Noun v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Noun v Sutherland Shire Council [2011] NSWLEC 1243

Hearing dates:

24 August 2010, 18 November 2010, 11 and 12 January and 7 April 2011

Decision date:

17 August 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA 09/0685 subject to deferred commencement condition 1 and the other conditions originally imposed by the council on 21 September 2009.

(3)An electronic version of the conditions is to be forwarded to the Court within 7 days of this judgment.

(4)The exhibits are returned.

Catchwords:

Development consent - modifications to property and the power to impose a conditions requiring the removal of a boatshed and fender piles located below the MHWM - relevance of policy objectives to ensure restoration of land below the foreshore building line to a natural state.

Legislation Cited:

Sutherland Shire Local Environment Plan 2006
Sutherland Shire Development Control Plan 2006

Cases Cited:

Hooler v Sutherland Shire Council [2008] NSWLEC 189
J&R Cox Planning and Design Services Pty Ltd v Sutherland Shire Council (unreported decision) Appeal No: 11170 of 2000 per Dr J Roseth SC 25 July 2001

Category:

Principal judgment

Parties:

Debra Ann Noun (Applicant)

Sutherland Shire Council (Respondent)

Representation:

Counsel
Mr Tomasetti SC (Applicant)

Mr T Robertson SC (Respondent)
Solicitors
MCW Lawyers (Applicant)
Mr B Phillips (lawyer)

Sutherland Shire Council (Respondent)
Ms J Amy (lawyer)

File Number(s):

10391 of 2010

Judgment

Background

1. Dr and Mrs Noun seek development consent to make modifications to their home at 75 Baliga Avenue, Caringbah. The modifications include: installation of glazing to enclose the rear ground floor balcony, construction of a vergola roof over a first floor balcony, construction of a landing outside the laundry, plus alteration to the garage and addition to the front fence.

1. The property is on the foreshore of Yowie Bay and comprises land owned by the applicant and land occupied by the applicant with permission from the Crown. Erected on the property are a two-storey dwelling house, detached garage and a swimming pool. According to the survey plan of S J Dixon Associates, part of the pool is located beyond the mean high water mark and like the boatshed, ramp, slip rails, jetty and floating pontoon is on Crown land.

1. Prior to the applicant's purchase of the property, Sutherland Shire Council issued development consent (DA99/1793) for renovations to the dwelling house and pool. Condition 18 of that consent required the demolition of the boatshed within 10 years of the date of the approval.

1. While the renovations were completed, the boatshed has not yet been removed .

1. It is against this background that the applicant lodged the development application, which is the subject of this appeal (DA 09/0685). The applicant told the Court that the modifications proposed in this application are to insulate the property from exposure to the elements, particularly from the southern side, where during heavy rains and winds, water gets in through the windows and doors.

1. While the…