Dwyer v Sutherland Shire Council [2018] NSWLEC 1543

Land and Environment Court New South Wales

Medium Neutral Citation: Dwyer v Sutherland Shire Council [2018] NSWLEC 1543 Hearing dates: 7 September 2018 Date of orders: 17 October 2018 Decision date: 17 October 2018 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are: (1) The appeal is upheld; (2) Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A; (3) The exhibits, except Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale Legislation Cited: Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environment Plan 2015 Cases Cited: MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Daniel Robert Dwyer (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/63423 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) DA17/1774 for two studios above detached garages at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine (hereafter the site). 2. The site is rectangular in shape with a 34.1m frontage to Old Princes Highway and a total area of 1568.2m2. The site has a fall of 1.4m towards the east (rear boundary). 3. The surrounding area is dominated by one- and two-storey residential dwellings of various architectural styles, which due to the neighbouring lot configuration, have dwellings located in close proximity to both the rear and front of the site.