Counsel v Sutherland Shire Council [2011] NSWLEC 1306

Counsel v Sutherland Shire Council [2011] NSWLEC 1306

The proposed development could be approved despite minor breaches of the foreshore building line because, on the proper construction of cl 17(9)(b)(iv), adopting the council's literal approach in the circumstances would be unreasonable, irrational and unjust. The foreshore building line was historic and largely irrelevant for planning purposes in this location, the breaches were minor, the development satisfied the objectives of cl 17 including visual impact objectives, the setback was consistent with adjoining properties, the breaches caused no amenity impacts, and the other requirements of cl 17(9) were accepted as satisfied. The SEPP 1 objection to the height development standards was...

Jurisdiction
Australia
Judgment Date
08 September 2011
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 10/0727 / On Site Hearing Held Forthwith After Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
Appeal upheld; Development Application 10/0727 approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'foreshore Building Line' 'state Environmental Planning Policy No 1 Objection' 'sutherland Local Environmental Plan 2006' 'statutory Interpretation']
['planning and Environment Law' 'development Consent'] ['development Application' 'foreshore Building Line' 'state Environmental Planning Policy No 1 Objection' 'sutherland Local Environmental Plan 2006' 'statutory Interpretation']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 10/0727 / On Site Hearing Held Forthwith After Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether development below the foreshore building line was permissible under cl 17 of Sutherland Local Environmental Plan 2006.' 'Whether cl 17(9)(b)(iv) required refusal because there was a reasonable alternative that would allow a new dwelling to be located behind the foreshore building line.' 'Whether compliance with the height development standards in cl 33(4) was unreasonable and unnecessary in the circumstances of the case.']

Ratio Decidendi

The proposed development could be approved despite minor breaches of the foreshore building line because, on the proper construction of cl 17(9)(b)(iv), adopting the council's literal approach in the circumstances would be unreasonable, irrational and unjust. The foreshore building line was historic and largely irrelevant for planning purposes in this location, the breaches were minor, the development satisfied the objectives of cl 17 including visual impact objectives, the setback was consistent with adjoining properties, the breaches caused no amenity impacts, and the other requirements of cl 17(9) were accepted as satisfied. The SEPP 1 objection to the height development standards was...

Court Disposition

Appeal upheld; Development Application 10/0727 approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A.' 'The exhibits are returned the exception...