Hamilton v Sutherland Shire Council - [2022] NSWLEC 1535

Land and Environment Court

New South Wales

Medium Neutral Citation: Hamilton v Sutherland Shire Council [2022] NSWLEC 1535
Hearing dates: Conciliation conference on 27 September 2022
Date of orders: 27 September 2022
Decision date: 27 September 2022
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders:
(1) The revised cl 4.6 written request prepared by Steven Layman Consulting Pty Ltd for a variation to the lot width development standard under cl 4.1A of the Sutherland Shire Local Environmental Plan 2015 is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to development application no. DA19/0595 for the boundary adjustment between Lots 1150 & 1151 in DP1181245 and the Torrens Title Subdivision of Lot 1150 in DP1181245 to create a total of two (2) lots and associated works at No’s. 176A & 198 Ellesmere Road, Gymea Bay subject to the conditions set out in Annexure ‘A’.

Catchwords:
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:
Coastal Management Act 2016, s 5
Environmental Planning and Assessment Act 1979, ss 1.3, 8.3, 8.7
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Interpretation Act 1987, s 30A(2)
Land and Environment Court Act 1979, s 34
Sutherland Shire Local Environmental Plan 2015, cll 4.1A, 4.6, 6.1, 6.2
State Environmental Planning Policy (Coastal Management) 2018, cll 15, 16
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.12, 2.13, 4.6
State Environmental Planning Policy No 55—Remediation of Land (repealed), cl 7

Cases Cited:
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Sutherland Shire Development Control Plan 2015

Category: Principal judgment
Parties: Colin Stewart Hamilton (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
R O’Gorman-Hughes (Respondent)
Solicitors:
Piper Alderman (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2021/344013

Judgment

The applicant, Colin Hamilton, has appealed against the Sutherland Shire Council’s determination to refuse consent to his subdivision application (no. DA19/0595 (DA)). That determination was not changed following a review under s 8.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) and that review application is the subject of these proceedings.
The DA sought development consent for a boundary adjustment between Lots 1150 and 1151 in DP 1181245 and the Torrens Title subdivision of Lot 1150 in DP 1181245 to create a total of two lots and associated works (proposed development) at Nos 176A and 198 Ellesmere Road, Gymea Bay (site).
The site is zoned C3 Environmental Management (C3 zone) pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP). Development for the purposes of subdivision is permitted within this zone with development consent.
The hearing commenced onsite with the oral evidence of the objectors. After hearing from the objectors, the parties sought an adjournment of the hearing to allow the matter to be allocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated the parties’ request, and…

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: [2022] NSWLEC 1535
Decision Date: 27 September 2022

CaseChat Overview and Summary

In Hamilton v Sutherland Shire Council, the respondent, Hamilton, sought to appeal a decision made by the Sutherland Shire Council (appellant) to deny a development application concerning a boundary adjustment. The development application involved the creation of two lots and associated works on properties located at 176A and 198 Ellesmere Road, Gymea Bay. The primary issue before the court was whether the Sutherland Shire Council's decision to deny the development application was legally sound. Specifically, the court needed to determine if the proposed boundary adjustment was compliant with the Sutherland Shire Local Environmental Plan 2015.

The legal issues that the court addressed included the interpretation of the relevant provisions of the Sutherland Shire Local Environmental Plan 2015, particularly cl 4.1A and cl 4.6. The court had to consider whether the proposed boundary adjustment complied with these provisions and whether the respondent's request for a variation to the lot width development standard was justified. Additionally, the court assessed whether the Sutherland Shire Council's decision to deny the development application was based on appropriate considerations and whether the respondent's appeal was meritorious.

The court found that the Sutherland Shire Council's decision to deny the development application was not legally sound. The court held that the proposed boundary adjustment was compliant with the relevant provisions of the Sutherland Shire Local Environmental Plan 2015 and that the respondent's request for a variation to the lot width development standard was justified. The court also determined that the Sutherland Shire Council had not adequately considered the respondent's request and had failed to provide appropriate reasons for denying the development application. As a result, the court upheld the respondent's appeal and granted development consent for the proposed boundary adjustment, subject to specific conditions outlined in Annexure ‘A’.

Orders

Orders of the court

The Court orders:

(1) The revised cl 4.6 written request prepared by Steven Layman Consulting Pty Ltd for a variation to the lot width development standard under cl 4.1A of the Sutherland Shire Local Environmental Plan 2015 is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA19/0595 for the boundary adjustment between Lots 1150 & 1151 in DP1181245 and the Torrens Title Subdivision of Lot 1150 in DP1181245 to create a total of two (2) lots and associated works at No’s. 176A & 198 Ellesmere Road, Gymea Bay subject to the conditions set out in Annexure ‘A’.

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:	Hamilton v Sutherland Shire Council [2022] NSWLEC 1535
Hearing dates:	Conciliation conference on 27 September 2022
Date of orders:	27 September 2022
Decision date:	27 September 2022
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The revised cl 4.6 written request prepared by Steven Layman Consulting Pty Ltd for a variation to the lot width development standard under cl 4.1A of the Sutherland Shire Local Environmental Plan 2015 is upheld. (2) The appeal is upheld. (3) Development consent is granted to development application no. DA19/0595 for the boundary adjustment between Lots 1150 & 1151 in DP1181245 and the Torrens Title Subdivision of Lot 1150 in DP1181245 to create a total of two (2) lots and associated works at No’s. 176A & 198 Ellesmere Road, Gymea Bay subject to the conditions set out in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Coastal Management Act 2016, s 5 Environmental Planning and Assessment Act 1979, ss 1.3, 8.3, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Interpretation Act 1987, s 30A(2) Land and Environment Court Act 1979, s 34 Sutherland Shire Local Environmental Plan 2015, cll 4.1A, 4.6, 6.1, 6.2 State Environmental Planning Policy (Coastal Management) 2018, cll 15, 16 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.12, 2.13, 4.6 State Environmental Planning Policy No 55—Remediation of Land (repealed), cl 7
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Colin Stewart Hamilton (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) R O’Gorman-Hughes (Respondent) Solicitors: Piper Alderman (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2021/344013