Owsnett v Sutherland Shire Council [2022] NSWLEC 1528

Owsnett v Sutherland Shire Council [2022] NSWLEC 1528

The proposal is properly characterised as a 'rebuild' under cl 6.9(2)(a) of the SSLEP 2015 as it involves the retention of the existing dwelling's footings and does not extend the building footprint further forward. Consequently, a cl 4.6 written request to vary the development standard is not necessary. The development satisfies relevant planning controls regarding foreshore character, design, and overshadowing, and appropriately addresses tree retention and landscaping based on agreed expert evidence and proposed conditions. Sufficient compliance with the objectives and requirements of the SSLEP 2015 and SSDCP 2015 is demonstrated.

Parties
Applicant: Todd Wesley Owsnett; Applicant: Tamara Jade Owsnett; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
28 September 2022
Procedural Posture
Appeal / Final Determination After Hearing
Outcome
Appeal upheld. Development consent granted subject to conditions.
Legal Topics
Development Application, Foreshore Area, Building Line, Character, Visual Presence, Overshadowing, Tree Retention, Solar Access, Development Control Plans
Planning and Environment Law Development Application Foreshore Area Building Line Character Visual Presence Overshadowing Tree Retention +2 more

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Parties

Todd Wesley Owsnett

Applicant

Tamara Jade Owsnett

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Appeal / Final Determination After Hearing

Legal Issues

  1. 1 Whether the proposed development constitutes a 'rebuild' or 'new dwelling' under cl 6.9 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) and whether a cl 4.6 written request to vary the Foreshore Building Line (FBL) development standard is required.
  2. 2 Whether the proposed development is appropriate having regard to visual presence, character, overshadowing, and other amenity impacts as required by the SSLEP 2015 and Sutherland Shire Development Control Plan 2015 (SSDCP 2015).

Ratio Decidendi

The proposal is properly characterised as a 'rebuild' under cl 6.9(2)(a) of the SSLEP 2015 as it involves the retention of the existing dwelling's footings and does not extend the building footprint further forward. Consequently, a cl 4.6 written request to vary the development standard is not necessary. The development satisfies relevant planning controls regarding foreshore character, design, and overshadowing, and appropriately addresses tree retention and landscaping based on agreed expert evidence and proposed conditions. Sufficient compliance with the objectives and requirements of the SSLEP 2015 and SSDCP 2015 is demonstrated.

Court Disposition

Appeal upheld. Development consent granted subject to conditions.

Orders

  • The Appeal is upheld.
  • Development Application No DA21/0241, for the demolition of the existing dwelling and construction of a new dwelling, games room and double garage, with ancillary driveway, earthworks, retaining works and landscaping, is determined by the granting of Development Consent subject to the Conditions in Annexure 'A'.