Chappelow v Sutherland Shire Council - [2010] NSWLEC 1294

Land and Environment Court

of New South Wales

CITATION: Chappelow & Anor v Sutherland Shire Council [2010] NSWLEC 1294

PARTIES:
APPLICANTS
Garrie Chappelow
Julie Chappelow
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10164 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Failure to issure Building Certificate (S149D); Whether structure characterised as a "boatshed" and permissible, notional merit assessment; visual impacts; neighbourhood impacts.

LEGISLATION CITED: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Sutherland Shire Development Control Plan 2006
Sutherland Shire Local Environmental Plan 2006
State Environmental Planning Policy No 71 – Coastal Protection
NSW Coastal Policy 1997

CASES CITED: Chappelow v Sutherland Shire Council [2005] NSWLEC 56
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114
Ireland v Cessnock City Council [1999] NSWLEC 153
Ireland v Cessnock City Council [1999] NSWLEC 250
Kouflidis v City of Salisbury (1982) 29 SASR 321
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189

DATES OF HEARING: 9 September 2010

DATE OF JUDGMENT:
3 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Fraser (barrister)
SOLICITOR
MCW Lawyers
REPONDENT
Mr J Johnson (barrister)
SOLICITOR
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

DATE 3 November 2010

Appeal No 10164 of 2010 G & J Chappelow v Sutherland Shire Council
JUDGMENT

1 This appeal was lodged against council’s refusal to issue a Building Certificate (BC) in respect of unauthorised works constructed on a waterfront lot at 2B Bayview Road, Burraneer. The application for the BC particularised the works as:

“Stone & masonry wall, open garden and BBQ area, roof over shower & toilet, storage and pool equipment shed.”

2 However, during the course of the appeal the applicant agreed to undertake certain modifications so that the shed could be characterised as a boatshed.

3 The works follow a development consent granted by the Court in February 2005 (Chappelow v Sutherland Shire Council [2005] NSWLEC 56). The consent allowed a 2 – lot subdivision, which created the subject Lot 2. It also allowed the construction of a new dwelling on this Lot 2 and alterations to the existing dwelling situated on the lot.

4 Apparently the original site contained an existing boatshed, boat port and sliprails located in the southwest corner of the site, close to where the unauthorised structures, the subject of the BC application are located.

5 Condition 4 of the consent required the demolition of the existing boatshed, together with the existing boat port and sliprails located below the Mean High Water Mark, prior to the occupation of the dwelling on proposed Lot 2.

6 Condition 27 required a detailed landscape plan to be prepared indicating indigenous tree and shrub screen planting along the site's western boundary at minimum 3m intervals to enhance the privacy of the adjoining properties prior to the issue of an occupation certificate. This planting was be of a type that will achieve a minimum…

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: [2010] NSWLEC 1294
Decision Date: 3 November 2010

CaseChat Overview and Summary

The appeal was brought by the applicants, Garrie Chappelow and Julie Chappelow, against the Sutherland Shire Council's refusal to issue a Building Certificate (BC) for unauthorised works constructed on a waterfront lot at 2B Bayview Road, Burraneer. The applicants sought a BC for a storage shed, open garden, BBQ area, roof over a shower and toilet, and a storage and pool equipment shed. The unauthorised works followed a development consent granted by the Court in February 2005, which allowed a 2-lot subdivision and the construction of a new dwelling on Lot 2. The council contended that the unauthorised works were prohibited under the Sutherland Shire Local Environmental Plan 2006 (SSLEP), had an adverse visual impact, and impacted the landscape area. The applicants argued that the unauthorised works should be characterised as a boatshed, which is permissible with consent.

The court found that the unauthorised works were not characterised as a boatshed and were therefore prohibited below the Foreshore Building Line (FBL). The court concluded that the primary purpose of the land use was as a general storage shed, which included partial use for storage of a boat and ancillary storage and facilities for the nearby pool and entertaining area. The court also found that the unauthorised works had an unacceptable visual impact and reduced the landscaped area below the FBL. The court dismissed the appeal and refused the application for a Building Certificate to regularise the unauthorised works. The court ordered that the exhibits be returned except for 2, 3, 5, A, and B.

Orders