Mandile v Sutherland Shire Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: Mandile v Sutherland Shire Council [2018] NSWLEC 1471
Hearing dates: 18 & 19 July 2018
Date of orders: 05 September 2018
Decision date: 05 September 2018
Jurisdiction:Class 1
Before: Adam AC
Decision:

The orders of the Court are:
(1)   The cl 4.6 variation request is dismissed;
(2)   The appeal is dismissed;
(3)   Development Application No. 17/0346 for construction of an inclinator is determined by refusal;
(4)   The Exhibits may be returned.

Catchwords: APPEAL: inclinator; cl 4.6 variation request; adequacy of information
Legislation Cited: Disability Discrimination Act 1992(Cth)
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Standard Instrument (Local Environmental Plans) Amendment (Vegetation) Order 2017
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
Sutherland Shire Development Control Plan 2015
Sutherland Shire Local Environmental Plan 2015
Cases Cited: Bazzi v Sutherland Shire Council [2017] NSWLEC 1603
Hamilton v Sutherland Shire Council [2012] NSWLEC 1015
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Modog Pty Limited v North Sydney Council [2018] NSWLEC 120
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Texts Cited: Nil
Category:Principal judgment
Parties: Francis Mandile (Applicant)
Sutherland Shire Council (Respondent)
Representation:

Counsel:
L-M Saw (Applicant)

  Solicitors:
J M Amy, Sutherland Shire Council (Respondent)
File Number(s): 2018/52359
Publication restriction: No

Judgment

  1. Absolute waterfront sites on Sydney’s waterways are highly prized, but, when combined with steep rugged topography and bushland, opportunities for development may be severely constrained, both by the physical nature of the land and by planning restrictions. Access through such a site may pose challenges for residents and their guests.

  2. This case is about a proposal from the applicant, Mr Mandile, to address an access problem within such a site. The site, within the suburb of Grays Point on the shores of Port Hacking, is situated at the eastern end of Mansion Point Road. The site has an area of 1072.6m2, with its long axis orientated east-west and is of a truncated wedge shape, with a southern boundary of 52.07m, a western boundary of 15.24m, a northern boundary of 48.93m and a curved eastern boundary of 26.80m following the mean high water mark. There is a fall from west to east of approximately 20m.

  3. To the south, there is another residential lot with similar topography. To the north is an undeveloped council road reserve which is largely bushland, but with some encroachments. On the site, there are currently, from west to east, a studio and garage, fronted by a car turning and parking area, a two storey dwelling and a boat shed with slipway, jetty and pontoon. The principal private open space is a level lawn area, below the residence and extending to the waterfront.

  4. Mr Mandile is seeking permission to install an inclinator running from the existing car parking area in front of the garage at the top of his property down to the boat shed and principal private open space at the waterfront. Existing…

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Details
Case
[2018] NSWLEC 1471
Decision Date

CaseChat Overview and Summary

The parties involved in the case were Mandile, the applicant, and Sutherland Shire Council, the respondent. The applicant sought a variation of planning conditions attached to a development consent and a refusal of a development application for the construction of an inclinator. The case was heard in the Land and Environment Court of New South Wales. The applicant contested the refusal of their development application and sought a variation to the planning conditions that had been imposed on their development consent.

The court was required to determine whether the applicant's development application should be approved, and if the variation of the planning conditions was warranted. The court also had to consider whether the Sutherland Shire Council's decision to refuse the development application was lawful and whether the applicant's arguments for a variation of the planning conditions were valid.

The court found that the applicant's development application should be refused as it did not meet the requirements of the relevant planning scheme. The court also determined that the variation of the planning conditions was not justified as it would have resulted in a change to the character of the area. The court found that the Sutherland Shire Council's decision to refuse the development application was lawful, and the applicant's arguments for a variation of the planning conditions were not persuasive. The court dismissed the appeal and the cl 4.6 variation request.

Orders

Orders of the court

The orders of the Court are:

(1) The cl 4.6 variation request is dismissed;

(2) The appeal is dismissed;

(3) Development Application No. 17/0346 for construction of an inclinator is determined by refusal;

(4) The Exhibits may be returned.

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

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