Huntington & MacGillivray v Sutherland Shire Council [2005] NSWLEC 62

Land and Environment Court of New South Wales

CITATION : Huntington & MacGillivray v Sutherland Shire Council [2005] NSWLEC 62

APPLICANT Huntington & MacGillivray PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10472 of 2004

CORAM: Tuor C.

Development Application :- Residential Flat Building KEY ISSUES: SEPP 1 objection site size and dimensions

State Environmental Planning Policy No 1 LEGISLATION CITED: State Environmental Planning Policy No 65 Sutherland Local Environmental Plan 2000

DATES OF HEARING: 23/11/2004, 24/11/2004

DATE OF JUDGMENT: 02/18/2005

APPLICANT

Mr M Ball

LEGAL REPRESENTATIVES: RESPONDENT

Mr O'Gorman Hughes Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

18 February 2005

10472 of 2004 Huntington & MacGillivray v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Sutherland Shire Council (the council) of a development application (03/2206) to demolish the existing buildings and construct a residential flat building at lot 140 DP 8483, known as 103 Elouera Road, Cronulla (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is generally flat and rectangular in shape with an area of 597.1sqm. It is located at the north west corner of Elouera Road and Marlow Road, with a frontage of 14.2m to Elouera Road and 42.035m to Marlo Road. 4 The site is developed with a two storey red brick residential flat building with a pitched tile roof. Towards the rear of the site, off Marlo Road, is a detached brick garage for two cars and a hard stand parking area for three cars. There are no significant trees on the site and the landscaping is mainly grassed areas. 5 Adjoining sites to the north are similar sized allotments that are developed with two or three storey residential flat buildings of similar style and form to the existing building on the site. A recent residential flat building is located on a similar sized allotment on the corner of Bando Road and Elouera Road. 6 The adjoining development to the west is a recent three storey residential flat building developed over two allotments. There is a drainage reserve, which runs along the eastern boundary of this site that provides a degree of separation between it and the proposal. 7 Development on the eastern side of Elouera Road is recent three storey residential flat buildings each developed over two allotments. 8 The locality is characterised by a regular subdivision pattern with allotments of similar size to the subject site. These are developed with either one or two storey detached houses or older style two and three storey residential flat buildings. Some allotments have been amalgamated and developed with more recent residential flat buildings. The proposal and its history 9 The application was lodged on 19 December 2003 and was notified to adjoining and nearby residents. Council received an objection from the North Cronulla Residents Precinct Committee. The Architectural Review Advisory Panel considered the application on 29 January 2003 and did not support the proposal. The application was amended a number of times and at the time of the hearing had not been determined by council. 10 The proposal is to demolish an existing two storey residential flat building containing 4x2 bedroom units and to construct a three storey residential flat building with 6x2 bedroom units and basement parking for six cars accessed off Marlo Road. Planning Framework 11 The site is zoned 2(c) Residential under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). 12 The objectives of the 2(c) zone are: