Durward Pty Ltd v Sutherland Shire Council - [2004] NSWLEC 12

Land and Environment Court

of New South Wales

CITATION: Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12

PARTIES:
APPLICANT
Durward Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 11034 of 2003

CORAM: Hussey C

KEY ISSUES:
Development Application :- Area context - building design - streetscape - solar access - landscaping - public interest

LEGISLATION CITED: Environmental Planning and Assessment Act
Sutherland Shire Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING: 12, 13, 14 January 2004

DATE OF JUDGMENT: 01/28/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
McKees Legal Solutions
RESPONDENT
Mr R O'Gorman Hughes, solicitor

JUDGMENT:

11034 of 2003

Hussey C

28 January 2004

Durward Pty Ltd

Applicant

Sutherland Shire Council

Respondent

Judgment

Background

1. This matter involves an appeal against council’s deemed refusal of a development application for 8 residential villas and 14 townhouses comprising a total of 22 x 3-bedroom units, with basement carparking for 49 vehicles.

2. The site is located at 54 - 62 Osprey Drive, Illawong. It is roughly trapezial-shaped, with a total area of 7674.1 sq m. It has a frontage to Osprey Drive of 80.46 m and extends through to Lambeth Place where it has a 69.73 m frontage.

3. The site contains a single storey fibre cement dwelling house, a garage and minor outbuildings. On the site there are a number of native trees including groups of eucalyptus.

4. The surrounding residential area contains single storey and two-storey houses in a range of styles from the late 20th century, set in gardens of suburban plantings. Face brick walls with tile roofs are the predominant building materials.

The proposal

5. This proposal involves:

the demolition of existing structures on the property,

the construction of 22 detached and semi-detached dwellings of 1 and 2 stories, with 10 facing Osprey Drive and 12 facing Lambeth Place,

the provision of a central communal open space and private pedestrian access way between Osprey Drive and Lambeth Place,

ground level private open space for each dwelling,

excavated basement level carparking beneath the proposed buildings with access from Osprey Drive,

strata subdivision into 22 lots and common property for access and communal open space areas.

6. The proposed buildings are to have varied setbacks to the street alignment and be finished in natural colour schemes to blend with the surrounding bushland environment. Extensive landscaping is also proposed to augment the existing vegetation along both street frontages and the internal central open space.

Planning controls.

Sutherland Local Environmental Plan 2000 (SSLEP 2000):

7. Under this instrument, the subject site is within the 2(a1) Residential Zone and the proposal is permissible with consent.

8. The objectives this zone are for a residential environment:

(a)

where the scale, amenity and general character of the area is preserved, and

(b)

where the streetscape is characterised by detached 1 and 2-storey residential buildings, and

(c)

where the predominantly single dwelling house character of neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse…

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: [2004] NSWLEC 12
Decision Date: 01/28/2004

CaseChat Overview and Summary

Durward Pty Ltd sought approval from the Sutherland Shire Council for a development application involving the construction of 8 residential villas and 14 townhouses, amounting to 22 three-bedroom units with basement carparking. The development was proposed for a site located at 54-62 Osprey Drive, Illawong, NSW, which is situated within the 2(a1) Residential Zone as per the Sutherland Local Environmental Plan 2000. The key issues before the Land and Environment Court of New South Wales included the appropriateness of the design, orientation of buildings, solar access, integration of landscaping, and the public interest, particularly the impact of medium density development, access, and safety.

The court examined whether the proposed development complied with the objectives of the Sutherland Local Environmental Plan 2000 and the Development Control Plan for Townhouses and Villa Houses in Residential Zones. The court found that the proposal complied with height, floor space ratio, landscaped area, allotment size, and dimensions as per the plan. The court also considered the aesthetic and environmental impacts, including the streetscape, solar access, and landscaping. The applicant's design integrated single and two-storey buildings and preserved significant trees and natural features, which were deemed satisfactory. The court concluded that the design, while not perfect, achieved a reasonable balance and met the objectives of the planning controls.

The court found that the applicant's proposal merited conditional consent, as it complied with the planning controls and provided a reasonable degree of compatibility with the existing neighbourhood. The court accepted the applicant's amendments and conditions to address specific concerns raised by the council, such as setbacks, solar access, and privacy. The court granted development consent subject to the conditions specified in Annexure A, thereby upholding the appeal.

Orders