Sutherland Shire Council v Counsel [2012] NSWLEC 61

Sutherland Shire Council v Counsel [2012] NSWLEC 61

The Commissioner erred in law because the matters relied on to find cl 17(9)(b)(iv) satisfied were irrelevant to whether there was a reasonable alternative location for a new dwelling entirely behind the foreshore building line. The correct inquiry was not whether the foreshore building line control, the extent of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 March 2012
Procedural Posture
Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 From a Commissioner's Decision on a Question of Law / Principal Judgment
Outcome
Appeal upheld and development consent conditions varied to require the new dwelling to be entirely behind the foreshore building line; no order as to costs.
Legal Topics
['foreshore Building Line' 'sutherland Shire Local Environmental Plan 2006 Cl 17(9)(b)(iv)' 'reasonable Alternative Location for a New Dwelling' 'irrelevant Considerations' 'conditions of Development Consent']
['planning and Environment Law' 'development Consent' 'statutory Construction'] ['foreshore Building Line' 'sutherland Shire Local Environmental Plan 2006 Cl 17(9)(b)(iv)' 'reasonable Alternative Location for a New Dwelling' 'irrelevant Considerations' 'conditions of Development Consent']

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Procedural Posture

Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 From a Commissioner's Decision on a Question of Law / Principal Judgment

Legal Issues

  1. 1 ['Whether the Acting Senior Commissioner misconstrued cl 17(9)(b)(iv) of the Sutherland Shire Local Environmental Plan 2006.' 'Whether the Acting Senior Commissioner took into account irrelevant considerations in determining whether there was no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line.' 'Whether the development consent conditions should be amended to require the new dwelling to be entirely behind the foreshore building line.']

Ratio Decidendi

The Commissioner erred in law because the matters relied on to find cl 17(9)(b)(iv) satisfied were irrelevant to whether there was a reasonable alternative location for a new dwelling entirely behind the foreshore building line. The correct inquiry was not whether the foreshore building line control, the extent of breach, consistency with adjoining development, absence of amenity impacts or satisfaction of other cl 17(9) requirements made the proposed breach reasonable, but whether locating a new dwelling behind the foreshore building line was a reasonable alternative. As it was common ground that the dwelling could be relocated entirely behind the line, the conditions should be varied to...

Court Disposition

Appeal upheld and development consent conditions varied to require the new dwelling to be entirely behind the foreshore building line; no order as to costs.

Orders

  • ['The appeal is upheld.' 'The decision of the Acting Senior Commissioner in proceedings No 10579 of 2011 in granting development consent on conditions is varied by amending conditions 1 and 9 in the form attached to these orders.' 'The exhibits may be returned with the exception of Exhibit A.' 'No order as to costs.']