Stubbs v Sutherland Shire Council - [2008] NSWLEC 1433

Land and Environment Court

of New South Wales

CITATION: Stubbs and anor v Sutherland Shire Council [2008] NSWLEC 1433

PARTIES:
APPLICANT
Barry Norman Stubbs and Julie Gwenyth Kirby
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10462; 10463 of 2008

CORAM: Brown C

KEY ISSUES: Development Application :- construction of a dwelling - breach of foreshore building line - visual impact - weight to be given to existing dwelling and previous approval - bulk/scale/height - Building Certificate - unauthorised basement construction

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 2006

DATES OF HEARING: 25,26/09/08

DATE OF JUDGMENT:
31 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, barrister
SOLICITORS
Solari Legal
RESPONDENT
Mr M Wright, barrister
SOLICITORS
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 October 2008

10462, 10463 of 2008 Barry Norman Stubbs and Julie Gwenyth Kirby v Sutherland Shire Council
JUDGMENT

1 COMMISSIONER: The two appeals relate to the property at 167 Georges River Road, Oyster Bay (the site). Appeal No 10462 of 2008 is an appeal against the refusal by Sutherland Shire Council (the council) of DA 07/1354 for the construction of a dwelling.

2 Appeal No 10463 of 2008 is an appeal against the refusal by the council of Building Certificate application BC 07/0175 for the construction of a concrete floor slab, concrete roof and supporting walls. The parties agreed that the appeals should be heard concurrently.

The site

3 The site has a frontage to the Georges River and Georges River Road. It is accessed via a right of carriageway that runs from Georges River Road and traverses the adjoining property at 169 Georges River Road. The site is generally rectangular in shape having a depth of 80.71 m on its eastern side, 85.05 m on its western side, a width of approximately 12.75 m including a northern boundary of the mean high water mark (MHWM) of the Georges River, giving a total site area of 1031 sq m. The site falls some 23 m from Georges River Road to the Georges River.

Background

4 The site originally contained a dwelling house (the original dwelling) located between 2.2 m and 3.5 m from the MHWM. The original dwelling contained a basement identified as being used as a storeroom and two residential levels of accommodation.

5 On 2 June 2004, development consent was granted to DA 04/0354 for alterations and additions to the original cottage. The assessment was undertaken through the provisions of Sutherland Local Environmental Plan 2000 (LEP 2000) that applied at the time. LEP 2000 provided for a 20 m foreshore building line (FBL) measured from the MHWM. The salient features of the development consent provided for the retention of the existing basement (around 12.2 sq m), the reconfiguration of the lower floor plan and additional floor area for the upper floor plan. The setback to the MHWM remained unchanged. The Notes to the development consent stated that the consent is to lapse unless the…

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: [2008] NSWLEC 1433
Decision Date: 31 October 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dismissed the two appeals brought forth by Barry Norman Stubbs and Julie Gwenyth Kirby against the Sutherland Shire Council. The first appeal, No 10462 of 2008, concerns the refusal by the council of a development application (DA 07/1354) for the construction of a dwelling on a property located at 167 Georges River Road, Oyster Bay. The second appeal, No 10463 of 2008, pertains to the council's refusal of a Building Certificate application (BC 07/0175) for the construction of a concrete floor slab, concrete roof, and supporting walls. The court found that the proposed dwelling did not comply with the requirements of clause 17(9) of the Sutherland Local Environmental Plan 2006 (LEP 2006). The applicant argued that the proposed dwelling created no more impact than the previously approved alterations and additions, but the court determined that the previous approval should not outweigh the need to assess the development application as a new dwelling under LEP 2006. The court also found that the proposed dwelling did not satisfy three of the four criteria in clause 17(9)(b) of LEP 2006, and therefore, development consent could not be granted. The court did not address the non-compliance with the breach of the height requirement in clause 33. Regarding the Building Certificate, the court confirmed the council's refusal of the application, stating that the unapproved constructed basement level was inconsistent with several objectives in clause 17 of LEP 2006 and should be removed. However, the court suggested considering whether the constructed basement area could be included as part of any residential development of the site with modifications to increase landscaping below the foreshore building line and reduce the prominence of the structure from the Georges River.

Orders