Miller v Sutherland Shire Council

Land and Environment Court

of New South Wales

CITATION:

Miller v Sutherland Shire Council [2007] NSWLEC 700

PARTIES:

APPLICANT:
John Miller

FIRST RESPONDENT:
Sutherland Shire Council

SECOND RESPONDENT:
Anthony Kenneth Fairclough

THIRD RESPONDENT:
Martina Fairclough

FOURTH RESPONDENT:
Catherine Smythe trading as Brook & Byrne Waterfront Constructions

FILE NUMBER(S):

40525 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Judicial Review :- validity of development consent - failure to notify development application in accordance with provision of a development control plan as required by s 79A(2) of the Environmental Planning and Assessment Act 1979

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 79A(2), 101
Land and Environment Court Act 1979 s 25B

CASES CITED:

Doueihi v Canterbury City Council (2003) 133 LGERA 138;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207

DATES OF HEARING:

11 and 12 October 2007

EX TEMPORE JUDGMENT DATE:

12 October 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P R Clay and Mr R O'Gorman-Hughes, barristers
SOLICITORS:
Haydon Fowler Corbett Jessop

SECOND,THIRD AND FOURTH RESPONDENTS:
Mr T Rickard, barrister
SOLICITORS:
Simmons & McCartney

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

12 October 2007

40525 of 2007

MILLER v SUTHERLAND SHIRE COUNCIL & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a challenge to the validity of a development consent granted on 29 June 2004 by Sutherland Shire Council, the first respondent, to the construction of a jetty and associated ramps and steps which would service the second and third respondents’ waterfront residential property at 20 Moombara Crescent, Lillii Pilli.

2 At all material times the applicant and his wife have been the second and third respondents’ next door neighbours and the owners of 22 Moombara Crescent, Lilli Pilli. On 12 September 2003 a development application was lodged by the fourth respondent for a shared jetty and associated steps and ramps on the applicants’ property, the second and third respondents’ property and the land below mean high water mark adjacent to both properties.

3 Development consent was required pursuant to the Sutherland Shire Local Environmental Plan 2000. The Statement of Environmental Effects lodged in support of the application stated that with the application was a copy of a written consent from Mr Miller (the applicant in these proceedings), as owner of 22 Moombara Crescent, for the shared structure. In fact no such consent was attached.

4 On 16 September 2003 the council wrote to the fourth respondent requesting that she provide the authorisation of the owners of the applicant’s property to the lodgement of the development application. The application was subsequently amended on 9 October 2003 to delete the applicant’s property from the description of the land proposed to be developed. As I have said, on 29 June 2004 the council purported to grant consent.

5 Condition 1 of the consent required the development to be implemented in accordance with three specified plans. There appear to be inconsistencies between two of those plans as to the precise location of…