Layman & Ors v Sutherland Shire Council [2003] NSWLEC 4

> Land and Environment Court of New South Wales

CITATION : Layman & Ors v Sutherland Shire Council [2003] NSWLEC 4 APPLICANTS Steven Layman Peter Anthony Terrett PARTIES : Julene Marjorie Terrett

RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10100 of 2002 CORAM: Cowdroy J KEY ISSUES: Development Application :- consent refused - appeal - council consenting to orders for identical development LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/10/2002 EX TEMPORE JUDGMENT DATE : 10/24/2002

APPLICANTS Mr P Terrett (Solicitor)

SOLICITORS Terrett Lawyers

LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson (Solicitor)

SOLICITORS n/a

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10100 of 2002

Cowdroy J

24 October 2002 Steven Layman Peter Anthony Terrett Julene Marjorie Terrett Applicants v Sutherland Shire Council Respondent Judgment 1 In this matter the Court is requested to grant approval to an application class 1 which was filed on 15 February 2002. 2 A development application was made to the respondent ("the council") for approval for a curved metal awning addition to an existing dwelling ("the land"). Such application was refused by council on 27 February 2001. The council enumerated five reasons for refusal. Prima facie each of those reasons appears to be a matter of significance. The council now consents to orders being made for approval, despite there having been no change to the plans. 3 The applicants claim that existing use rights apply to the land and that such rights justify a grant of consent for the proposed development. They have tendered a report of Steven Layman dated 21 October 2002 which explains the basis of the existing use and which shows that existing use rights pertain to the land. The council accepts that such evidence establishes the applicants' claim to existing use rights. Accordingly council submits the appeal should be upheld. 4 The evidence of the council is contained in a report by Mark Adamson, town planner. It would have been far more helpful if council had provided evidence by way of an affidavit setting out the reasons for its acceptance of the proposal and for its acknowledgment that its five reasons for rejection of the proposal should now not be sustained. 5 The Court takes note that there are no objectors and that the council accepts without question the contents of the report of Mr Steven Layman. One neighbour has provided written support for the development. 6 The Court makes the following observation. Where there has been an initial refusal of a development application for reasons which are prima facie valid, and there is a subsequent reversal of council's opinion, the Court should be provided with reasons which explain the basis of such reversal. Such evidence is especially required in those instances in which no change is made to the development application or plans.