Grant v Sutherland Shire Council - [2009] NSWLEC 1199

Land and Environment Court

of New South Wales

CITATION: Grant v Sutherland Shire Council [2009] NSWLEC 1199

PARTIES:
APPLICANT
James Grant
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10025 of 2009

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- residential flat building, building height, floor space ratio, streetscape SEPP 1 objections.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Development Control Plan 2006
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development

CASES CITED: Winten Developments Pty Ltd v North Sydney Council [1999] NSWLEC 229
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 26 and 27 May and 2 June 2009

DATE OF JUDGMENT:
22 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Stevens (Agent for the Applicant)
RESPONDENT
Mr J. Cole (Solicitor)
SOLICITOR
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

22 June 2009

10025 of 2009 Grant v Sutherland Shire Council
JUDGMENT

Introduction

1 This appeal relates to development application for the demolition of three dwelling houses and the construction of four-storey residential flat building containing 14 dwellings with basement parking for 29 cars at 7-11 Richmount Street, Cronulla.

2 The gently sloping site has a southern frontage of 40.235 m to Richmount Street and an area of 1765 square metres. There is some existing canopy vegetation in the vicinity of the northern/rear boundary of the site.

3 The site is located on the northern side of Richmount Street, opposite Coronation Avenue and close to Richmount Street's intersection with Parramatta Street. To the west are a number of detached dwelling houses and to the east on the corner of Parramatta Street is a four-storey residential flat building. To the north of the site generally beyond the rear boundary there are several four storey residential flat buildings. Opposite the site there are attached and detached one and two-storey dwellings. It is located within 700 m of the Cronulla town centre and some 800 m to the Cronulla Railway Station.

4 The appeal was lodged with the Court on the basis of council's deemed refusal of the development application.

5 This judgment concludes that the appeal should be dismissed for reasons essentially involving the proposal's failure to meet the applicable height and floor space ratio requirements of the planning controls.

Planning controls

6 The site is subject to the provisions of the Sutherland Shire Local Environmental Plan 2006 and the Sutherland Shire Development Control Plan 2006. Under the LEP residential flat buildings are permissible with development consent in Zone 6-Multiple Dwelling B. Because the development exceeds the height and floor space ratio development standards in the LEP the applicant has provided objections (in the Statement of Environmental Effects) under State Environmental Planning Policy No. 1 - Development Standards.

7 Both the LEP and the DCP were amended (Sutherland Shire Local Environmental Plan 2006-(Amendment 4)) in January 2009 but because this…

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: [2009] NSWLEC 1199
Decision Date: 22 June 2009

CaseChat Overview and Summary

The applicant sought to demolish existing dwellings and construct a four-storey residential flat building containing 14 dwellings with basement parking for 29 cars. The Council's refusal of the development application was appealed to the Land and Environment Court. The applicant argued that the proposal was consistent with the objectives of the planning controls and that the SEPP 1 objections should be upheld. The Council argued that the proposal was an overdevelopment of the site and would have adverse impacts on neighbouring properties. The Court considered the proposal's compliance with the planning controls and the objectives of the SEPP 1 objections. The Court held that the proposal exceeded the height and floor space ratio requirements of the planning controls and would have adverse impacts on neighbouring properties. The Court found that the proposal was not consistent with the objectives of the planning controls and dismissed the appeal. The Court ordered that the development application be refused and that the appeal be dismissed.

Orders