Harbour Port Construction Pty Ltd v Sutherland Shire Council

Harbour Port Construction Pty Ltd v Sutherland Shire Council - [2007] NSWLEC 696 - NSWLEC 1996 case summary — Zoe

[19]

12 Clause 18 makes provision for development in or adjacent to waterways and applies to the subject land as follows: (1) … (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the construction or interference with navigation in waterways, (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as practicable), with a minimum intrusion of man-made structures, (c) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of the site, (d) to promote the public use of intertidal areas below the knee high watermark or high water mark, where appropriate. (3) The consent authority must not consent to development of land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building all work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, and (ii) between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (b) any building or work (other than watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, and (ii) below the mean high water mark. (4) Subclause (3) does not require the removal of any building or work if: (a) the proposed development is the erection or installation of any of the following: (i) a fence or retaining wall between a dwelling and the street on which the dwelling is located, (j) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (k) a deck or verandah, (l) an awning or canopy, or (b) that consent authority is satisfied that the use of the building or work is lawful, or (c) consent authority is satisfied that the removal of the building or work: (i) would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or (ii) is unreasonable or unnecessary in the circumstances of the case.

[35]

28 As I understand the applicant's submissions, it relies predominantly on the (c) (ii) provisions, that the removal of the cottage is unreasonable or unnecessary in the circumstances of the case. In response to council's evidence that the building is required to be removed pursuant to a previous consent, Mr Kondilios says it is unreasonable to now require the cottage removal because the initial consent has not been completed. If there were compelling reasons to remove the cottage in advance of the completion of the original development, then council could issue appropriate orders. 29 The particular circumstances that Mr Cole refers to is that in May 1984 council granted development consent (No 5464/84) for the dwelling located 15m from the MHWM are subject to the condition requiring: Compliance with the conditions of building approval no. 4197/83. 30 Building Approval No 4197/83 contains the following conditions relevant to the waterfront dwelling: 3. Compliance with the conditions of development consent no.5464/85. 4. Forty-eight (48) hours notice in writing being given to council to enable inspection of the following works: (e) Completion of the building work before occupation or use. 5. The building not being occupied or used until the approval of the Council has been obtained. 26. The demolition and removal of the dwelling at the waters edge to Councils satisfaction within three (3) months of the date of the final inspection. 31 Then in August 1984, Council approved amendments to Building Approval No 4197/83, which allowed the construction of the new dwelling in two stages: Stage 1 - A two-storey dwelling containing; o Ground floor; lounge/dining room, kitchen, laundry and bathroom, o First floor; bedroom 1 & 2 and study. Stage 2 - A two-storey extension to the stage one dwelling with modifications to the internal layout as follows: o Ground floor; laundry, bathroom, separate shower & WC, rumpus room and bedrooms 2, 3 and 4. o First floor; bedroom1, lounge, bathroom, kitchen, study and sunroom. 32 This approval retained the above-mentioned conditions, together with the additional condition 27. 27. Stage 1 of the proposal is to be finished off to council's satisfaction prior to occupation . 33 Subsequently, other amendments and building approvals were granted, which still maintained the requirement for the waterfront cottage to be demolished. 34 Accordingly, I am satisfied that the approval of the original dwelling granted a benefit to the property owner but also imposed a burden that the waterfront cottage be removed. Insofar as Stage 2 of the amended consent has not been completed, nevertheless Stage 1 has been completed and occupied, without final approval by Council. This breaches condition 5 on the building approval.

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Judgment (45 paragraphs)

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