John Parkes v Sutherland Shire Council - [2006] NSWLEC 389

Land and Environment Court

of New South Wales

CITATION: John Parkes v Sutherland Shire Council [2006] NSWLEC 389

PARTIES:
APPLICANT
John Parkes
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10308 of 2006

CORAM: Brown C

KEY ISSUES: Appeal :- modification of approval for dwelling - roof form - effect on heritage item from view loss

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240

DATES OF HEARING: 29/06/06

DATE OF JUDGMENT:
07/06/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr B Phillips, solicitor
Of: Macedone Christie Willis Lawyers
RESPONDENT
Mr C Mathieson, solicitor
SOLICITORS
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 July 2006

10308 of 2006 John Parkes v Sutherland Shire Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council to modify, under s 96 of the Environmental Planning and Assessment Act 1979, Development Application No. 04/0300 for the erection of the erection of a dwelling at 4 Loch Lomond Crescent, Burraneer (the site).

2 The modification application relates to the change of the approved curved roof form to a more of traditional pitched roof form. The dwelling approved under Development Application No. 04/0300 has been erected with the roof form proposed in the modification application. In accordance with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, a s 96 application that relates to development that has already being carried out can be considered on its merits.

3 The site has a frontage to Loch Lomond Crescent and slopes from the street to the high watermark of Port Hacking.

4 The site is within the 2(e2) Residential zone of Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The site is located within a Foreshore Scenic Protection Area. The site is also within the vicinity of a heritage item in LEP 2000 identified as "Loch Lomond". The heritage item is located at 3 – 5 Loch Lomond Crescent, on the opposite side of the street and generally to the north east of the site. The description of the heritage item states:

Good Post-war house. Now fully rendered. Rounded projection, central two storey section. Single storey wing to one side with parapet forming balaustrade to roof deck. Prominently sited on sloping block.

5 Clause 14 of LEP 2000 states:

How are heritage items and relics protected?

(1) The following development may be carried out only with development consent:

(a) demolishing or damaging a heritage item,

(b) altering a heritage item by making structural changes to its exterior

(c) altering a heritage item by making non-structural changes to the detail, fabric, finish or appearance of its exterior, (d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic,

(e) erecting a building on, or subdividing, land on which a heritage item is located,

(f) development, other than exempt development, on…

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: [2006] NSWLEC 389
Decision Date: 06/07/2006

CaseChat Overview and Summary

John Parkes appealed against the Sutherland Shire Council's refusal to modify an approved development application for a dwelling at 4 Loch Lomond Crescent, Burraneer. The modification sought to change the approved curved roof form to a traditional pitched roof form, which had already been implemented. The site is within the 2(e2) Residential zone, a Foreshore Scenic Protection Area, and the vicinity of a heritage item known as "Loch Lomond," located opposite the site on Loch Lomond Crescent. The key issue was whether the modification would unacceptably impact the heritage item by obstructing views.

The court considered whether the proposed modification would significantly affect the heritage significance of Loch Lomond. Dr. Richard Lamb, representing the owners of Loch Lomond, argued that any additional development should be prohibited due to the severe impact already caused by surrounding developments. In contrast, Mr. Peter Lonergan, a heritage architect, contended that the modification would not significantly obscure views to or from the heritage item and would not adversely impact its significance. He provided a photomontage to illustrate the minimal difference in view loss between the approved and proposed roof forms.

The court accepted Mr. Lonergan's evidence, concluding that the additional view loss from the proposed modification would be largely unnoticeable given the existing panoramic views from Loch Lomond. The court also noted that the distance from the Royal National Park to the site and the general development around the heritage item meant that any view loss from this area would not be significant. Consequently, the court determined that the modification did not unacceptably impact the heritage item.

The court upheld the appeal, approving the modification to the roof form subject to specific conditions. The orders of the court confirmed the approval of the modification, subject to the conditions outlined in Annexure A.

Orders