Hooler v Sutherland Shire Council - [2008] NSWLEC 189

Land and Environment Court

of New South Wales

CITATION: Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189

PARTIES:
APPLICANTS:
Geoff Hooler & Denise Howell
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10678 of 2007; 11193 of 2007; 11013 of 2007

CORAM: Lloyd J

KEY ISSUES:
Development Consent :- consent subject to condition requiring demolition of original dwelling - condition accepted by erection of new dwelling - breach - dual occupancy - foreshore building line - relevance of policy objectives to ensure restoration of land below foreshore building line to a natural state
Building Certificate: - alterations and additions to original dwelling - effect of condition requiring demolition - existence of original dwelling is unlawful

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 80A, 96, 97, 149F
State Environmental Planning Policy No. 1 - Development Standards
Sutherland Shire Local Environmental Plan 1993 cl 14A
Sutherland Shire Local Environmental Plan 2006 cll 14A, 17, 18, 35, 36

DATES OF HEARING: 5 May 2008; 6 May 2007 & 7 May 2008

DATE OF JUDGMENT:
12 June 2008

LEGAL REPRESENTATIVES:
APPLICANTS:
M G Craig QC and A M Pickles (barrister)
SOLICITORS
P H Legal
RESPONDENT:
T F Robertson SC
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

- 11 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 12 June 2008

LEC Nos. 10678 of 2007; 11193 of 2007 & 11013 of 2007

HOOLER & ANOR v SUTHERLAND SHIRE COUNCIL [2008] NSWLEC 189

JUDGMENT

Background

1 HIS HONOUR: There are three appeals before the Court:

No 10678 of 2007 : an appeal under s 96 of the Environmental Planning and Assessment Act 1979 (“the Act”) against the refusal of an application to modify a development consent by deleting a condition (condition 15);

No. 11193 of 2007 : an appeal under s 97 of the Act against the refusal of a development application to use an existing dwelling on the land as a dual occupancy dwelling;

No. 11013 of 2007

2 By a notice of discontinuance dated 19 March 2008 the applicants proposed to discontinue the first of the appeals. The council did not and does not consent to the discontinuance.

3 The parties have raised nine separate questions of law, as well as questions of merit. The nine question of law have been conveniently assembled by the council into three groups covering the following topics:

(a) the effect of the development consent on the existing dwelling (questions 1, 2, 3, 4 and 7);

(b) whether dual occupancy as proposed is prohibited (questions 3(a), 5 and 6) and

Sutherland Shire Local Environmental Plan 2006

4 On 11 November 1998, the council granted the development consent in question for a proposal described as a “new dwelling”…

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 189
Decision Date: 12 June 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard three appeals brought by Geoff Hooler and Denise Howell against the Sutherland Shire Council. The first appeal concerns the refusal to modify a development consent to delete a condition requiring the demolition of the original dwelling. The second and third appeals are against the refusal of a development application for a dual occupancy dwelling and the refusal of a building certificate for alterations and additions to the existing dwelling, respectively. The court was required to decide whether the development consent required the demolition of the original dwelling, whether the dual occupancy as proposed was prohibited, and the proper construction of clauses 35 and 36 of the Sutherland Shire Local Environmental Plan 2006.

The court held that the development consent did require the demolition of the original dwelling, which was accepted by the erection of the new dwelling. The continued existence of the original dwelling was unlawful. The court found that the dual occupancy as proposed was prohibited because the original dwelling was not supposed to be there and its continued existence was unlawful. Furthermore, the court held that the proposals did not satisfy the exceptions provided by clause 18(4)(c) of the Sutherland Shire Local Environmental Plan 2006, which aims to ensure the restoration of land below the foreshore building line to a natural state and reduce the number of structures below any foreshore building line. Therefore, both the appeal under s 97 and the appeal under s 149F of the Environmental Planning and Assessment Act 1979 should be dismissed.

In conclusion, the court dismissed both the appeal under s 97 and the appeal under s 149F of the Environmental Planning and Assessment Act 1979. The court granted leave for the filing of a notice of discontinuance in the first appeal. The final orders of the court were that the application for development consent modification and the application for a building certificate be dismissed.

Orders