Sammut Developments Pty Ltd v Sutherland Shire Council - [2005] NSWLEC 529

Land and Environment Court

of New South Wales

CITATION:
Sammut Developments Pty Ltd v Sutherland Shire Council [2005] NSWLEC 529

PARTIES:
APPLICANT
Sammut Developments Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
10266 of 2005

CORAM:
Bly C

KEY ISSUES:
Development Application :- Residential flat building - floor space ratio - building height - residential amentity - loss of views - amenity and overshadowing

LEGISLATION CITED:
Sutherland Shire Local Environmental Plan 2000
Draft Sutherland Shire Local Environmental Plan 2004
Environmental Planning and Assessment Act 1979
State Environmenmtal Planning Policy No. 65

CASES CITED:
Deller Homes v Sutherland Shire Council [2004] NSWLEC 66;
Project Venture Developments v Pittwater Council [2005] NSWLEC 191;
Tenacity Consulting v Warringah Council [2004] NSWLEC 140;
Parsonage v Ku-ring-gai Council [2004] NSWLEC 347

DATES OF HEARING: 15-16/08/2005 and 19/08/2005

DATE OF JUDGMENT:

09/29/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Craig, SC
SOLICITORS
Maddocks
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 September 2005

10266 of 2005 Sammut Developments Pty Ltd v Sutherland Shire Council

JUDGMENT

The appeal

1 Commissioner: This appeal relates to Development Application No. 04/1127, which is for the demolition of two existing two-storey residential flat buildings and associated garage structure and the construction of a four-storey residential flat building with basement carparking (“the proposed building”) at 18 – 20 Coast Avenue, Cronulla. More particularly the proposal includes a single three-bedroom dwelling on each level. Each dwelling is to have three carparking spaces in the basement plus one visitor carparking space. Strata subdivision is also proposed

The site

2 The site comprises Lots 9 and 10, DP 4878. It is somewhat irregular in shape with a frontage of about 27 m to Coast Avenue, a frontage to The Esplanade of about 25 m and an area of 1,293 sq m. It falls approximately 3 m from the Coast Avenue frontage to The Esplanade.

3 The site is situated in close proximity to the South Cronulla coastline enjoying panoramic ocean and coastal views. The locality is characterised by a mix of high-density residential flat development of varying architectural styles and ages. These residential flat buildings range in height between two and nine-storeys. More particularly the site is adjoined to the south by a seven-storey residential flat building and to the north by a four-storey residential flat building. Opposite the site in Coast Avenue is a two-storey attached dual occupancy building and a nine storey residential flat building.

4 The site is zoned 2(c) Residential under Sutherland Shire Local Environmental Plan 2000 ("the LEP") and in this zone residential flat buildings are permissible with development consent. It is also situated in a Foreshore Scenic Protection Area. The objectives of the 2(c) zone are:

A high-density residential environment:
(a) in close proximity to the major shopping centres and railway stations, and
(b) with co-ordinated, efficient and economical development of residential flat buildings of high quality design, and
(c) where non-residential…

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: [2005] NSWLEC 529
Decision Date: 09/29/2005

CaseChat Overview and Summary

Sammut Developments Pty Ltd has appealed against the Sutherland Shire Council’s refusal to grant development consent for the demolition of two existing two-storey residential flat buildings and the construction of a four-storey residential flat building with basement car parking at 18-20 Coast Avenue, Cronulla. The appeal was heard over three days in August 2005 and this judgment was handed down on 29 September 2005. The applicant sought development consent for the construction of a four-storey residential flat building with basement car parking on a site of 1293 square metres situated in the 2(c) Residential zone. The application was refused on the basis that it exceeded the applicable maximum floor space ratio, exceeded the applicable maximum building height, contravened the applicable minimum lot size and width and had adverse impacts on residential amenity. The applicant argued that the proposed building would be of appropriate height, bulk and scale, would fit in with the streetscape and would not have unreasonable impacts on neighbouring properties. The applicant also argued that strict compliance with the floor space ratio development standard was not necessary in the circumstances and the objections should be dismissed. The applicant further submitted that the proposal would be in harmony with the buildings around it and the character of the street. The Court found that the proposed building would be of appropriate height, bulk and scale, would fit in with the streetscape and would not have unreasonable impacts on neighbouring properties. The Court also found that strict compliance with the floor space ratio development standard was not necessary in the circumstances and the objections should be dismissed. The Court further found that the proposed building would be in harmony with the buildings around it and the character of the street. The Court held that the appeal should be upheld and development consent should be granted subject to appropriate conditions. The Court found that the proposed building would be of appropriate height, bulk and scale and would fit in with the streetscape. The Court also found that the proposed building would not have unreasonable impacts on neighbouring properties. The Court further found that strict compliance with the floor space ratio development standard was not necessary in the circumstances and the objections should be dismissed. The Court held that the appeal should be upheld and development consent should be granted subject to appropriate conditions.

Orders