Malas Development Pty Ltd v Sutherland Shire Council - [1999] NSWLEC 74

Land and Environment Court

of New South Wales

CITATION:

Malas Development Pty Ltd V Sutherland Shire Council [1999] NSWLEC 74

PARTIES

Applicant
Malas Development Pty Ltd

Respondent
Sutherland Shire Council

NUMBER:

10765 of 1998, 10028 of 1999 &30021 of 1999

CORAM:

Sheahan J

KEY ISSUES:

:- Development control plan - whether development comprises "dual occupancy"
Preliminary Question of Law

LEGISLATION CITED:

Development control plan - whether development comprises "dual occupancy"
Preliminary Question of Law

DATES OF HEARING:

02/10/1999

DATE OF JUDGMENT DELIVERY:

03/31/1999

LEGAL REPRESENTATIVES:

Applicant
Mr S Brockwell (Barrister)
Respondent
Mr S Berveling (Solicitor)

JUDGMENT:

IN THE LAND AND Matter Nos: 10765 of 1998
ENVIRONMENT COURT 10028 of 1999 & 30021 of 1999
OF NEW SOUTH WALES Coram: Sheahan J
31 March 1999

MALAS DEVELOPMENTS PTY LIMITED
Applicant
v
SUTHERLAND SHIRE COUNCIL
Respondent

1. Introduction
1. There are two Class 1 and one Class 3 applications listed together for the determination of four preliminary questions of law, which could be decisive of all the proceedings.

2. The proceedings concern two adjacent lots of land, being Lot 3 of Deposited Plan 978584 (also known as 32 Burraneer Bay Road, Cronulla) (“Lot 3”), and Lot B of Deposited Plan 449014 (also known as 34 Burraneer Bay Road, Cronulla) (“Lot B”).

3. Both lots are within the Sutherland Shire Council local government area and subject to the Sutherland Shire Local Environmental Plan 1993 (Exhibit S3) (“the LEP”), as amended, under which both lots are zoned Residential 2(e1). Development for the purposes of a townhouse or a villa house is prohibited in that zone.

4. Malas Developments Pty Ltd (“Malas”) sought the consent of Sutherland Shire Council (“Council”) to erect four dwellings on the two lots, and to rearrange the lot boundaries by way of “re-subdivision”. The two lots are currently aligned in a north westerly direction, facing Burraneer Bay Road, Cronulla, and it is proposed that they have an easterly orientation, fronting the adjacent Dodson Avenue (Exhibit S2) (see Annexure ‘A’ to this judgment).

5. The following four applications were lodged with the Council in relation to the proposal:
(a) A development application dated 5 May 1998 relating to Lot 3, for a proposal “to build dual occupancy” (DA 980939);
(b) A development application dated 5 May 1998 relating to Lot B, for a proposal “to build dual occupancy” (DA 980940);
(c) A subdivision application dated 18 May 1998 under Part XII of the Local Government Act 1919; and
(d) An application under State Environmental Planning Policy No. 4 (‘SEPP 4’) dated 18 May 1998 for an exemption from consent for a boundary adjustment between the two lots.
6. The plans which accompanied both DA 980939 and DA 980940 were identical and each set related to both Lot 3 and Lot B.

7. A notice of determination was issued by the Council on 29 October 1998 refusing both DA 980939 and DA 980940. These refusals led to the two Class 1 applications being filed on 5 November 1998…

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: [1999] NSWLEC 74
Decision Date: 31 March 1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered a case between Malas Developments Pty Ltd and Sutherland Shire Council regarding the interpretation of zoning and development control provisions in the Sutherland Shire Local Environmental Plan 1993. The applicant, Malas, sought approval for the construction of four dwellings on two lots of land, including a re-subdivision of the lots to change their orientation. The primary legal issues before the court involved determining whether the proposed development constituted dual occupancy housing, whether it was considered development for townhouses or villa houses, if the proposed development was prohibited, and whether the proposed subdivision could benefit from an exemption under State Environmental Planning Policy No. 4.

The court found that the development applications and the subdivision application should be considered concurrently, leading to the conclusion that the proposals did indeed comprise development for the purposes of dual occupancy. The court held that although the proposed development contained three levels per dwelling, it did not contravene the development control plan's height limitations and was not prohibited. Furthermore, the court ruled that the proposed subdivision could obtain the benefit of the exemption under clause 6 of SEPP 4, as the boundary changes did not involve the creation of additional allotments and could be considered an adjustment.

In summary, the court answered the preliminary questions of law in favour of Malas, finding that the proposed development qualified as dual occupancy housing, was not considered prohibited development, and could benefit from the exemption under SEPP 4. The court's decision directed the three matters to be included in the Registrar's callover list for further disposition in accordance with the answers given to the questions of law.

Orders