Gann & Anor v Sutherland Shire Council - [2008] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION: Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157

PARTIES:
APPLICANTS:
Peter James Gann & Tracy Dawn Keiser Gann
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S): 10763 of 2007

CORAM: Lloyd J

KEY ISSUES: Question of Law :- development application for construction of a new dwelling - modification of development consent - non-compliance with three provisions of the local environmental plan as proposed to be modified - power to modify consent - no legal impediment in such circumstances

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 79C and s 96
State Environmental Planning Policy No. 1 - Development Standards cl 6
Uniform Civil Procedure Rules 2005 r 28.2
Sutherland Shire Local Environmental Plan 2006 cl 33(4), cl 35(5) and cl 36(3)

CASES CITED: Lido Real Estate Pty Ltd v Woollahra Municipal Council (1997) 98 LGERA
Mirvac Projects Pty Ltd v Ku Ring Gai Council & Anor [2007] NSWLEC 540
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668; 97 LGERA 433

DATES OF HEARING: 25 March 2008

DATE OF JUDGMENT:
24 April 2008

LEGAL REPRESENTATIVES: APPLICANTS:
T F Robertson SC and J E Lazarus (barrister)
SOLICITORS:
Whites Lawyers
RESPONDENT:
Dr S M Berveling (barrister)
SOLICITORS:
Janelle Amy
Sutherland Council

JUDGMENT:

- 10 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 24 April 2008

LEC No. 10763 of 2007

GANN & ANOR v SUTHERLAND SHIRE COUNCIL [2008] NSWLEC 157

JUDGMENT

1 HIS HONOUR: This is the separate determination of a question of law which is raised in an appeal in Class 1 of the Court’s jurisdiction, as permitted by r 28.2 of the Uniform Civil Procedure Rules 2005. The question is as follows:

Does the Court as consent authority have the power to modify the consent to Development Application No. 04/0950 granted by the respondent on or about 17 February 2005, where such modification results in non-compliance with cll 33(4), 35(5) and 36(3) of Sutherland Shire Local Environmental Plan 2006?

2 The relevant facts may be briefly described. On 17 February 2005, Sutherland Shire Council granted a deferred commencement consent for the demolition of an existing dwelling and associated facilities and the construction of a new dwelling and associated facilities. On 22 July 2005, the council modified the consent. On 29 November 2006, Sutherland Shire Local Environmental Plan 2006 (“the LEP”) commenced. On 13 April 2007, the council received the present application for modification, which it refused. The applicants’ present appeal is against the council’s refusal to modify the consent.

3 The development as now proposed to be modified will infringe three provisions of the LEP – cl 33(4) relating to maximum building height, cl 35(5) relating to the maximum gross floor area and cl 36(3) relating to the minimum landscaped area of the site. No objection to these development standards has been made under State Environmental Planning Policy No. 1 – Development Standards (“SEPP…

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: [2008] NSWLEC 157
Decision Date: 24 April 2008

CaseChat Overview and Summary

In Gann & Anor v Sutherland Shire Council, the applicants sought modification of a development consent granted by the Sutherland Shire Council. The proposed modifications would result in non-compliance with certain provisions of the Sutherland Shire Local Environmental Plan 2006. The central legal question was whether the Court had the power to modify the consent despite the resulting non-compliance with the Local Environmental Plan. The applicants argued that the power to modify consent under the Environmental Planning and Assessment Act 1979 was a free-standing provision that did not require the modified development to comply with the Local Environmental Plan, while the Council contended that such modification would contravene the statutory requirement for development to be carried out in accordance with the Local Environmental Plan.

The Court examined the relevant statutory provisions and case law, particularly North Sydney Council v Michael Standley & Associates Pty Ltd, which held that a modification under the Act could be approved even if it resulted in a breach of development standards. The Court noted that the modification provision in the Act is independent and does not fall under the requirement for development to be carried out in accordance with the Local Environmental Plan. While the Local Environmental Plan's development standards must be considered, the absolute prohibition in the Act does not apply to modifications. The Court also found that the applicants' case was distinguishable from Lido Real Estate Pty Ltd v Woollahra Municipal Council, where an objection under the State Environmental Planning Policy No. 1 had been made and upheld. In the absence of such an objection, the development standards did not bar the modification.

Consequently, the Court concluded that there was no legal impediment to modifying the consent despite the resulting non-compliance with certain Local Environmental Plan provisions. The question of law was answered in the affirmative, allowing the potential for modification of the development consent.

Orders