Stewart v Sutherland Shire Council - [2022] NSWLEC 1595

Land and Environment Court

New South Wales

Medium Neutral Citation: Stewart v Sutherland Shire Council [2022] NSWLEC 1595
Hearing dates: 5 September 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Class 1
Before: AC Harding
Decision:
The Court orders that:
(1) The Applicants written request, pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the Development Standard for site area for a Dual Occupancy development, is upheld.
(2)   The Appeal is upheld.
(3)   The Development Application No.20/0763 seeking Development Consent for the demolition of the existing dwelling and associated structures and then the construction of a two-storey attached dual occupancy development to be undertaken at 23 Woodlands Road, Taren Point, legally described as Lot 1 in DP 511429, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.
(4)   The exhibits are to be returned except for Exhibits A, D and 1.

Catchwords:
APPEAL – Development Application – Attached Dual Occupancy - Prohibition or Development Standard

Legislation Cited:
Environmental Planning and Assessment Act, 1979, cll 1.4, 4.15, 8.7
Land and Environment Court Act 1979, s 34AA.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
Sutherland Shire Local Environmental Plan 2015, cll 4.1E, 4.6, 6.1, 6.2, 6.4, 6.16, 6.17, Sch 1 cl 28

Cases Cited:
Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380.
North Sydney Municipal Council v Mayoh (no.2) (1990) 71 LGRA 222.
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319.
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827.
Woollahra Municipal Council v Carr (1985) 62 LGRA 263.

Category: Principal judgment
Parties: Andrew Stewart (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
A Stewart (Solicitor)(Applicant)
J Amy (Solicitor)(Respondent)
Solicitors:
Andrew Stewart
Sutherland Shire Council (Respondent)

File Number(s): 2022/75840
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act, 1979 (EPA act) by Andrew Stewart the (Applicant) against the actual refusal of the Development Application No. 20/0763. The application is for the demolition of the existing dwelling and associated structures and the construction of a two-storey attached dual occupancy development, two swimming pools, landscaping, and other associated works.
The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 5 September 2022. The parties failed to reach an agreement during the conciliation process that would be acceptable to the parties. Accordingly, the conciliation was terminated, and the matter proceeded to hearing on the same day.
At the hearing, the parties agreed that there was only one issue that prevented the parties reaching an agreement. This was a jurisdictional issue as to whether the proposal, as a dual occupancy…

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: [2022] NSWLEC 1595
Decision Date: 27 October 2022

CaseChat Overview and Summary

In the case of Stewart v Sutherland Shire Council, the applicants sought a variation to the Development Standard for site area for a Dual Occupancy development under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015. The applicants appealed the decision of the Sutherland Shire Council to refuse their development application for a two-storey attached dual occupancy on Lot 1 in DP 511429 at 23 Woodlands Road, Taren Point. The appeal was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the applicants' request for a variation to the Development Standard for site area for a Dual Occupancy development was valid under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015, and whether the appeal against the refusal of the development application should be upheld. The court was required to consider the relevant statutory provisions and the merits of the appeal.

The court held that the applicants' request for a variation to the Development Standard for site area for a Dual Occupancy development was valid under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015. The court found that the applicants had demonstrated that the proposed development would not result in any significant adverse impacts on the surrounding environment or community. The court also held that the appeal against the refusal of the development application should be upheld, and that the development consent should be granted subject to certain conditions. The court found that the proposed development was in accordance with the relevant planning instruments and that the benefits of the development outweighed any potential adverse impacts.

The court made several orders, including that the applicants' request for a variation to the Development Standard for site area for a Dual Occupancy development be upheld, that the appeal be upheld, and that the development consent be granted subject to certain conditions. The court also ordered that the exhibits be returned except for certain documents. The decision provides guidance on the interpretation and application of cl 4.6 of the Sutherland Shire Local Environmental Plan 2015, and the factors that should be considered when determining development applications for Dual Occupancy developments.

Orders

Orders of the court

The Court orders that:

(1) The Applicants written request, pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the Development Standard for site area for a Dual Occupancy development, is upheld.

(2) The Appeal is upheld.

(3) The Development Application No.20/0763 seeking Development Consent for the demolition of the existing dwelling and associated structures and then the construction of a two-storey attached dual occupancy development to be undertaken at 23 Woodlands Road, Taren Point, legally described as Lot 1 in DP 511429, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

(4) The exhibits are to be returned except for Exhibits A, D and 1.

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:	Stewart v Sutherland Shire Council [2022] NSWLEC 1595
Hearing dates:	5 September 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Class 1
Before:	AC Harding
Decision:	The Court orders that: (1) The Applicants written request, pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the Development Standard for site area for a Dual Occupancy development, is upheld. (2) The Appeal is upheld. (3) The Development Application No.20/0763 seeking Development Consent for the demolition of the existing dwelling and associated structures and then the construction of a two-storey attached dual occupancy development to be undertaken at 23 Woodlands Road, Taren Point, legally described as Lot 1 in DP 511429, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”. (4) The exhibits are to be returned except for Exhibits A, D and 1.
Catchwords:	APPEAL – Development Application – Attached Dual Occupancy - Prohibition or Development Standard
Legislation Cited:	Environmental Planning and Assessment Act, 1979, cll 1.4, 4.15, 8.7 Land and Environment Court Act 1979, s 34AA. State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021 Sutherland Shire Local Environmental Plan 2015, cll 4.1E, 4.6, 6.1, 6.2, 6.4, 6.16, 6.17, Sch 1 cl 28
Cases Cited:	Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380. North Sydney Municipal Council v Mayoh (no.2) (1990) 71 LGRA 222. Strathfield Municipal Council v Poynting (2001) 116 LGERA 319. Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. Woollahra Municipal Council v Carr (1985) 62 LGRA 263.
Category:	Principal judgment
Parties:	Andrew Stewart (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Stewart (Solicitor)(Applicant) J Amy (Solicitor)(Respondent) Solicitors: Andrew Stewart Sutherland Shire Council (Respondent)
File Number(s):	2022/75840
Publication restriction:	No