Csont v Sutherland Shire Council - [2021] NSWLEC 1671

Land and Environment Court

New South Wales

Medium Neutral Citation: Csont v Sutherland Shire Council [2021] NSWLEC 1671
Hearing dates: 20 July, 22 October 2021
Date of orders: 4 November 2021
Decision date: 04 November 2021
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is upheld,
(2) Modification Application MA20/0372 is approved and development consent DA/19/0194 is modified by the terrace at the upper level of the boathouse and amending the approved swimming pool, spa and pool enclosure as detailed in the terms set out in Annexure A,
(3) As a consequence of order (2) above, development consent DA/19/0194 for the demolition of the existing residence, construction of a dwelling and swimming pool and alterations and additions to an existing boat house at 1 Taloombi Street Cronulla is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Catchwords:
MODIFICATION APPLICATION – amendments sought to pool, spa, pool enclosure and boathouse – development forward of the foreshore building line – whether the development is substantially the same development – visual impact – consistency with character of locality – view loss – impact on Gunnamatta Park – appeal upheld

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Environmental Planning and Assessment Regulation 2000, cll 43, 121B
Land and Environment Court Act 1979, s 34AA
State Environmental Planning Policy 55 – Remediation of Land, cl 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14
Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.9, 6.14, 6.16

Cases Cited:
Arrage v Inner West Council [2019] NSW LEC 85
Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
Hunters Hill Council v Fraser [2006] NSWLEC 744
Lido Estate Pty Ltd v Woollahra Municipal Council (1997) 99 LGERA 1
North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65
Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91

Texts Cited:
Macquarie Dictionary, 8th Edition
Sutherland Shire Council Development Control Plan 2015

Category: Principal judgment
Parties: Leigh Csont (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2021/33654
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their modification application (MA20/0372) by Sutherland Shire Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the modification pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The approved development application, which the Applicant seeks to modify, provides consent for demolition of the existing residence, construction of a dwelling and swimming pool and alterations and additions to an existing boat…

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 Csont v Sutherland Shire Council

Details

AGLC: Csont v Sutherland Shire Council [2021] NSWLEC 1671
Case: [2021] NSWLEC 1671
Decision Date: 04 November 2021

CaseChat Overview and Summary

The case of Csont v Sutherland Shire Council involved a dispute regarding a modification to a development consent. The applicant sought changes to the approved swimming pool, spa, and pool enclosure, as well as the addition of a terrace at the upper level of the boathouse. The Sutherland Shire Council refused the modification, leading the applicant to appeal to the Land and Environment Court. The court was required to determine whether the council's decision to refuse the modification was lawful and whether the modification itself met the statutory criteria for approval.

The court considered the statutory criteria for approving modifications to development consents under the Environmental Planning and Assessment Act 1979. It examined whether the modification was consistent with the relevant development control instruments, whether it would result in a significant impact on the environment, and whether it was in the public interest. The court also assessed whether the modification would result in a change in the character of the area or would be detrimental to the amenity of adjoining land. The applicant argued that the proposed modifications would not significantly impact the environment and would be in the public interest, while the council contended that the modifications would adversely affect the character of the area and adjoining properties.

The court found that the modification did not result in a significant impact on the environment and was in the public interest. It concluded that the proposed modifications would not change the character of the area or be detrimental to the amenity of adjoining land. The court held that the council's decision to refuse the modification was not supported by the evidence and was therefore unlawful. The appeal was upheld, and the modification application was approved. The court also noted that the modification would not result in any change to the overall size or scale of the development and would not have any significant adverse impact on the environment.

The court ordered that the appeal be upheld, and the modification application be approved. The development consent was modified to include the terrace at the upper level of the boathouse and the amended swimming pool, spa, and pool enclosure as detailed in Annexure A. The court also noted that the modification would not result in any change to the overall size or scale of the development and would not have any significant adverse impact on the environment. The court further ordered that the development consent for the demolition of the existing residence, construction of a dwelling, and swimming pool and alterations and additions to an existing boathouse at 1 Taloombi Street Cronulla is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld,

(2) Modification Application MA20/0372 is approved and development consent DA/19/0194 is modified by the terrace at the upper level of the boathouse and amending the approved swimming pool, spa and pool enclosure as detailed in the terms set out in Annexure A,

(3) As a consequence of order (2) above, development consent DA/19/0194 for the demolition of the existing residence, construction of a dwelling and swimming pool and alterations and additions to an existing boat house at 1 Taloombi Street Cronulla is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Csont v Sutherland Shire Council [2021] NSWLEC 1671
Hearing dates:	20 July, 22 October 2021
Date of orders:	4 November 2021
Decision date:	04 November 2021
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld, (2) Modification Application MA20/0372 is approved and development consent DA/19/0194 is modified by the terrace at the upper level of the boathouse and amending the approved swimming pool, spa and pool enclosure as detailed in the terms set out in Annexure A, (3) As a consequence of order (2) above, development consent DA/19/0194 for the demolition of the existing residence, construction of a dwelling and swimming pool and alterations and additions to an existing boat house at 1 Taloombi Street Cronulla is now subject to the consolidated modified conditions of development consent set out in Annexure B.
Catchwords:	MODIFICATION APPLICATION – amendments sought to pool, spa, pool enclosure and boathouse – development forward of the foreshore building line – whether the development is substantially the same development – visual impact – consistency with character of locality – view loss – impact on Gunnamatta Park – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cll 43, 121B Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.9, 6.14, 6.16
Cases Cited:	Arrage v Inner West Council [2019] NSW LEC 85 Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Hunters Hill Council v Fraser [2006] NSWLEC 744 Lido Estate Pty Ltd v Woollahra Municipal Council (1997) 99 LGERA 1 North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468 SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91
Texts Cited:	Macquarie Dictionary, 8th Edition Sutherland Shire Council Development Control Plan 2015
Category:	Principal judgment
Parties:	Leigh Csont (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2021/33654
Publication restriction:	No