Land and Environment Court
New South Wales
Medium Neutral Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Hearing dates: 26, 27, 28 October 2010 Decision date: 21 January 2011 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed.
2. The application to modify development consent DA05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point is refused.
3. The exhibits are returned.
Catchwords: DEVELOPMENT MODIFICATION - Boatshed - Foreshore building line - Visual impact Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sutherland Local Environmental Plan 2000
Sutherland Local Environmental Plan 2006
State Environmental Planning Policy No 1 - Development StandardsCases Cited: Agostino v Penrith City Council [2010] NSWCA 20
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Currency Corporation Pty Ltd v Wyong Shire Council (2006) 155 LGERA 230
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Friends of Pryor Park Inc v Ryde City Council (Bignold J, 25 September 1995)
Gann v Sutherland Shire Council [2008] NSWLEC 157
Hooler v Sutherland Shire Council [2008] NSWLEC 189
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433
Pearse v Sharp [2007] NSWLEC 710
Reading Properties Pty Ltd v Auburn City Council (2007) 158 LGERA 116
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240Category: Principal judgment Parties: Greg O'Donnell (Applicant)
Sutherland Shire Council (Respondent)Representation: Mr A Pickles (Applicant)
Mr M Wright (Respondent)
Mr J Hannaford, Hannaford Lawyers (Applicant)
Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s): 10084 of 2010 10085 of 2010
Commissioner : These are two appeals under s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Sutherland Shire Council (the Council) of two applications to modify a development consent DA 05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point.
Modification application 09/0305 (Appeal No 10084 of 2010) sought approval for modification of the approved levels of the seawall, floor level of the boatshed, and roof ridge; the addition of skylights to the boatshed roof; and extension of the slab external to the boatshed at the upper level to support a planter box.
Modification application 09/0306 (Appeal No 10085 of 2010) sought approval for a pump out tank connected to the sewer; use of the existing sub structure support walls below the existing path and slab; demolition of the door penetration; and installation of a standard flush WC and wash facilities/shower.
The works proposed by the modification applications have for the most part been completed. On 16 June 2009 the Council issued an Order pursuant to s121B of the Act ordering the owners of the property to bring the unauthorised building work into compliance with the development approval DA05/1217…
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- Case
- [2011] NSWLEC 1007
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case involved whether the proposed modification to the development consent was permissible under the applicable planning laws and whether such a modification would have an adverse impact on the environment, including on the local community. The court was required to interpret the terms of the original development consent, assess the extent to which the proposed modifications deviated from that consent, and evaluate the environmental impact of the modifications as claimed by the Council.
The court dismissed the applicant's appeal and refused the application to modify the development consent. In reaching this decision, the court found that the proposed modifications would significantly deviate from the original consent and would have detrimental effects on the environment and the community. The court emphasised that the modifications sought would not be consistent with the conditions set out in the original approval and would likely cause harm that was not contemplated at the time of the initial consent. Consequently, the court ruled that the modification was not permissible.
Orders
Orders of the court
1. The appeal is dismissed.
2. The application to modify development consent DA05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point is refused.
3. The exhibits are returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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