Imbree v Sutherland Shire Council [2012] NSWLEC 1293

Imbree v Sutherland Shire Council [2012] NSWLEC 1293

Even taking the applicants' case at its highest by using the present physical mean high water mark for their property, the Court was required to treat the adjacent lot's mean high water mark as shown on DP10703, resulting in a foreshore building line that bisected the present dwelling. Because considerable parts of the proposed additions and alterations, including external balcony areas, would be further forward of that foreshore building line than the existing dwelling, the proposal failed under cl 17(9)(b)(i) and development consent had to be refused.

Jurisdiction
Australia
Judgment Date
13 September 2012
Procedural Posture
Class 1 Appeal Concerning Development Consent for Additions and Alterations to an Existing Dwelling / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['sutherland Shire Local Environmental Plan 2006' 'foreshore Building Line' 'deemed Mean High Water Mark' 'development Consent' 'alterations and Additions to Dwelling']
['planning and Environment Law'] ['sutherland Shire Local Environmental Plan 2006' 'foreshore Building Line' 'deemed Mean High Water Mark' 'development Consent' 'alterations and Additions to Dwelling']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Development Consent for Additions and Alterations to an Existing Dwelling / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the foreshore building line should be derived by reference to the deemed mean high water mark under cl 17 of the Sutherland Shire Local Environmental Plan 2006.' 'Whether the proposed additions and alterations would be erected further forward of the foreshore building line than the existing dwelling, engaging cl 17(9)(b)(i).']

Ratio Decidendi

Even taking the applicants' case at its highest by using the present physical mean high water mark for their property, the Court was required to treat the adjacent lot's mean high water mark as shown on DP10703, resulting in a foreshore building line that bisected the present dwelling. Because considerable parts of the proposed additions and alterations, including external balcony areas, would be further forward of that foreshore building line than the existing dwelling, the proposal failed under cl 17(9)(b)(i) and development consent had to be refused.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development consent for the erection or construction of additions and alterations to the existing dwelling is refused.']