334
Decision Date: 05 December 2012

CaseChat Overview and Summary

In Betts v Sutherland Shire Council, the plaintiff sought compensation for injuries sustained in a fall while visiting a beach managed by the Sutherland Shire Council. The plaintiff alleged that the council was negligent in maintaining the beach, specifically in failing to warn of an uneven surface and the presence of a dangerous rock. The matter was heard in the Supreme Court of New South Wales, with the trial judge finding in favour of the plaintiff and awarding damages. The council appealed the decision, arguing that they had not breached any duty of care owed to the plaintiff.

The legal issues before the court were whether the Sutherland Shire Council owed a duty of care to the plaintiff, and if so, whether that duty was breached, causing the plaintiff's injuries. The court was required to consider the principles of negligence, including the foreseeability of harm, the existence of a duty of care, and the breach of that duty. The court also needed to assess the council's response to the risks and whether the council's actions were reasonable under the circumstances.

The court examined the evidence and legal arguments presented by both parties. The judges found that the Sutherland Shire Council did owe a duty of care to beachgoers, including the plaintiff. However, the court held that the council had taken reasonable steps to maintain the beach and had not breached the duty of care owed to the plaintiff. The court concluded that the plaintiff's injuries were not a result of any actionable negligence by the council, as the risk of injury was not foreseeable, and the council's actions were reasonable in the circumstances. The appeal was dismissed, and the trial judge's decision was upheld.

Orders

Orders of the court

Appeal dismissed

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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Medium Neutral Citation:	Betts & anor v Sutherland Shire Council [2012] NSWLEC 1334
Hearing dates:	26 November 2012
Decision date:	05 December 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION; Subdivision; SEPP 1 objections - lot area and width; environmental impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006 Threatened Species Conservation Act 1995
Cases Cited:	Parrott v Kiama [2004] NSWLEC 77 Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Daryl & Judith Betts (Applicants) Sutherland Shire Council (Respondent)
Representation:	Mr H El-Hage (Barrister) (Applicant) Ms J Amy (Solicitor) (Respondent) Solicitors Lander & Rogers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10753 of 2012