Sud v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sud v Sutherland Shire Council [2012] NSWLEC 1162

Hearing dates:

23 May and 7 June 2012

Decision date:

13 June 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to modification application number 11/0365 as detailed in the amended plans, exhibit A and subject to the conditions in exhibit 7 including condition M which states:

This modification does not approve the northern 3 m extension of the roof slab and supporting columns over the rear balcony, which was not approved in the development consent as originally granted.

(3)The exhibits will be returned upon written publication of this judgment.

Catchwords:

MODIFICATION APPEAL - extension of a concrete slab roof over rear first floor deck of a dwelling house - roof supported by columns - works not in accordance with development consent- retrospective approval of these works and other modifications under s96 of the EPA Act 1979 - bulk, scale, overlooking/privacy

Legislation Cited:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Development Control Plan 2006

Cases Cited:

1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685
North Sydney Council v Michael Stanley & Associated Pty Limited (1998) 97 LGERA 433

Category:

Principal judgment

Parties:

Veni Rani Sud (Applicant)

Sutherland Shire Council (Respondent)

Representation:

J Johnson (barrister) (Applicant)

R O'Gorman Hughes (barrister) (Respondent)
In person (Applicant)

J Amy (solicitor) (Respondent)
Sutherland Shire Council

File Number(s):

10206 of 2012

Judgment

1. The applicant Veni Rani Sud has partly built a dwelling, pool and garage on land at 215 Loftus Avenue, Loftus.

1. The works, however, are different to those approved by the development consent issued by Sutherland Shire Council on 28 August 2010 (DA 10/0119). To rectify that situation the applicant has lodged a modification application number (11/0365) under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) and seeks approval for the works as built and some other changes to the approved development.

1. The council did not approve the modification application because it considered that the cumulative impacts of the development are of a bulk and scale that is inconsistent with the objectives in Zone 4 - Local Housing which applies, and, the provisions of cll 48 and 49 of the Sutherland Shire Local Environmental Plan 2006 (LEP).

1. Clause 49 of the LEP requires the consent authority (in this case the Court) to consider specified matters before consenting to residential development. In this appeal the council submits subclauses (b) and (e) are of particular relevance. They state:

(b) the extent to which any adverse impact of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised,

(e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,

1. The council also refers the Court to cl 48 of the LEP…