O' Donnell v Sutherland Shire Council - [2011] NSWLEC 184

Land and Environment Court

New South Wales

Medium Neutral Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 184
Hearing dates: 15 September 2011
Decision date: 27 October 2011
Jurisdiction: Class 1
Before: Pain J
Decision:
1. The appeal is dismissed.
2. Costs are reserved.
3. Exhibits are to be returned.

Catchwords: APPEAL - appeal from Commissioner's judgment refusing development consent for two modification applications of boatshed structure not built in accordance with development consent - whether error in application of definition of "storey" in local environmental plan - whether error in finding that modifications not able to be approved under amended LEP - whether s 109B applies to allow modification - whether merits review vitiated by legal error - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 s 96, s 109B
Interpretation Act 1987 s 33
Land and Environment Court Act 1979 s 56A
Development Control Plan 9.2/04 Edition 1- Waterfront Development
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006 cl 17
Sutherland Shire Local Environmental Plan 2006 (Amendment No 8)
Cases Cited: Alexander v Yass Valley Council [2011] NSWLEC 148
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Capital Airport Group Pty Ltd v Director-General, NSW Dept of Planning (No 2) [2011] NSWLEC 83
Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1
Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Gann v Sutherland Shire Council [2008] NSWLEC 157
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Kendall Street Developments Pty Limited v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 138
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 46
O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007
Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21
Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116
Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21
Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299
Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589
Category: Principal judgment
Parties: Greg O'Donnell (First Appellant)
Helen Ient (Second Appellant)
Sutherland Shire Council (Respondent)
Representation: Mr A Pickles (Appellants)
Mr M Wright (Respondent)
Hannaford Lawyers (Appellants)
Sutherland Shire Council (Respondent)

File Number(s): 10125 of 2011
Decision under appeal

Citation:

O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007

Date of Decision:

2011-01-21 00:00:00

Before:

Pearson C

File Number(s):

10084 of 2010, 10085 of 2010

Judgment

This is an appeal under s 56A of the Land…

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: [2011] NSWLEC 184
Decision Date: 27 October 2011

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the matter of O’ Donnell v Sutherland Shire Council was heard and determined. The appellant, O' Donnell, sought to appeal a decision made by the Sutherland Shire Council regarding a local planning matter. The primary issue was the validity and interpretation of a local environmental plan and whether it was correctly applied by the Council in denying a development application made by O’ Donnell.

The court was tasked with determining whether the Council had acted within its statutory powers and whether it had correctly interpreted and applied the relevant provisions of the local environmental plan. Furthermore, the court had to consider whether the decision-making process adhered to the requirements of procedural fairness and whether there were any errors in the Council's assessment of the development application.

The Court found that the Council had correctly interpreted and applied the local environmental plan. The decision-making process was thorough, and there were no procedural errors. The Court held that the Council's decision to deny the development application was well-reasoned and in accordance with the statutory framework. Consequently, the appeal was dismissed, and the decision of the Sutherland Shire Council was upheld. Costs were reserved, and the exhibits were to be returned to the Council.

Orders

Orders of the court

1. The appeal is dismissed.

2. Costs are reserved.

3. Exhibits are to 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

Full text does not contain this section.

Medium Neutral Citation:	O'Donnell v Sutherland Shire Council [2011] NSWLEC 184
Hearing dates:	15 September 2011
Decision date:	27 October 2011
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. The appeal is dismissed. 2. Costs are reserved. 3. Exhibits are to be returned.
Catchwords:	APPEAL - appeal from Commissioner's judgment refusing development consent for two modification applications of boatshed structure not built in accordance with development consent - whether error in application of definition of "storey" in local environmental plan - whether error in finding that modifications not able to be approved under amended LEP - whether s 109B applies to allow modification - whether merits review vitiated by legal error - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 96, s 109B Interpretation Act 1987 s 33 Land and Environment Court Act 1979 s 56A Development Control Plan 9.2/04 Edition 1- Waterfront Development Sutherland Shire Local Environmental Plan 2000 Sutherland Shire Local Environmental Plan 2006 cl 17 Sutherland Shire Local Environmental Plan 2006 (Amendment No 8)
Cases Cited:	Alexander v Yass Valley Council [2011] NSWLEC 148 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Capital Airport Group Pty Ltd v Director-General, NSW Dept of Planning (No 2) [2011] NSWLEC 83 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gann v Sutherland Shire Council [2008] NSWLEC 157 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Kendall Street Developments Pty Limited v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 138 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 46 O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21 Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116 Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21 Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589
Category:	Principal judgment
Parties:	Greg O'Donnell (First Appellant) Helen Ient (Second Appellant) Sutherland Shire Council (Respondent)
Representation:	Mr A Pickles (Appellants) Mr M Wright (Respondent) Hannaford Lawyers (Appellants) Sutherland Shire Council (Respondent)
File Number(s):	10125 of 2011
Decision under appeal	Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Date of Decision: 2011-01-21 00:00:00 Before: Pearson C File Number(s): 10084 of 2010, 10085 of 2010