Thiessen Architects v Sutherland Shire Council - [2004] NSWLEC 480

Land and Environment Court

of New South Wales

CITATION: Thiessen Architects v Sutherland Shire Council [2004] NSWLEC 480

PARTIES:
Applicant:
Thiessen Architects Pty Ltd
Respondent:
Sutherland Shire Council

FILE NUMBER(S): 10507 of 2004

CORAM: Roseth SC

KEY ISSUES: Development Application :- Non-compliance with site amalgamation provisions
Non-compliance with FSR and height controls

LEGISLATION CITED:

CASES CITED: Breakers v Sutherland Shire Council, Appeal No 10845 of 2001;
Melissa Grech v Auburn Council [2004] NSWLEC 40;
Cornerstone Property Group v Warringah Shire Council [2004] NSW 189;
Karavellas v Sutherland Shire Council [2004] NSWLEC 251

DATES OF HEARING: 23/08/2004 to 25/08/2004

DATE OF JUDGMENT: 08/27/2004

LEGAL REPRESENTATIVES:
Mr G Newport, barrister
instructed by Mr S Patterson of Wilshire Webb
Ms S Duggan, barrister
instructed by Mr C Matheson, council solicitor

JUDGMENT:

- 10 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

27 August 2004

10507 of 2004 Thiessen Architect Pty Ltd v Sutherland Shire Council

1 SENIOR COMMISSIONER: This is an appeal against the deemed refusal of a development application to erect a mixed-use building containing commercial and residential use lot Pt 21 DP 4759, known as 19-21 Gerrale Street, Cronulla.

2 The site is an amalgamation of Nos 19 and 21 Gerrale Street. It has a total area of 1,710m2 and frontage to Gerrale Street to the east, and to Surf Lane to the west. Adjoining to the south is an eight-storey apartment building, No 23 Gerrale Street. Adjoining to the north are three allotments: No 17 Gerrale Street (at the corner of Ocean Grove Avenue), No 2 Ocean Grove Avenue, and an electricity substation at 4 Ocean Grove Avenue at its intersection with Surf Lane.

3 The applicant proposes to amalgamate 19 and 21 Gerrale Street, demolish the existing building and erect a 7-storey mixed use building containing a hotel on the ground floor, offices on the first floor and apartments above. Vehicular access to a three-storey basement carpark is from Gerrale Street.

4 Local Environmental Plan 2000 (LEP 2000) zones the site 9a Mixed Residential/Business, a zone in which the proposal is permissible with consent. Local Environmental Plan 2000 Amendment No 27 proposes, among other things, to change the definition of gross floor area. The Department of Infrastructure, Planning and Natural Resources has indicated that the amendment will be made in the 2004 comprehensive plan (see below). Draft Local Environmental Plan 2004 does not propose to change LEP 2000 in any significant way that is relevant to this application (other than the definition of gross floor area).

5 The Cronulla Centre Development Control Plan (the DCP) introduces detailed controls for development. It is common ground that the proposal does not meet controls for site amalgamation, height, Floor Space Ratio (FSR), and setbacks.

6 State Environmental Planning Policy 65 – Design of Residential Flat Development (SEPP 65) establishes principles for the design of apartment buildings.

7 The council submitted a Statement of Issues containing five…

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: [2004] NSWLEC 480
Decision Date: 08/27/2004

CaseChat Overview and Summary

In Thiessen Architects v Sutherland Shire Council, the Land and Environment Court of New South Wales assessed an appeal against the deemed refusal of a development application to construct a mixed-use building on a site at 19-21 Gerrale Street, Cronulla. The applicant, Thiessen Architects, proposed a 7-storey building that included a hotel on the ground floor, offices on the first floor, and apartments above, along with a three-storey basement carpark. The council argued that the proposal did not comply with the site amalgamation provisions, height controls, Floor Space Ratio (FSR), and setbacks as outlined in the Cronulla Centre Development Control Plan (DCP). The court had to determine whether the applicant's failure to fully amalgamate the site, the variations from the DCP’s controls, and the use of the ground floor as a hotel justified refusal of the application.

The court found that while the applicant had made reasonable efforts to acquire the additional sites required for full amalgamation, their failure to do so was not a reason for refusal as the remaining sites were not "isolated" and could still be developed in accordance with planning controls. However, the court held that the applicant’s failure to comply with the DCP’s height and FSR requirements was not justified. The court also concluded that using the ground floor as a hotel was inappropriate due to potential anti-social behaviour and noise complaints, despite amendments to the proposal to mitigate these issues. The court dismissed the appeal and refused the development application, finding that the non-compliance with the DCP’s height and FSR standards and the inappropriate use of the ground floor as a hotel were valid reasons for refusal. The exhibits were returned to the applicant.

Orders