O'Donnell v Sutherland Shire Council [2011] NSWLEC 184

O'Donnell v Sutherland Shire Council [2011] NSWLEC 184

The appeal failed because the Appellants did not establish any material error of law. The finding that the 2005 consent was for a single storey boatshed was factual, and in any event no misapplication of the 2000 LEP definition of storey was shown. The modified two storey structure was not a dwelling or an excluded boatshed capable of approval below the foreshore building line under cl 17 of the 2006 LEP, and the toilet and shower addition could not be approved if the modified boatshed could not be approved. Section 109B did not assist because the 2005 consent for a single storey boatshed was not prohibited by the 2006 LEP, and the Commissioner did not err in considering the relevant LEP...

Jurisdiction
Australia
Judgment Date
27 October 2011
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Concerning Refusal of Two Modification Applications Under S 96 of the Environmental Planning and Assessment Act 1979 / Appeal From Commissioner's Judgment in O'donnell V Sutherland Shire Council [2011] NSWLEC 1007
Outcome
Appeal dismissed.
Legal Topics
['development Consent Modification' 'boatshed Development' 'foreshore Building Line' 'local Environmental Plan Interpretation' 'questions of Law on Appeal']
['environmental Planning and Assessment' 'land and Environment' 'administrative Law'] ['development Consent Modification' 'boatshed Development' 'foreshore Building Line' 'local Environmental Plan Interpretation' 'questions of Law on Appeal']

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

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Concerning Refusal of Two Modification Applications Under S 96 of the Environmental Planning and Assessment Act 1979 / Appeal From Commissioner's Judgment in O'donnell V Sutherland Shire Council [2011] NSWLEC 1007

Legal Issues

  1. 1 ['Whether the Commissioner erred in concluding that the boatshed approved in 2005 was not a two storey structure and that the upper level was not already approved as a storey under Sutherland Shire Local Environmental Plan 2000.' 'Whether the Commissioner erred in law in concluding that the proposed modifications were not permissible development under Sutherland Shire Local Environmental Plan 2006.' 'Whether s 109B and s 96 of the Environmental Planning and Assessment Act 1979 allowed approval of the modification applications.' "Whether the Commissioner's merits assessment was vitiated by legal error."]

Ratio Decidendi

The appeal failed because the Appellants did not establish any material error of law. The finding that the 2005 consent was for a single storey boatshed was factual, and in any event no misapplication of the 2000 LEP definition of storey was shown. The modified two storey structure was not a dwelling or an excluded boatshed capable of approval below the foreshore building line under cl 17 of the 2006 LEP, and the toilet and shower addition could not be approved if the modified boatshed could not be approved. Section 109B did not assist because the 2005 consent for a single storey boatshed was not prohibited by the 2006 LEP, and the Commissioner did not err in considering the relevant LEP...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'Costs are reserved.' 'Exhibits are to be returned.']