Chappelow v Sutherland Shire Council - [2005] NSWLEC 56

Land and Environment Court

of New South Wales

CITATION:
Chappelow v Sutherland Shire Council [2005] NSWLEC 56
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANTS
G & J Chappelow
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
11237 of 2004

CORAM:
Moore C

KEY ISSUES:
Development Application - Easements - Subdivision :-

CASES CITED:
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) NSWLEC 399;
Tenacity Consulting v Warringah Council 2004 NSWLEC 140

DATES OF HEARING: 17 February 2005

EX TEMPORE JUDGMENT DATE:
02/17/2005

LEGAL REPRESENTATIVES:
Mr C Leggat, barrister
INSTRUCTED BY
Macedone Willis
RESPONDENT
Mr C Mathieson, solicitor
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

17 February 2005

11237 of 2004 G & J Chappelow v Sutherland Shire Council

This decision was given as an extemporaneous decision at an on site hearing. It has been revised and edited prior to publication.
JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Shire Council (the council) on 13 October 2004 of Development Application 2004/0948 being an application to realign the boundaries between Lot 1119 DP 752064 and Lot B DP 405367. As part of that process, the applicants seek consent to erect a new dwelling on the southern of the two new allotments (that is Lot 2) and alterations to the existing brick residence on Lot 1 in order to permit the creation of an effective access to the proposed dwelling on Lot 2. The whole of the site is presently known as 2 Bayview Road, Woolaware.

2 The proposal is permissible within the zone with development consent.

3 The council went through an exhibition and advertising process which resulted in objections from the neighbours at 2A and 4 Bayview Street.

4 During the course of the hearing, I have had the assistance of the evidence of the court appointed planning expert, Mr M Ball, and I have also heard (after rejecting an objection from Mr Mathieson, solicitor employed by the council to my doing so), further planning evidence from Ms D Laidlaw, an expert planning witness on behalf of the applicant.

5 Setting aside for the moment the question of the objections raised by the neighbours at 2A and 4 Bayview Road, the two matters which remained of concern to the council were:

the nature of the proposed access way of Lot 1 to the east of Lot 2 to enable Lot 1 to have access to the water; and

proposed retention of the existing boat shed at the south western extremity of Lot 2.

6 The council has put the proposition that, if the boat shed were to be removed and there were to be modifications to the nature of the access permitted from Lot 1 to the water, the council would be content for the Court to grant the application.

7 During the course of…

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: [2005] NSWLEC 56
Decision Date: 02/17/2005

CaseChat Overview and Summary

In Chappelow v Sutherland Shire Council, the applicants G & J Chappelow sought to appeal the Sutherland Shire Council's refusal of their Development Application 2004/0948, which aimed to realign the boundaries between Lot 1119 and Lot B, and to construct a new dwelling on Lot 2. The proposed development also included modifications to the existing brick residence on Lot 1 to facilitate access to the new dwelling. The council's refusal was based on objections from neighbouring properties, particularly concerning the proposed access way and the retention of the existing boat shed. The Land and Environment Court of New South Wales, presided over by Commissioner Moore, was tasked with determining whether the council's refusal was justified and whether the proposed development should be granted consent.

The primary legal issues the court had to decide were whether the proposed access way and the retention of the boat shed were in compliance with planning regulations and if the objections raised by the neighbours warranted refusal of the application. The court examined the evidence provided by the planning experts and the objections from the neighbours to determine the impact of the proposed development on the surrounding environment and property values. The court also considered the Sutherland Shire Local Environment Plan 2000, which required development consent not to be granted if it encroached on the foreshore building line.

The court found that the proposed single access point from the road was appropriate despite potential vehicle conflicts, as it offered benefits over the separation into two driveways. The court also determined that the proposed access way needed modifications to comply with side setback requirements. Regarding the boat shed, the court ruled that it should be removed to ensure compliance with the foreshore building line and to avoid creating an unacceptable environmental impact. The court further addressed the objections from the neighbours, concluding that the proposed development would not significantly impact privacy, views, or property values, and that the potential for odours and parking issues did not warrant refusal of the application.

Based on these findings, the court concluded that the appeal should be upheld and granted development consent for the proposed subdivision, construction, and modifications, subject to conditions. These conditions included the removal of the boat shed, adjustments to the access way, and modifications to the plans to mitigate potential impacts on neighbouring properties. The court set the matter down for a callover to allow the parties to settle the conditions and submit revised plans.

Orders