Legal Research
Cases
Ebsworth v Sutherland Shire Council

Ebsworth v Sutherland Shire Council

Link copied

Case Copied 24 October 2005 19 min read

Contents

On this page

Land and Environment Court

of New South Wales

CITATION:
Ebsworth v Sutherland Shire Council [2005] NSWLEC 603

PARTIES:
APPLICANT
Adrienne Ebsworth
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
11664 of 2004

CORAM:
Talbot ACJ

KEY ISSUES:
Development Application :- consent to amended plans - criteria for determination.

LEGISLATION CITED:
Land and Environment Court Act 1979 s 39(2)
Environmental Planning and Assessment Regulation cl 55
Land and Environment Court Rules 1996 Part 13 rule 16 (b1)

CASES CITED:
Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204;
Elali v Campbelltown City Council (2004) 135 LGERA 85 ;
Ervin Mahrer and Partners v Strathfield Municipal Council (No. 2) (2001) 115 LGERA 259 ;
Kanivah Holdings Pty Limited v Burwood Council [2005] NSWLEC 211 ;
Moto Projects (No.2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ;
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468;
Thomas v Pittwater Council [2003] NSWLEC 19 ;
Vacik Pty Ltd v Penrith City Council (NSWLEC, 24 February 1992, unreported) ;
Waite v Blacktown City Council [2004] NSWLEC 157 ;
Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd [1974] 2 NSWLR 415

DATES OF HEARING: 13/10/2005

DATE OF JUDGMENT:

10/24/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr P C Tomasetti (Barrister)
SOLICITORS
Maddocks
RESPONDENT
Ms E J Ranken (Solicitor)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot ACJ

24 October 2005

11664 of 2004 Ebsworth v Sutherland Shire Council
JUDGMENT

1 Talbot ACJ: By Notice of Motion dated 23 September 2005 Adrienne Ebsworth (“the applicant”) seeks leave to rely on further amended plans filed and served 19 August 2005 and an order for costs.

Background

2 By Application Class 1 filed 29 December 2004 the applicant has appealed against the refusal by Sutherland Shire Council (“the council”) of Development Application No. 03/1552 (“DA No. 03/1552”) in respect of “Ancillary Development to Business Premises - Additions and Alterations to Existing Shops and Alteration to Three (3) Existing Residential Units to Create a Total of Nine (9) Residential Dwellings and Strata Subdivision into 17 Lots” on Lot 111 DP 816577, 22-30 Brighton Street, Bundeena (“the land”).

3 The applicant has relied on various plans at different stages of the development application and appeal process. They can be summarised as follows:-

(1) Plans Issue A lodged in support of the development application.

4 The plans lodged with DA No. 03/1552 on 11 September 2003 provided for one supermarket, two offices, five existing shops, 17 carparking spaces at the rear of the development and ten residential units generally over two levels above the shops and carparking area. The plans relied on the retention of five existing shops arranged in an arcade fashion extending in an easterly direction from Brighton Street.

5 On 23 September 2003 the council exhibited the Development Application and plans for a period of 14 days.

(2) Amended Plans Issue A submitted to council 10 December 2003.

6 The…

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.

Keep reading for free

Create a free CaseChat account to read Ebsworth v Sutherland Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWLEC 603
Decision Date: 10/24/2005

CaseChat Overview and Summary

Adrienne Ebsworth appealed against the Sutherland Shire Council’s refusal of her development application concerning the redevelopment of a site in Bundeena. The applicant sought leave to rely on further amended plans filed and served on 19 August 2005 and an order for costs. The council opposed the application on the basis that the proposed changes to the plans amounted to a new development proposal and not an amendment to the original application. The legal issues for the Court to determine were whether the further amended plans could be regarded as an amendment to the original development application and, if so, whether the applicant should be allowed to rely on them. The Court considered the relevant legislation, cases, and arguments from both parties. It was satisfied that the overall concept of the proposal remained the same and that the changes did not amount to a fundamentally different development. The Court exercised its discretion under Regulation 55 to allow the applicant to rely on the further amended plans.

The Court held that the further amended plans could be regarded as an amendment to the original development application and allowed the applicant to rely on them. It found that the overall concept of the proposed development remained the same and that the changes did not amount to a fundamentally different development. The Court exercised its discretion under Regulation 55 to allow the applicant to rely on the further amended plans, noting that a broad approach to the application of Regulation 55 was appropriate. The Court held that the proposed development, if approved, would still involve a supermarket with an office, shops, residential units, and ancillary parking, with a sufficiently similar configuration of components to raise a comparison that shows a fundamental similarity. The Court was not satisfied that the changes amounted to a substantially different development in the sense considered by Lloyd J in Waite.

Orders