O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007

O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007

The modification applications cannot be approved because the resulting two storey structure is not a 'boatshed' as defined in the Sutherland Shire Local Environmental Plan 2006, and alterations or additions to such a structure are not permissible under the applicable planning instrument. Neither s109B nor s96 of the Environmental Planning and Assessment Act 1979 empower approval of a structure that is now prohibited; even if power existed, approval would not be granted due to unacceptable visual impacts and inconsistency with planning objectives.

Jurisdiction
Australia
Judgment Date
21 January 2011
Procedural Posture
Appeal / Final Decision
Outcome
Appeal dismissed; modification applications refused
Legal Topics
['development Consent Modification' 'boatsheds' 'foreshore Building Line' 'visual Impact' 'permissibility Under Local Environmental Plans']
['planning and Environment'] ['development Consent Modification' 'boatsheds' 'foreshore Building Line' 'visual Impact' 'permissibility Under Local Environmental Plans']

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Procedural Posture

Appeal / Final Decision

Legal Issues

  1. 1 ['Whether modification applications for an already constructed two storey boatshed can be approved under the current planning controls' 'Whether the modified structure is permissible under the Sutherland Shire Local Environmental Plan 2006' 'Effect and interpretation of s109B Environmental Planning and Assessment Act 1979 concerning modification of existing consents']

Ratio Decidendi

The modification applications cannot be approved because the resulting two storey structure is not a 'boatshed' as defined in the Sutherland Shire Local Environmental Plan 2006, and alterations or additions to such a structure are not permissible under the applicable planning instrument. Neither s109B nor s96 of the Environmental Planning and Assessment Act 1979 empower approval of a structure that is now prohibited; even if power existed, approval would not be granted due to unacceptable visual impacts and inconsistency with planning objectives.

Court Disposition

Appeal dismissed; modification applications refused

Orders

  • ['The appeal is dismissed.' 'The application to modify development consent DA05/1217 is refused.' 'The exhibits are returned.']