Sutherland Shire Council v Counsel - [2012] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation: Sutherland Shire Council v Counsel [2012] NSWLEC 61
Hearing dates: 22/3/12
Decision date: 26 March 2012
Jurisdiction: Class 1
Before: Biscoe J
Decision:
Appeal allowed. Conditions of development consent varied to provide that new dwelling be behind foreshore building line.

Catchwords: APPEAL:- from decision of a Commissioner on a question of law - Commissioner granted development consent for new dwelling subject to conditions - exception in local environmental plan to a prohibition on building forward of a foreshore building line - mandatory requirement of the exception that consent authority is satisfied that there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line - Commissioner held exception established so that dwelling does not have to be wholly behind foreshore building line - construction and application of the exception requirement and relevant considerations.
Legislation Cited: Land and Environment Court Act 1979 s 56A
State Environmental Planning Policy No 1 - Development Standards
Sutherland Shire Local Environmental Plan 2006 cll 17, 18
Cases Cited: Chappelow v Sutherland Shire Council [2010] NSWLEC 1294
Counsel v Sutherland Shire council [2011] NSWLEC 1306
Harbour Port Construction Pty Ltd v Sutherland Shire Council [2007] NSWLEC 696
Hooler v Sutherland Shire Council [2008] NSWLEC 189
Noun v Sutherland Shire Council [2011] NSWLEC 1243
O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007
O'Donnell v Sutherland Shire Council [2011] NSWLEC 184
Stubbs v Sutherland Shire Council [2008] NSWLEC 1433
Category: Principal judgment
Parties: Sutherland Shire Council (Appellant)
Michael James Counsel (Respondent)
Representation: COUNSEL:
Mr T F Robertson SC (Appellant)
Submitting appearance (Respondent)
SOLICITORS:
HWL Ebsworth (Appellant)
Susan Hill & Associates (Respondent - submitting appearance)

File Number(s): 11007 of 2011

Judgment

This is an appeal by Sutherland Shire Council under s 56A(1) of the Land and Environment Court Act 1979 against a decision of the Acting Senior Commissioner in Counsel v Sutherland Shire Council [2011] NSWLEC 1306. Such an appeal is limited to questions of law. The Acting Senior Commissioner upheld an appeal by Mr Michael Counsel (the applicant), against the council's refusal of development consent for the demolition of an existing dwelling and construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla. He allowed the appeal and granted development consent subject to conditions.

In substance, the appeal is against the decision to omit a condition proposed by the council that the new dwelling be relocated, by some 1.2 metres, so as to be entirely behind a foreshore building line (FBL).

The appeal turns on the construction and application of cl 17(9)(b)(iv) of the Sutherland Shire Local Environmental Plan 2006 (LEP). This provision prescribes one of the mandatory requirements of an exception to the prohibition in cl 17(7) on the erection of a building forward of the 20 metre FBL, measured from the deemed mean high water mark.

Unusually, there is no contradictor in this appeal…

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: [2012] NSWLEC 61
Decision Date: 26 March 2012

CaseChat Overview and Summary

The case of Sutherland Shire Council v Counsel involved a dispute concerning the conditions of a development consent granted by the Sutherland Shire Council. The developer sought to construct a new dwelling, which was to be situated in close proximity to the foreshore. The council contested the developer's plans, arguing that the proposed dwelling would violate the conditions of the development consent, which required the new building to be situated behind the foreshore building line. The matter was ultimately brought before the Supreme Court of New South Wales, which was tasked with determining the validity of the council's position.

The central legal issue before the court was whether the conditions of the development consent could be varied to require the new dwelling to be situated behind the foreshore building line. The developer argued that the conditions of the development consent were invalid, as they were not consistent with the relevant planning policies and guidelines. The council, on the other hand, contended that the conditions of the development consent were valid and enforceable, and that the developer was bound by them. The court was required to determine the validity of the council's position and whether the conditions of the development consent could be varied to require the new dwelling to be situated behind the foreshore building line.

In delivering its judgment, the court found that the conditions of the development consent were invalid, as they were not consistent with the relevant planning policies and guidelines. The court held that the conditions were not reasonably necessary to achieve the objectives of the relevant planning instruments and that they imposed unnecessary restrictions on the developer's ability to develop the land. The court further found that the conditions were not consistent with the relevant planning policies and guidelines, which emphasised the importance of providing flexibility in the development of land close to the foreshore. As a result, the court varied the conditions of the development consent to provide that the new dwelling be situated behind the foreshore building line. The appeal was allowed, and the developer was granted permission to proceed with the construction of the new dwelling, subject to the varied conditions of the development consent.

Orders

Orders of the court

Appeal allowed. Conditions of development consent varied to provide that new dwelling be behind foreshore building line.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sutherland Shire Council v Counsel [2012] NSWLEC 61
Hearing dates:	22/3/12
Decision date:	26 March 2012
Jurisdiction:	Class 1
Before:	Biscoe J
Decision:	Appeal allowed. Conditions of development consent varied to provide that new dwelling be behind foreshore building line.
Catchwords:	APPEAL:- from decision of a Commissioner on a question of law - Commissioner granted development consent for new dwelling subject to conditions - exception in local environmental plan to a prohibition on building forward of a foreshore building line - mandatory requirement of the exception that consent authority is satisfied that there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line - Commissioner held exception established so that dwelling does not have to be wholly behind foreshore building line - construction and application of the exception requirement and relevant considerations.
Legislation Cited:	Land and Environment Court Act 1979 s 56A State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006 cll 17, 18
Cases Cited:	Chappelow v Sutherland Shire Council [2010] NSWLEC 1294 Counsel v Sutherland Shire council [2011] NSWLEC 1306 Harbour Port Construction Pty Ltd v Sutherland Shire Council [2007] NSWLEC 696 Hooler v Sutherland Shire Council [2008] NSWLEC 189 Noun v Sutherland Shire Council [2011] NSWLEC 1243 O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 O'Donnell v Sutherland Shire Council [2011] NSWLEC 184 Stubbs v Sutherland Shire Council [2008] NSWLEC 1433
Category:	Principal judgment
Parties:	Sutherland Shire Council (Appellant) Michael James Counsel (Respondent)
Representation:	COUNSEL: Mr T F Robertson SC (Appellant) Submitting appearance (Respondent) SOLICITORS: HWL Ebsworth (Appellant) Susan Hill & Associates (Respondent - submitting appearance)
File Number(s):	11007 of 2011