Geelan v Sutherland Shire Council [2011] NSWLEC 1375

Geelan v Sutherland Shire Council [2011] NSWLEC 1375

Consent could be granted because cl 17(8) and cl 17(9) qualified the general prohibition in cl 17(7); there was an existing dwelling on the land; in the context of Sutherland Shire Local Environmental Plan 2006 the words "existing dwelling" included the open deck; and, subject to modifications and conditions, the permissible works satisfied the relevant cl 17 objectives and merit assessment requirements. The SEPP 1 objection to the landscaped area development standard in cl 36 was well founded.

Jurisdiction
Australia
Judgment Date
14 November 2011
Procedural Posture
Class 1 Appeal Against Refusal of Development Application for Alterations and Additions to an Existing Dwelling House / Principal Judgment
Outcome
Appeal upheld; development application approved subject to conditions; SEPP 1 objection found well founded.
Legal Topics
['development Application' 'foreshore Building Line' 'existing Dwelling' 'alterations and Additions' 'sutherland Shire Local Environmental Plan 2006' 'sepp 1 Objection']
['environmental and Planning Law' 'development Control'] ['development Application' 'foreshore Building Line' 'existing Dwelling' 'alterations and Additions' 'sutherland Shire Local Environmental Plan 2006' 'sepp 1 Objection']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application for Alterations and Additions to an Existing Dwelling House / Principal Judgment

Legal Issues

  1. 1 ['Whether proposed buildings or works between the foreshore building line and the foreshore were permissible under cl 17 of Sutherland Shire Local Environmental Plan 2006.' 'Whether there was an existing dwelling on the land for the purposes of cl 17(9)(b)(i).' 'Whether the expression "existing dwelling" included the open deck.' 'If permissible, whether the proposed works should be approved on a merit assessment having regard to the objectives of cl 17.']

Ratio Decidendi

Consent could be granted because cl 17(8) and cl 17(9) qualified the general prohibition in cl 17(7); there was an existing dwelling on the land; in the context of Sutherland Shire Local Environmental Plan 2006 the words "existing dwelling" included the open deck; and, subject to modifications and conditions, the permissible works satisfied the relevant cl 17 objectives and merit assessment requirements. The SEPP 1 objection to the landscaped area development standard in cl 36 was well founded.

Court Disposition

Appeal upheld; development application approved subject to conditions; SEPP 1 objection found well founded.

Orders

  • ['The appeal is upheld.' 'The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 1 and K.' 'The SEPP 1 objection to the landscaped area development standard...