Sutherland Shire Council v Foster - [2003] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Foster & Anor [2003] NSWLEC 2

PARTIES:
APPLICANT
Sutherland Shire Council
RESPONDENTS
Eric William Foster and Colleen Leola Foster

FILE NUMBER(S): 40002 of 2002

CORAM: Pain J

KEY ISSUES: Injunctions and Declarations :- whether residential flat building was being used for holiday or short-term accommodation

LEGISLATION CITED: County of Cumberland Planning Scheme Ordinance
Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 1993
Sutherland Local Environmental Plan 2000

CASES CITED: Foster v Sutherland Shire Council (2001) 115 LGERA 130;
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 71 LGRA 432

DATES OF HEARING: 20, 23/09/2002

DATE OF JUDGMENT:
09/24/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Ayling SC
SOLICITORS
Baker & McKenzie
RESPONDENT
Mr W Purdon (solicitor)

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40002 of 2002
Pain J
24 September 2002

SUTHERLAND SHIRE COUNCIL

v

ERIC WILLIAM FOSTER &
COLLEEN LEOLA FOSTER

Respondents

JUDGMENT

Introduction
1. The Council is seeking certain declarations and an order restraining activity by the Respondents, Eric William Foster and Colleen Leola Foster, in relation to their flat, Unit 201 in 4 Boorima Place, Cronulla, which is in a residential flat building known as Trade Winds (the building).

2. The declarations and orders sought by the Council are as follows:
(i) A declaration that the Respondents, use or permit to be used the premises being Lot 11 in Strata Plan 262 (comprising Unit 201 in the building known as 4 Boorima Place Cronulla) otherwise than for a purpose permitted by and in accordance with development consent 19/60 of 25 February 1960;
(ii) A declaration that the Respondents use or permit to be used the said premises otherwise than as a residential flat, alternatively otherwise than as a residential building, to wit for the purpose of the provision of holiday or other short-term accommodation; and
(iii) A declaration that the said use contravenes the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is consequently unlawful.
(iv) An order that the Respondents, their servants and agents be restrained from using or causing suffering or permitting to be used the premises being Lot 11 in Strata Plan 262 (comprising Unit 11 [sic] in the building known as 4 Boorima Place Cronulla) for the provision of holiday or other short-term accommodation.
(v) Costs.
(vi) Such further order or other relief as the nature of the case shall demand.

3. The Council has argued that, following the grant of Development Consent 19/60 in February 1960 pursuant to the County of Cumberland Planning Scheme Ordinance (the Ordinance), the building could be used only as a residential flat building and continues to be able to be used only on that basis. By that submission, the Council means that the use of the flats in the building should be as a permanent domicile or home.

4. The Council argued the Respondents had been using Unit 201…

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.

Keep reading for free

Create a free CaseChat account to read Sutherland Shire Council v Foster and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWLEC 2
Decision Date: 09/24/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Sutherland Shire Council brought an action against Eric William Foster and Colleen Leola Foster, seeking declarations and an order restraining the use of their residential flat for purposes other than those permitted by their development consent. The Council argued that the Fosters were using their flat for holiday or short-term accommodation, contrary to the terms of their development consent. The Fosters argued that their use of the flat complied with the objectives of the Sutherland Local Environmental Plan 2000.

The court was required to decide whether the use of the flat by the Fosters was in accordance with their development consent, which permitted use of the flat only as a permanent residential domicile. The court considered whether the Fosters had been using the flat for holiday or short-term accommodation, which was not permitted under the development consent. The court also had to determine whether the Fosters' use of the flat complied with the objectives of the Sutherland Local Environmental Plan 2000.

The court found that there was overwhelming evidence that the Fosters had attempted to use, and had actually used, Unit 201 for holiday and short-term accommodation from late 1999 to approximately March 2002, apart from a two-month tenancy period in mid-2001. The court found that the evidence presented by the Fosters that they were using the flat as a permanent home was insufficient. The court also found that the Fosters had continued to advertise the flat as holiday accommodation after a previous court decision that such use was not permitted.

The court made declarations that the Fosters had not been using Unit 201 in accordance with their development consent and that their use of the flat contravened the Environmental Planning and Assessment Act 1979. The court also considered making an order restraining the Fosters from using the flat for holiday or short-term accommodation, but deferred making a decision on the form of the order until the parties had an opportunity to discuss it further. The court reserved the question of costs and ordered that certain exhibits be returned, except for some that needed to remain with the Court.

Orders