Rosenthal v Sutherland Shire Council [2013] NSWLEC 1078

Land and Environment Court New South Wales

Medium Neutral Citation: Rosenthal v Sutherland Shire Council [2013] NSWLEC 1078 Hearing dates: 1-2 May 2013 Decision date: 08 May 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Development Application, impact of works within road reserve, impact of excavation Legislation Cited: Land and Environment Court Act 1979; Roads Act 1993; Sutherland Local Environmental Plan 2006; Environmental Planning and Assessment Act 1979 Texts Cited: Sutherland Shire Development Control Plan 2006; Building Code of Australia Category: Principal judgment Parties: Thomas Rosenthal Jo-Anne Rosenthal (Applicants)

Sutherland Shire Council (Respondent) Representation: Mr P Vergotis TressCox Lawyers

Ms J Amy Sutherland Shire Council File Number(s): 10061 of 2013

Judgment 1The Rosenthals sought consent from Sutherland Shire Council to carry out works within a road reserve to facilitate access to a proposed double garage with rooftop garden and WC at the rear of their property No. 110 Bunarba Road, Gymea Bay. The Council has not determined Development Application 12/0944 (application) and the associated application for works within the public road and the Rosenthals have appealed the deemed refusal of the DA. The council has refused a separate application under the Roads Act 1993 for works within the road reserve. 2The matter commenced as a conciliation conference under the provisions of s34AA of the Land and Environment Court Act 1979 however no agreement was reached, the conference was terminated and a hearing held in accordance with the provisions of s34AA(2)(b)(i). 3The issues in the case are whether the impacts of the proposed garage and works within the road reserve are appropriate and consistent with the council's planning controls, whether the point of access to the garage is appropriate and safe and whether there is a more appropriate location for the additional onsite car parking.