Csont v Sutherland Shire Council [2021] NSWLEC 1671

Csont v Sutherland Shire Council [2021] NSWLEC 1671

Clause 6.9 of Sutherland Shire LEP 2015 does not operate as a mandatory precondition to granting the modification; section 4.55 of the EPA Act governs. The proposed modification is substantially the same as the original consent, compatible with the locality and heritage context, and does not establish an undesirable planning precedent. The appeal is upheld and the modification application should be approved.

Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Modification Application Appeal (class 1) / Judgment After Hearing
Outcome
Appeal upheld. Modification application approved.
Legal Topics
['modification Application' 'development Consent' 'foreshore Building Line' 'compatibility With Locality' 'heritage Impact' 'public Submissions']
['environmental Law' 'planning Law'] ['modification Application' 'development Consent' 'foreshore Building Line' 'compatibility With Locality' 'heritage Impact' 'public Submissions']

Case Brief

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Procedural Posture

Modification Application Appeal (class 1) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether cl 6.9 of Sutherland Shire Local Environmental Plan 2015 applies to the modification application and is a precondition to approval' 'Whether the development as modified is substantially the same development as originally approved' 'Whether the proposed boatshed and terrace are compatible with the existing and desired future character of the locality' 'Whether approval would set an undesirable precedent for development forward of the foreshore building line' 'Whether the modification detrimentally impacts heritage significance of Gunnamatta Park']

Ratio Decidendi

Clause 6.9 of Sutherland Shire LEP 2015 does not operate as a mandatory precondition to granting the modification; section 4.55 of the EPA Act governs. The proposed modification is substantially the same as the original consent, compatible with the locality and heritage context, and does not establish an undesirable planning precedent. The appeal is upheld and the modification application should be approved.

Court Disposition

Appeal upheld. Modification application approved.

Orders

  • ['The appeal is upheld.' 'Modification Application MA20/0372 is approved and development consent DA/19/0194 is modified by the terrace at the upper level of the boathouse and amending the approved swimming pool, spa and pool enclosure as detailed in Annexure A.' 'Development consent DA/19/0194 is now subject to the...