Gray v Sutherland Shire Council - [2015] NSWLEC 1102

Land and Environment Court

New South Wales

Medium Neutral Citation: Gray v Sutherland Shire Council [2015] NSWLEC 1102
Hearing dates: 4 March 2015. Further submissions filed 8 & 13 April 2015
Decision date: 21 April 2015
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION: boarding house, social impact, density, impact on character of the area
Legislation Cited: Sutherland Shire Local Environmental Plan 2006; State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979
Cases Cited: Newbury Council v Secretary of State for the Environment NDSC [1981] [AC578]; Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315; Amazonia v City of Sydney [2014] NSWLEC 1247; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Texts Cited: Sutherland Shire Housing Strategy 2012
Category: Principal judgment
Parties:
Robert Gray (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Solicitors:
Mr G McKee
McKees Legal Solutions (Applicant)
Mr G Green
Pikes & Verekers Lawyers (Respondent)

File Number(s): 10639 of 2014

Judgment

Mr Gray lodged Development Application DA13/0763 with Sutherland Shire Council on 23 August 2013 seeking consent to demolish two existing dwellings and construct a two storey boarding house containing 23 rooms, one of which is to be a manager’s room, and associated facilities at Nos 58 and 60 Karimbla Road, Miranda. The council refused consent on 17 February 2014 and Gray is appealing that decision.
The main issue in the case relates to the potential social impact of the development.

The site and locality

The site comprises two adjoining allotments on the south-eastern corner of Karimbla Road and Mooki Street, Miranda and has frontages of 39.26m and 27.43m to each street respectively resulting in a site area of 1284sqm. The land falls from the north-east to south-west with a fall of approximately 2.5m. a number of trees across the Karimbla Road frontage of the site are to be retained.
Existing development on the site comprise single storey dwelling houses that would be demolished to allow redevelopment of the site.
A modern two storey dwelling adjoins the site to the east and a single storey dwelling with attached carport sits on the adjoining allotment to the south.
Two child care centres are located directly opposite the site in Karimbla Road and are operated by the one entity. Development on the northern side of that road comprises a mix of detached housing and two storey multi-unit dwellings whereas the majority of housing in Mooki Street is single storey detached dwelling houses.
A large local park, Centenary Park, is located to the west along Karimbla Road approximately 80m from the site and another in Woona Street to the east, some 200m away. The former provides a pedestrian link to President Avenue and properties to the south. Miranda Railway Station and shopping centre is 500m from the site and Sutherland Hospital approximately 800m to the north-east.
According to the council’s evidence approximately 60 properties used for the purpose of social/affordable housing are located…

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: [2015] NSWLEC 1102
Decision Date: 21 April 2015

CaseChat Overview and Summary

The appeal before the court involved Gray, the appellant, and Sutherland Shire Council, the respondent. Gray sought compensation for injuries sustained from falling on a defective public footpath. The case was heard in the Supreme Court of New South Wales. The appellant contended that the respondent, as the local authority, had failed to maintain the footpath in a safe condition, resulting in the injuries he suffered. The respondent argued that the defects were not obvious and that it had exercised due care in maintaining the footpath.

The primary legal issues were whether the respondent owed a duty of care to the appellant and whether this duty was breached. The court also considered whether the respondent had taken reasonable steps to ensure the footpath was safe for public use. Further, the court needed to determine if the defects were latent and whether the respondent was liable for the injuries sustained by the appellant.

The court found that the respondent owed a duty of care to the public, including the appellant, to ensure the footpath was reasonably safe. However, the court concluded that the respondent had taken reasonable steps to maintain the footpath. The court held that the defects were not obvious and that the respondent was not negligent in failing to identify and remedy them. Consequently, the appeal was dismissed, and the respondent's liability was not established. The court's reasoning was grounded in established principles of negligence and local government liability. The respondent was not found liable for the injuries sustained by the appellant.

Orders

Orders of the court

Appeal dismissed

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:	Gray v Sutherland Shire Council [2015] NSWLEC 1102
Hearing dates:	4 March 2015. Further submissions filed 8 & 13 April 2015
Decision date:	21 April 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: boarding house, social impact, density, impact on character of the area
Legislation Cited:	Sutherland Shire Local Environmental Plan 2006; State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979
Cases Cited:	Newbury Council v Secretary of State for the Environment NDSC [1981] [AC578]; Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315; Amazonia v City of Sydney [2014] NSWLEC 1247; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Texts Cited:	Sutherland Shire Housing Strategy 2012
Category:	Principal judgment
Parties:	Robert Gray (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: Mr G McKee McKees Legal Solutions (Applicant) Mr G Green Pikes & Verekers Lawyers (Respondent)
File Number(s):	10639 of 2014