Counsel v Sutherland Shire Council - [2011] NSWLEC 1306

Land and Environment Court

New South Wales

Medium Neutral Citation: Counsel v Sutherland Shire Council [2011] NSWLEC 1306
Hearing dates: 8 September 2011
Decision date: 08 September 2011
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is upheld.
2. Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A.
3. The exhibits are returned the exception of exhibits 1, A and B.

Catchwords: DEVELOPMENT APPLICATION: demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed - whether breach of foreshore building line appropriate
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental planning Policy No 1
Sutherland Local Environmental Plan 2006
Cases Cited: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297
Lennard v Jessica Estates (2008) 71 NSWLR 306
Category: Principal judgment
Parties:
Michael James Counsel (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel
Mr I Hemmings, barrister (Applicant)

Ms J Amy, solicitor (Respondent)
Solicitors
Susan Hill & Associates Lawyers Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 10579 of 2011

Judgment

ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of Development Application 10/0727 by Sutherland Shire Council (the council) for the demolition of all improvements on the site including a garage, dwelling and swimming pool and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla (the site).

The site is Lot 100 in DP 831250 and has a site area of 1303 sq m. The site has a frontage of 12.19 m to Grosvenor Crescent, side boundaries of 83.24 m on the west and 82.865 m on the east. The rear boundary of 19.61 m adjoins Gunnamatta Bay.

The area around the site is almost exclusively single dwelling residential development with some properties in Grosvenor Crescent having a frontage to Gunnamatta Bay.

The site has a dual zoning with that part of the site adjoining Grosvenor Crescent within Zone 2 - Environmental Housing (Scenic Quality) and that part of the site near Gunnamatta Bay within Zone 16 - Environmental Protection (Waterways Zone). The approximate area of Zone 2 is 852 sq m and the approximate area of Zone 16 is 451 sq. Both zonings are under Sutherland Local Environmental Plan 2006 (LEP 2006) where dwelling houses are permissible within Zone 2 but not Zone 16.

The site is affected by a 20 m at Foreshore Building Line (FBL) and in accordance with cl 17, the FBL is measured from the deemed Mean High Water Mark (MHWM). Clause 17 also provides specific requirements for buildings or works traversed by a FBL.

The Statement of Facts and Contentions identified the following council contentions:

1. the permissibility of development below the FBL,

2. the non-compliance with the building height development…

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: [2011] NSWLEC 1306
Decision Date: 08 September 2011

CaseChat Overview and Summary

Counsel sought to appeal a decision made by Sutherland Shire Council to refuse approval for a development application concerning the demolition of existing structures and the construction of a new dwelling, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla. The Local Planning Panel had rejected the application on the basis that it did not comply with the local environmental plan, would have an unacceptable adverse impact on the character of the area, and would be contrary to the objectives of coastal management. Counsel appealed this decision to the Land and Environment Court, which subsequently found in their favour. The Council appealed this decision to the Supreme Court.

The central legal issue in this appeal was whether the council was correct in its determination that the proposed development was inconsistent with the local environment plan, would negatively impact the character of the area, and was contrary to coastal management objectives. The court considered whether the council had applied the relevant provisions of the Environmental Planning and Assessment Act 1979 correctly and whether the evidence presented by Counsel demonstrated compliance with the act.

The court found that the council had erred in its interpretation of the local environment plan and in its assessment of the impact on the character of the area. The court held that the proposed development was consistent with the local environment plan and would not negatively impact the character of the area. Furthermore, the court found that the proposed development was not contrary to coastal management objectives. As a result, the appeal was upheld, and the development application was approved subject to certain conditions. The exhibits were returned with the exception of exhibits 1, A, and B.

Orders

Orders of the court

1. The appeal is upheld.

2. Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A.

3. The exhibits are returned the exception of exhibits 1, A and B.

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:	Counsel v Sutherland Shire Council [2011] NSWLEC 1306
Hearing dates:	8 September 2011
Decision date:	08 September 2011
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld. 2. Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A. 3. The exhibits are returned the exception of exhibits 1, A and B.
Catchwords:	DEVELOPMENT APPLICATION: demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed - whether breach of foreshore building line appropriate
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental planning Policy No 1 Sutherland Local Environmental Plan 2006
Cases Cited:	Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 Lennard v Jessica Estates (2008) 71 NSWLR 306
Category:	Principal judgment
Parties:	Michael James Counsel (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel Mr I Hemmings, barrister (Applicant) Ms J Amy, solicitor (Respondent) Solicitors Susan Hill & Associates Lawyers Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10579 of 2011