Geelan v Sutherland Shire Council - [2011] NSWLEC 1375

Land and Environment Court

New South Wales

Medium Neutral Citation: Geelan v Sutherland Shire Council [2011] NSWLEC 1375
Hearing dates: 1 September 2011, Interim findings 25 October 2011, mention 11 November 2011, 14 November 2011
Decision date: 14 November 2011
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is upheld.
2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1 and K.
4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - breach of foreshore building line - location of "existing dwelling on the land" - whether some proposed works permissible - if permissible, whether works acceptable on merit assessment
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297
Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790
Lennard v Jessica Estates (2008) 71 NSWLR 306
Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379
Wilson v State Rail Authority [2010] NSWCA 198
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445
Category: Principal judgment
Parties:
Luke Geelan (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel
Mr A Galasso SC (Applicant)

Mr T Robertson SC (Respondent)
Solicitors
Maddocks Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 10081 of 2011

Judgment

ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council (the council) for alterations and additions to an existing dwelling house located at 8 Shell Road, Burraneer (the site). The site is an internal allotment, with access from Shell Road. It has an L-shaped configuration with a total site area of 2112 sq m. The eastern boundary has a 27.97 m frontage to Gunnamatta Bay.

Background

On 9 July 2010, the council approved DA 10/0214 for "Alterations and Additions to Existing Dwelling, Swimming Pool and Cabana" (the 2010 approval) that included condition 7(b). Condition 7(b) states:

7. Design Changes Required

To reduce the environmental and/or/the logical impact of the development proposal, following the design changes shall be implemented

(a)

(b) No works the east of the existing dwelling (red line shown on the approved plans) approved in this application.

Should the applicant wish to undertake any works the east of the existing dwelling on site, a Section 96 amendment shall be submitted to Council in accordance with the Environmental Planning and Assessment Act 1979 to amend this condition.

On 24 August 2010, the council received Development Application No10/0807 for "Alterations and Additions to Existing Dwelling and Spa ". This was largely in response to condition 7(b) of DA 10/0214. This development application was refused on 24 November 2010 and is the basis for this appeal.

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.

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Details

Case: [2011] NSWLEC 1375
Decision Date: 14 November 2011

CaseChat Overview and Summary

In the matter of Geelan v Sutherland Shire Council, the dispute arose when the Sutherland Shire Council denied an application for alterations and additions to a dwelling at 8 Shell Road, Burraneer. The applicant, Geelan, appealed this decision to the Land and Environment Court of New South Wales. The appeal was heard by Justice Rolfe, who had to determine whether the Council's decision was legally sound and whether the proposed alterations and additions complied with relevant planning laws.

The primary legal issues before the court were whether the Council's decision to deny the application was in accordance with the relevant planning instruments and whether the proposed alterations and additions were in compliance with the Sutherland Local Environment Plan 2006. The applicant argued that the decision was unreasonable and that the proposed works would not adversely affect the area. The Council contended that the proposed works did not comply with the planning standards and that the landscaping would not meet the required standards.

Justice Rolfe found that the Council's decision to deny the application was unreasonable. The court held that the proposed alterations and additions were in compliance with the planning instruments and did not adversely affect the area. The court also found that the objection to the landscaped area development standard in clause 36 of the Sutherland Local Environmental Plan 2006 was well founded. The appeal was upheld, and the application for alterations and additions was approved subject to the conditions in Annexure A. The exhibits were returned with the exception of exhibits 1 and K.

Orders

Orders of the court

1. The appeal is upheld.

2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and K.

4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Geelan v Sutherland Shire Council [2011] NSWLEC 1375
Hearing dates:	1 September 2011, Interim findings 25 October 2011, mention 11 November 2011, 14 November 2011
Decision date:	14 November 2011
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld. 2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and K. 4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - breach of foreshore building line - location of "existing dwelling on the land" - whether some proposed works permissible - if permissible, whether works acceptable on merit assessment
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790 Lennard v Jessica Estates (2008) 71 NSWLR 306 Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379 Wilson v State Rail Authority [2010] NSWCA 198 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445
Category:	Principal judgment
Parties:	Luke Geelan (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel Mr A Galasso SC (Applicant) Mr T Robertson SC (Respondent) Solicitors Maddocks Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10081 of 2011