Dwyer v Sutherland Shire Council - [2018] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation: Dwyer v Sutherland Shire Council [2018] NSWLEC 1543
Hearing dates: 7 September 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction: Class 1
Before: Bish C
Decision:
The orders of the Court are:
(1)   The appeal is upheld;
(2)   Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A;
(3)   The exhibits, except Exhibits 1 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environment Plan 2015
Cases Cited: MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215
Texts Cited: Sutherland Shire Development Control Plan 2015
Category: Principal judgment
Parties: Daniel Robert Dwyer (Applicant)
Sutherland Shire Council (Respondent)
Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
J Amy, Sutherland Shire Council (Respondent)

File Number(s): 2018/63423
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) DA17/1774 for two studios above detached garages at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine (hereafter the site).
The site is rectangular in shape with a 34.1m frontage to Old Princes Highway and a total area of 1568.2m². The site has a fall of 1.4m towards the east (rear boundary).
The surrounding area is dominated by one- and two-storey residential dwellings of various architectural styles, which due to the neighbouring lot configuration, have dwellings located in close proximity to both the rear and front of the site.

Background

The site is currently occupied by two approved (DA 16/0095) three-storey dual occupancy dwellings under construction (i.e. four dwellings on the site), which are located in the front (street) portion of the site, with four semi-detached garages under construction in the rear portion of the site.
The central two garages, identified as belonging to Dwellings 1B and 2A, are the subject of the appeal.
The garages are separated from the (primary) dwellings by a landscaped yard, which on the centrally located dwellings (1B and 2A) can be accessed via a rear gate in the fence located near the garage or through the dwelling itself. The other dwellings (1A and 2B) can access the rear yard through a side gate in the front or internally through the dwelling.
The garages are currently approved as single storey, separated from the rear boundary by a 6m wide concreted driveway allowing garage access and a 1m wide strip of landscaping along the fence. The access driveway extends to the street through the centre of the site, and separates the garages of Dwellings 1B and 2A.
The DA (DA17/1774) for the proposed studios was lodged…

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: [2018] NSWLEC 1543
Decision Date: 17 October 2018

CaseChat Overview and Summary

The appeal in Dwyer v Sutherland Shire Council concerns a dispute between the appellant, Dwyer, and the Sutherland Shire Council over the approval of a development application for two studios above detached garages. The case was heard in the Land and Environment Court of New South Wales. The appellant sought approval for two studio dwellings above detached garages located at the rear of two properties, with the council initially denying the application. Dwyer appealed this decision to the Land and Environment Court.

The central legal issue before the court was whether the proposed development of two studios above detached garages was consistent with the relevant planning controls and whether it was in line with the council's planning policies. This included assessing whether the development met the criteria for approval under the Local Environment Plan and if it adhered to the council's planning policies and guidelines. The court also needed to determine if the proposed development would result in any undue harm or detriment to neighbouring properties or the community.

The court found that the development application complied with the relevant planning controls and council policies. The judges considered various factors, including the aesthetic and physical impact on neighbouring properties, the nature of the development in the context of the surrounding area, and the overall benefits of the proposed development to the community. The court determined that the proposed studios would not cause undue harm to neighbouring properties and would provide a beneficial use of the land. Consequently, the appeal was upheld, and the development application was approved, subject to specific conditions outlined in Annexure A. The exhibits, except for Exhibits 1 and A, were ordered to be returned.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld;

(2) Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A;

(3) The exhibits, except Exhibits 1 and A, are returned.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dwyer v Sutherland Shire Council [2018] NSWLEC 1543
Hearing dates:	7 September 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are: (1) The appeal is upheld; (2) Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A; (3) The exhibits, except Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environment Plan 2015
Cases Cited:	MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215
Texts Cited:	Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Daniel Robert Dwyer (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/63423
Publication restriction:	No