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

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 Standards
Cases 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 240
Category: 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…

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 1007
Decision Date: 21 January 2011

CaseChat Overview and Summary

In the case of O'Donnell v Sutherland Shire Council, the applicant sought a modification to development consent that was previously granted for the construction of a boatshed, slipway, stub jetty, ramp, and pontoon at a specified location in Grays Point. The Sutherland Shire Council opposed the application, arguing that the modification would not align with the original development consent and would have adverse environmental impacts. The dispute was brought before the Land and Environment Court of New South Wales for resolution.

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

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 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 Standards
Cases 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 240
Category:	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