Imbree v Sutherland Shire Council (No. 2) [2012] NSWLEC 1298

Imbree v Sutherland Shire Council (No. 2) [2012] NSWLEC 1298

The only available plan relating to the subject land that was registered with the Registrar General and current on or before 24 April 1980 was Deposited Plan 10703. Applying cl 17 of Sutherland Shire Local Environmental Plan 2006, the deemed high water mark and resulting foreshore building line were those depicted in exhibit 14, which cut through substantial parts of the proposed dwelling. The proposal therefore could not be approved as applied for, could not be acceptably amended within the scope of the application, and the subdivision could not properly be approved without a building footprint and envelope for the sensitive site.

Jurisdiction
Australia
Judgment Date
14 September 2012
Procedural Posture
Class 1 Development Appeal Concerning Development Application 11/0931 for Torrens Title Subdivision and Construction of a Dwelling / Principal Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['foreshore Building Line' 'deemed Mean High Water Mark' 'torrens Title Subdivision' 'development Consent' 'statutory Construction' 'amber Light Approach']
['environmental Planning and Development' 'land and Environment' 'surveying and Land Boundaries'] ['foreshore Building Line' 'deemed Mean High Water Mark' 'torrens Title Subdivision' 'development Consent' 'statutory Construction' 'amber Light Approach']

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Procedural Posture

Class 1 Development Appeal Concerning Development Application 11/0931 for Torrens Title Subdivision and Construction of a Dwelling / Principal Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Which plan established the deemed mean high water mark for 28 Rutherford Avenue under cl 17 of Sutherland Shire Local Environmental Plan 2006.' 'Whether the proposed dwelling was prohibited because it was forward of the foreshore building line.' 'Whether the Court could approve the application, or approve it with amendments, under the amber light approach.' 'Whether the subdivision component could be approved without approving the proposed dwelling.']

Ratio Decidendi

The only available plan relating to the subject land that was registered with the Registrar General and current on or before 24 April 1980 was Deposited Plan 10703. Applying cl 17 of Sutherland Shire Local Environmental Plan 2006, the deemed high water mark and resulting foreshore building line were those depicted in exhibit 14, which cut through substantial parts of the proposed dwelling. The proposal therefore could not be approved as applied for, could not be acceptably amended within the scope of the application, and the subdivision could not properly be approved without a building footprint and envelope for the sensitive site.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal in matter 10376 of 2012 is refused.' 'Development Application 11/0931 for Torrens Title subdivision of an existing lot into two lots and the construction of a dwelling on the proposed new allotment to be known as Lot A must be determined by the refusal of development consent.' 'The exhibits, other than...