Rosenthal v Sutherland Shire Council [2013] NSWLEC 1078

Rosenthal v Sutherland Shire Council [2013] NSWLEC 1078

The development application was refused because the most appropriate vehicular access to the site was from Bunarba Road, while the proposed garage off Alkaringa Road required excavation of up to 6m, removal of large and smaller trees, and structures that did not complement the natural landscape setting, protect existing vegetation, or respond to the natural landform as required by the LEP and DCP. The associated road reserve works were also refused because stormwater disposal was unresolved, further environmental impacts and retaining works could be required, and the extent of public road reserve works for the benefit of one property did not outweigh the adverse visual, aesthetic and...

Jurisdiction
Australia
Judgment Date
08 May 2013
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application 12/0944 and Associated Application for Works Within the Public Road / Hearing After Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Was Terminated With No Agreement
Outcome
Appeal dismissed
Legal Topics
['development Application for Garage and Rooftop Garden' 'works Within Road Reserve' 'vehicular Access and Safety' 'excavation and Natural Landform' 'tree Removal and Ecological Impacts' 'stormwater Disposal']
['planning and Environment' 'development Consent' 'roads and Traffic Access'] ['development Application for Garage and Rooftop Garden' 'works Within Road Reserve' 'vehicular Access and Safety' 'excavation and Natural Landform' 'tree Removal and Ecological Impacts' 'stormwater Disposal']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application 12/0944 and Associated Application for Works Within the Public Road / Hearing After Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Was Terminated With No Agreement

Legal Issues

  1. 1 ["Whether the impacts of the proposed garage and works within the road reserve were appropriate and consistent with the council's planning controls" 'Whether the point of access to the garage was appropriate and safe' 'Whether there was a more appropriate location for the additional onsite car parking' 'Whether the extent of excavation and tree removal was acceptable having regard to the natural landform and vegetation' 'Whether stormwater disposal and environmental impacts of works within the road reserve had been adequately resolved']

Ratio Decidendi

The development application was refused because the most appropriate vehicular access to the site was from Bunarba Road, while the proposed garage off Alkaringa Road required excavation of up to 6m, removal of large and smaller trees, and structures that did not complement the natural landscape setting, protect existing vegetation, or respond to the natural landform as required by the LEP and DCP. The associated road reserve works were also refused because stormwater disposal was unresolved, further environmental impacts and retaining works could be required, and the extent of public road reserve works for the benefit of one property did not outweigh the adverse visual, aesthetic and...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Development Application 12/0944 for tree removal and the construction of a garage at 110 Bunarba Road, Gymea Bay is refused and the associated application for approval of works under the Road Act 1993 is also refused.' 'The exhibits, other than exhibits A, J and 3, can be returned.']