Agostino v Baulkham Hills Shire Council

[2009] NSWLEC 1076

Land and Environment Court

of New South Wales

CITATION:

Agostino v Baulkham Hills Shire Council [2009] NSWLEC 1076

PARTIES:

APPLICANT
Vince Cosmo Agostino

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10732 of 2008

CORAM:

Bly C

KEY ISSUES:

APPEAL :- Demolition order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28/01/2009 and 11/03/2009

 
DATE OF JUDGMENT: 

11 March 2009

EX TEMPORE JUDGMENT DATE:

11 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr V. Agostino, litigant in person

RESPONDENT
Mr C. Winn, solicitor
of Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

11 March 2009

10732 of 2008 Vince Cosmo Agostino v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal against an Order issued by the Respondent Council, dated 1 July 2008, whereby the Applicant was ordered to:

(a) demolish the unauthorised outbuilding structure located a the rear of the subject premises behind the existing dwelling; and
(b) demolish the unauthorised attached gazebo located at the rear of the subject premises attached to the unauthorised outbuilding structure.

2 According to the Statement of Facts and Contentions the unauthorised outbuilding structure (“the outbuilding”) located at the rear of the site at 4 Toledo Place, Baulkham Hills. It extends from the northern to the western property boundaries of the land, measuring 17.2 metres in length and 4.0 metres in width, with an approximate useable area of approximately 69 square metres. Attached to the front of the outbuilding, to the northern side of the structure, is a pitched roof awning or gazebo, occupying a total floor area of 11.28 square metres. Both structures stand approximately 3.5 metres above natural ground level, ro finished ground level, at their highest points (to the ridge line).

3 The parties have now agreed on an amended order.

4 The reason for the new proposed order.

i. The unauthorised outbuilding structure' and gazebo 'as built' are not considered Exempt Development as outlined in the Baulkham Hills Shire Council Local Environmental Plan, 2005.
ii. The unauthorised outbuilding structure and gazebo 'as built' have been constructed without development consent where development consent was required. A search of Council records has failed to locate any development consent, construction certificate or building approvals, which authorise the structures as built on the subject site.
iii. It is considered that should a development application have been lodged for the outbuilding structure and gazebo 'as built' it would not have been supported given the bulk of the structure and its location to the property boundaries.
iv. The unauthorised outbuilding structure 'as built' has the potential to be used as a separate occupancy. In this regard, the submission of a Development Application for proposed use of the 'as modified' workshop and storage building would ensure compliance with all relevant planning and building legislative requirements and minimize the potential impact on the occupants of the site and neighbouring properties.
v. The development is contrary to the objectives of the Residential 2(b) zone under Baulkham Hills Shire Council Local Environmental plan 2005 as the unauthorised workshop and storage building 'as built' is not visually integrated with development carried out on the surrounding properties. (Section 79C(a) (i) of the Environmental Planning & Assessment Act 1979). . In this regard, the proposed modifications to the existing outbuilding structure as detailed in the architectural plans submitted by Craig Yates and dated 2 February 2009 reduce and mitigate the potential impacts on the surrounding properties.
vi. The unauthorised outbuilding structure and gazebo 'as built' significantly impact on the visual amenity previously existing between adjoining properties. (Section 79C(a) (i) of the Environmental Planning & Assessment Act 1979). It is considered that the unauthorised outbuilding structure has the opportunity for overlooking and to be viewed from adjoining neighbours. In this regard, the proposed modifications to the existing outbuilding structure as detailed in the architectural plans submitted by Craig Yates and dated 2 February 2009 reduce and mitigate the potential impacts on the surrounding properties.
vii. The unauthorised outbuilding structure and gazebo 'as built' fails to mitigate the visual impacts of the structure upon adjoining properties due to the proximity to the boundary and the scale of the structure. In this regard, the proposed modifications to the existing outbuilding structure as detailed in the architectural plans submitted by Craig Yates and dated 2 February 2009 reduce and mitigate the potential impacts on the surrounding properties.
viii. The unauthorised outbuilding structure and gazebo does not comply with the Baulkham Hills Development Control Plan in that the rear and side boundary setbacks for the walls of the structure are less than 4 metres and 900 mm respectively. In this regard, the submission of a Development Application for proposed use of the 'as modified' workshop and storage, building would ensure compliance with all relevant planning requirements and building legislative requirements and minimize the potential impact on the occupants of the site and neighbouring properties.

5 Having inspected the site, and considered the above reasons, I see no reason why the agreed orders should not be imposed.

6 By consent the applicant is ordered:

1. To modify the existing outbuilding structure located at the rear of Lot 182 DP 236175 - 4 Toledo Place, Baulkham Hills.
In this regard, the existing outbuilding structure is to be modified in accordance with the architectural plans prepared by Craig Yates dated 2 February 2009, titled proposed storage/workshop - Drawing No. VA.01 sheets 1/2 & 2/2 (See attached drawings).
2. At the completion of the modifications to the existing outbuilding structure as outlined above you are required to undertake the following works;
(a) Submit to Council a Structural Engineers Certificate certifying that the modifications to the outbuilding structure are structurally adequate;
(b) Submit to Council a building certificate application to regularise the as modified outbuilding structure and gazebo; and
(c) Submit to Council a Development Application for the proposed use of the as modified outbuilding structure and gazebo.
3. For Compliance
All works to give effect to the Order shall be completed by no later than 30 September 2009. This period may be, upon application, extended once only by the Council for a period of up to 6 months.
Non-compliance with the Order should it be given:

4. Exhibit 4 is retained.

___________________

T A Bly
Commissioner of the Court
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