Gann v Sutherland Shire Council - [2008] NSWLEC 1228

Land and Environment Court

of New South Wales

CITATION: Gann v Sutherland Shire Council [2008] NSWLEC 1228

PARTIES:
Applicant:
Peter James Gann and Tracy Dawn Keiser Gann
Respondent:
Sutherland Shire Council

FILE NUMBER(S): 10763 of 2007

CORAM: Roseth SC

KEY ISSUES: Section 96 Application :-

DATES OF HEARING: 3 June 2008 and 4 June 2008

DATE OF JUDGMENT:
20 June 2008

LEGAL REPRESENTATIVES: Applicant:
Mr T Robertson QC with Mr J Lazarus, barrister instructed by Mr G White, solicitor of Whites Lawyers
Respondent:
Mr S Berveling, barrister instructed by Ms J Amy, solicitor with Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

20 June 2008

10763 of 2007 Peter James Gann & Tracy Dawn Keiser Gann v Sutherland Shire Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Sutherland Shire Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to amend the consent issued by the council on 17 February 2005 for a dwelling on lot X DP 390110, known as 365 Woolooware Road, Burraneer. The amendments seek to legitimise unauthorised works.

2 The site is a waterfront battle-axe allotment with a 3.6m wide handle off the western side of Woolooware Road. The site’s area is 1,354m2, of which the access handle constitutes 496m2. The site contains the partially built house, some of which is built differently from the approval.

3 The locality, like most waterfront areas, is characterised by large sites and large buildings.

4 On 17 February 2005 the council granted consent to the demolition of an existing house and the construction of a new dwelling and associated facilities. On 22 July 2005 the council modified the consent in ways that are not relevant to this appeal. Both approvals were given under Local Environmental Plan 2000 (LEP 2000). On 29 November 2006 Local Environmental Plan 2006 (LEP 2006) came into effect.

5 The applicant lodged the s96 application, which is the subject of the current appeal, on 13 April 2007. On 19 July 2007 the council refused the application for nine reasons, which may be summarised as inconsistency with the objectives and development standards of LEP 2006. On 8 August 2007 the applicant filed the appeal. In October and November 2007 the applicant received leave to rely on revised drawings. The council notified the last set of plans and received four submissions.

6 A list of proposed amendments, annotated by the council according to whether it agrees with or objects to it, was tendered as Exhibit 11 in the proceedings.

7 The following 13 items are amendments with which the council agrees:

· Reduction in height of entry portico by 1.5m.

· Removal of bay window element and roof form on first floor western façade.

· Lower roof from and ridge heights in the order of 300mm.

· Deletion of gable parapets on north, east and south…

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 1228
Decision Date: 20 June 2008

CaseChat Overview and Summary

Gann v Sutherland Shire Council was a case before the Land and Environment Court of New South Wales, where Peter James Gann and Tracy Dawn Keiser Gann appealed against the Sutherland Shire Council's refusal of an application to amend a consent issued under s96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) for a dwelling on lot X DP 390110, known as 365 Woolooware Road, Burraneer. The applicants sought to legitimise unauthorised works carried out on the site. The key issues in the case revolved around the application of the Local Environmental Plan 2006 (LEP 2006) and the development standards it contained, as well as the impact of the proposed amendments on the surrounding neighbourhood.

The court considered whether the proposed amendments complied with the development standards of LEP 2006 and whether the amendments would have any significant impact on the privacy, character, and amenity of the locality. The court also took into account the concerns raised by objectors living in the vicinity of the site.

In its judgment, the court held that the proposed amendments should be considered in light of the development standards in LEP 2006, but also recognised that existing breaches should not be exacerbated further. The court allowed increases in Gross Floor Area (GFA) or reductions in landscaped area only where there were very strong reasons for them. Ultimately, the court allowed the appeal in part, granting consent for the applicants to amend the consent issued by the council, subject to certain conditions.

The final orders of the court were that the appeal was upheld in part, the application under s96 of the EPA Act was given consent subject to the conditions outlined in Annexure A, and the exhibits were returned except for Exhibits 10, C, and D.

Orders