Hunter v Sutherland Shire Council - [2008] NSWLEC 1115

Land and Environment Court

of New South Wales

CITATION: Hunter v Sutherland Shire Council [2008] NSWLEC 1115

PARTIES:
APPLICANT
John Hunter
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10674 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- subdivision of 1 lot into 2, landscaping, drainage, loss of trees, geotechnical, overlooking/privacy, topography, zoning, character and amenity of area, overshadowing, streetscape and impact when viewed from foreshore.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006
State Environmental Planning Policy No. 1

CASES CITED: Uniting Church Australia Property Trust (NSW) v Sutherland Shire Council (2005) NSWLEC 289
Winten Property Group v North Sydney Council (2001) 130 LGERA 79
Wehbe v Pittwater Council (2007) NSWLEC 827
Memel Holdings Pty Limited v Pittwater Council (No 3) [2001] NSWLEC 240
Inghams Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA A68
Shoalhaven City Council v Lovell (1996) 136 FLR 58.
Parrott v Kiama (2004) NSWLEC 77

DATES OF HEARING: 24 - 25/01/2008 and 29/01/2008

EX TEMPORE JUDGMENT DATE: 29 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mrs M-L Taylor, solicitor
of Bartier Perry
RESPONDENT
Mr J. Cole, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

29 January 2008
10674 of 2007 John Hunter v Sutherland Shire Council
This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an extempore judgment for an appeal that I heard last Thursday and Friday. The subject lot is known as 30 Boomerang Avenue, Lilli Pilli. The Statement of Facts and Contentions outlines the proposed development and the issues in dispute.

2 The development application is for the subdivision of an existing allotment, being lot 51 in DP 1021183. The subject site has a total size of some 2,056 square metres. The subdivision would result in one waterfront allotment, where there is an existing substantial dwelling erected in a formal landscaped setting with improvements/development on the waterfront of a jetty, pontoon and boatshed. The second proposed lot is at the rear portion of the site where it has a side boundary adjoining the bulb of the cul-de-sac. The development would, provide for two allotments: one allotment being 850.2 square metres and the other allotment with water frontage being 1,206 square metres.

3 The history of the application is outlined in council’s Facts and Contentions although I emphasise that I am looking at the merits of this development application for the subdivision. In summary the subject land was originally part of a very large allotment with access from Gundawarra Street. A dual occupancy development was approved by the Court to allow the construction of the waterfront dwelling with access from Boomerang Avenue, and the remainder of land had access off Gundawarra Street. In 1999 Counicil granted development consent for the subdivision of the dual occupancy into two Torrens title allotments each containing a dwelling.

4 The locality is a low density residential area in…

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.

Continue reading Hunter v Sutherland Shire Council

Details

AGLC: Hunter v Sutherland Shire Council [2008] NSWLEC 1115
Case: [2008] NSWLEC 1115
Decision Date: 29 January 2008

CaseChat Overview and Summary

The case of Hunter v Sutherland Shire Council involves an appeal against the refusal of a development application to subdivide a lot at 30 Boomerang Avenue, Lilli Pilli. The applicant, John Hunter, sought to subdivide his property into two allotments, one of which would be a narrow vacant lot at the end of a cul-de-sac. The primary issues before the court were whether the proposed subdivision complied with the zoning requirements and local environmental plan provisions, particularly concerning the minimum width of the proposed lots, the impact on the streetscape, and the environmental sensitivity of the area. The Sutherland Shire Council opposed the application, citing concerns about the loss of vegetation, overshadowing, and the overall character of the area.

The court assessed the application under the State Environmental Planning Policy No. 1 (SEPP 1), which allows for variations to development standards in certain circumstances. The court found that the proposed subdivision did not meet the objectives of the SEPP 1 policy, particularly the requirement for adequate widths and depths to enable suitable development. The applicant argued that the variation was justified due to the unusual shape of the site, but the court was not persuaded that the objectives of the policy were met in this case. Additionally, the court concluded that the proposed vacant lot would create an additional layer of built form that would not be sympathetic to the environmentally sensitive area, leading to a refusal of consent on merits grounds as well.

In summary, the court dismissed the appeal, denied the SEPP 1 objection, and refused consent for the proposed subdivision. The court emphasized the need to preserve the natural qualities of the area and ensure that any future development would be in keeping with the environmental and scenic values of the locality. The orders of the court included the dismissal of the appeal, the refusal of consent for the development application, and the return of the exhibits to the parties.

Orders