Domazet v Eurobodalla Council - [2011] NSWLEC 1325

Land and Environment Court

New South Wales

Medium Neutral Citation: Domazet v Eurobodalla Council [2011] NSWLEC 1325
Hearing dates: 6 October 2011
Decision date: 16 November 2011
Jurisdiction: Class 1
Before: Smithson AC
Decision:
1.The appeal is dismissed.
2.Modification Application M859/08 under s 96 of the Environmental Planning and Assessment Act for additions and alterations to an existing dwelling at 70 Yugura Street is refused.
3.The exhibits are returned to the parties with the exception of Exhibits A and 1.

Catchwords: DEVELOPMENT MODIFICATION - dwelling height, dwelling roof shape and height, view sharing and loss, public interest, substantially the same as approved development
Legislation Cited: Environmental Planning and Assessment Act 1979
Eurobodalla Urban Local Environmental Plan 1999
Eurobodalla Development Control Plan 2006
Cases Cited: Super Studio v Waverley Council [2004] NSW LEC 91
Tenacity Consulting v Warringah [2004] NSW LEC 140
Padfurn v North Sydney Council [2005] NSW LEC 444
Veloshin v Randwick Council [2007] NSW LEC 428
Category: Principal judgment
Parties:
Ivan Domazet (Applicant)
Eurobodalla Council (Respondent)
Representation:
Counsel
C Ireland (Applicants)

N Simmons (Respondent)
Solicitors
Paul O'Sullivan, O'Sullivan Saddington Lawyers (Applicant)
Daryl Gray, Sparke Helmore Lawyers (Respondent)

File Number(s): 10643 of 2011

Judgment

This is an appeal against the refusal by Eurobodalla Council (the Council) to modify Development Consent No M859/08 under s 96 of the Environmental Planning and Assessment Ac t 1979 (the Act) for substantial extensions to an existing dwelling at 70 Yugura Street, Malua Bay.

The grounds for the refusal by the Council are, in essence, that:

(a) the modifications proposed do not constitute substantially the same development as that approved as required by s96 (2) of the Act;

(b) the proposal is contrary to the provisions of clause 8 (g)(ii) and 14 (b) of the Eurobodalla LEP in that it does not accord with the character of the area nor does it have regard to existing beneficial character features;

(c) the proposal is contrary to the provisions of clause 3.2.2 of the Eurobodalla DCP (Residential Design Code) in that it does not maximise the opportunity for views and has unreasonable impact on existing views having regard to the Court's view sharing principles; and

(d) given the above, the proposal is not in the public interest.

The Council's assessment concluded that the proposed modification would cause the development to exceed the maximum building height of 8.5 m above natural ground level under the Eurobodalla Development Control Plan 2006 (the DCP), would significantly exceed the building envelope requirements under the DCP, and was contrary to the view sharing controls in the DCP.

Site Details

The subject site (the site), Lot 87 DP 518784, is located on the northern side of Yulgara Street. The rear (northern) boundary adjoins an area of waterfront reserve with an Open Space zoning being the waterfront of Garden Bay, an embayment of the Pacific Ocean. A zoned open space reserve also adjoins to the east whilst residential properties exist to the west and south.

The site is 556.4 sq m in area…

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 1325
Decision Date: 16 November 2011

CaseChat Overview and Summary

In Domazet v Eurobodalla Council, the respondent sought to appeal a decision of the Land and Environment Court of New South Wales. The matter involved an application for modifications to an existing dwelling under the Environmental Planning and Assessment Act. The appeal was brought against the respondent's decision to refuse the modification application. The applicant argued that the refusal was unreasonable and constituted an error of law. The court was tasked with determining whether the respondent's decision was lawful and whether the applicant had demonstrated sufficient grounds for appeal.

The central legal issues before the court were whether the respondent's decision to refuse the modification application was unreasonable and whether it constituted an error of law. The applicant contended that the respondent failed to properly consider the relevant planning policies and that the refusal was not supported by the evidence. The applicant further argued that the respondent had not adequately justified the refusal of the modification application. The respondent, on the other hand, maintained that the decision was lawful and that it had properly considered all relevant factors and evidence in reaching its decision.

The court considered the relevant statutory provisions and case law in determining the appeal. The court found that the respondent had properly considered the relevant planning policies and evidence in making its decision. The court also found that the respondent's decision was not unreasonable and did not constitute an error of law. The court held that the applicant had not demonstrated that the respondent's decision was so unreasonable as to justify the court intervening. The appeal was therefore dismissed, and the modification application was refused. The exhibits were returned to the parties, except for Exhibits A and 1.

Orders

Orders of the court

1.The appeal is dismissed.

2.Modification Application M859/08 under s 96 of the Environmental Planning and Assessment Act for additions and alterations to an existing dwelling at 70 Yugura Street is refused.

3.The exhibits are returned to the parties with the exception of Exhibits A and 1.

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:	Domazet v Eurobodalla Council [2011] NSWLEC 1325
Hearing dates:	6 October 2011
Decision date:	16 November 2011
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1.The appeal is dismissed. 2.Modification Application M859/08 under s 96 of the Environmental Planning and Assessment Act for additions and alterations to an existing dwelling at 70 Yugura Street is refused. 3.The exhibits are returned to the parties with the exception of Exhibits A and 1.
Catchwords:	DEVELOPMENT MODIFICATION - dwelling height, dwelling roof shape and height, view sharing and loss, public interest, substantially the same as approved development
Legislation Cited:	Environmental Planning and Assessment Act 1979 Eurobodalla Urban Local Environmental Plan 1999 Eurobodalla Development Control Plan 2006
Cases Cited:	Super Studio v Waverley Council [2004] NSW LEC 91 Tenacity Consulting v Warringah [2004] NSW LEC 140 Padfurn v North Sydney Council [2005] NSW LEC 444 Veloshin v Randwick Council [2007] NSW LEC 428
Category:	Principal judgment
Parties:	Ivan Domazet (Applicant) Eurobodalla Council (Respondent)
Representation:	Counsel C Ireland (Applicants) N Simmons (Respondent) Solicitors Paul O'Sullivan, O'Sullivan Saddington Lawyers (Applicant) Daryl Gray, Sparke Helmore Lawyers (Respondent)
File Number(s):	10643 of 2011