Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189

Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189

The 1998 development consent, properly construed by reference to the approved plans and condition 15, required demolition of the original waterfront dwelling. Because the new dwelling had been completed and occupied, that obligation had crystallised, the consent bound the applicants as successors in title, and the continued existence of the original dwelling was unlawful. The proposed dual occupancy use and the building certificate for alterations and additions should be refused because retention of the dwelling below the foreshore building line did not satisfy the relevant exceptions in cll 17 and 18 of Sutherland Shire Local Environmental Plan 2006 and was contrary to the objectives of...

Jurisdiction
Australia
Judgment Date
12 June 2008
Procedural Posture
Three Appeals Under Ss 96, 97 and 149 F of the Environmental Planning and Assessment Act 1979 Concerning Modification of Development Consent, Refusal of a Development Application for Dual Occupancy Use, and Refusal of a Building Certificate. / Judgment on Appeals
Outcome
Leave was granted to file a notice of discontinuance in proceeding No. 10678 of 2007; the applications in proceedings No. 11193 of 2007 and No. 11013 of 2007 were dismissed.
Legal Topics
['demolition Condition' 'dual Occupancy' 'foreshore Building Line' 'modification of Development Consent' 'unlawful Existing Dwelling' 'restoration of Foreshore Land']
['planning and Environment Law' 'development Consent' 'building Certificates'] ['demolition Condition' 'dual Occupancy' 'foreshore Building Line' 'modification of Development Consent' 'unlawful Existing Dwelling' 'restoration of Foreshore Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Three Appeals Under Ss 96, 97 and 149 F of the Environmental Planning and Assessment Act 1979 Concerning Modification of Development Consent, Refusal of a Development Application for Dual Occupancy Use, and Refusal of a Building Certificate. / Judgment on Appeals

Legal Issues

  1. 1 ['Whether development consent No. 99/0800 required demolition of the waterfront cottage.' 'Whether the obligation to demolish the waterfront cottage had crystallised and bound the current applicants as successors in title.' 'Whether the proposed dual occupancy should be approved.' 'Whether a building certificate should issue for alterations and additions to the existing dwelling.' 'Whether cll 17 and 18 of Sutherland Shire Local Environmental Plan 2006 precluded consent for retention or use of the dwelling below the foreshore building line.']

Ratio Decidendi

The 1998 development consent, properly construed by reference to the approved plans and condition 15, required demolition of the original waterfront dwelling. Because the new dwelling had been completed and occupied, that obligation had crystallised, the consent bound the applicants as successors in title, and the continued existence of the original dwelling was unlawful. The proposed dual occupancy use and the building certificate for alterations and additions should be refused because retention of the dwelling below the foreshore building line did not satisfy the relevant exceptions in cll 17 and 18 of Sutherland Shire Local Environmental Plan 2006 and was contrary to the objectives of...

Court Disposition

Leave was granted to file a notice of discontinuance in proceeding No. 10678 of 2007; the applications in proceedings No. 11193 of 2007 and No. 11013 of 2007 were dismissed.

Orders

  • ['No. 10678 of 2007: Leave is granted for the filing of a notice of discontinuance.' 'No. 11193 of 2007: The application is dismissed.' 'No. 11013 of 2007: The application is dismissed.']