Agostino v Hornsby Shire Council

[2021] NSWLEC 1708

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agostino v Hornsby Shire Council [2021] NSWLEC 1708

Hearing dates:

3 November 2021

Date of orders:

23 November 2021

Decision date:

23 November 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Demolish Works Order issued on 30 July 2021 is modified pursuant to s 8.18(4)(b) to require the following works:

(a) Remove the shipping container, trellis structure and associated shade cloth from the front north-eastern corner of the Premises, as identified in Figure No. 1 and Images No. 1 – 4 (attached to this Order).

Catchwords:

APPEAL – development control order – modify the development control order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 –unapproved shipping container on residential site

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4, 1.5, 8.18, Sch 5 Pt 1

Hornsby Local Environmental Plan 2013, s 2.1, Pt 3

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 s 2.18

Texts Cited:

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

Vincent Agostino (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
V Agostino (Litigant in Person) (Applicant)
T Pickup (Solicitor) (Respondent)

Solicitors:
Local Government Legal (Respondent)

File Number(s):

2021/194622

Publication restriction:

No

Judgment

Introduction

1. This appeal relates to a Development Control Order issued by Hornsby Shire Council (the Council) to Mr Vincent Agostino (the applicant) on 30 July 2021. The order is a Demolish Works Order (the Order) that requires the removal of an unauthorised shipping container (the structure) located in the front garden of a residential property, Lot 4 DP 544024, 17 Park Road, Cowan. The applicant has appealed this Order pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Order, made pursuant to Pt 1 of Sch 5 of the EPA Act, specifically requires the applicant to remove the shipping container from the front north-eastern corner of the premises within 180 days of the date of the Order.

3. The site is zoned R2 Low Density Residential under the Hornsby Local Environmental Plan 2013 (HLEP), and features a single detached dwelling, with a large front building setback, within which the structure is located. The site is surrounded by residential dwellings, with open, landscaped street frontages, and a local school a short walk along the same street.

4. In evidence, the applicant confirmed that the structure is used for the storage of personal goods.

5. Following the issue of the Order, the structure has been enclosed by a trellis, shade cloth and planter boxes which are intended to support climbing plants and screen the structure.

6. At the commencement of proceedings, I noted that the orders requested by the applicant were not ones the Court could legally make. The applicant is a self-represented litigant with no legal training, and for these proceedings, elected not to seek any independent legal or planning advice. On this basis, and with the assistance of Mr Pickup, I afforded the applicant the opportunity to revise his requested orders. He did so, and the orders subsequently requested by the applicant are:

1. The appeal is upheld.

2. Council’s Demolish Works Order of the 30 July 2021 is set aside.

The statutory context of the structure

7. The Order was issued pursuant to Sch 5, Pt 1 of the EPA Act, to demolish or remove a building that was erected without planning approval.

8. The EPA Act defines ‘building’ in s 1.4(1) as including:

…any structure or part of a structure (including any temporary structure or part of a temporary structure) but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

9. The HLEP states that dwelling houses are permitted with consent within the R2 Low Density Residential zone. This structure is ancillary to the dwelling house but does not fall under the definition of ‘exempt development’ under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. This SEPP specifically excludes shipping containers from development to which the SEPP applies (cl 2.18(f)), and so the structure is not exempt from requiring development consent.

10. The structure is considered ‘development’ pursuant to EPA Act s 1.5(1) where development for the purposes of the Act is, inter alia, the use of land, the erection of a building, and any other act, matter of thing that may be controlled by an environmental planning instrument. Further, s 1.5(3) states that:

For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).

11. Subsequently, the erection and use of the structure on this land equates to development that requires consent. The Council has confirmed that no such development consent has been sought or granted.

The lack of development consent

12. The Council’s principal issue is that the structure in question has been erected without development consent. They contend that the absence of a development application process has denied the applicant’s neighbours the opportunity to formally consider and comment on a proposed shipping container in this location, which has led to the Council receiving an anonymous complaint regarding this structure. Additionally, it has denied the Council due process to assess the legality and merits of the development in consultation with the applicant.

13. In response, the applicant claims that due to recently added wheels, the container is now a fully portable and temporary structure, not a building, and that he can move it outside the 7.6m setback. As stated by Mr Miles in his evidence and pursuant to EPA Act s 1.4(1), the temporary nature of a structure does not exclude it from the definition of a building, nor from the requirement for development consent.

14. I concur with Mr Miles that the addition of wheels to the structure has no impact on its lack of development consent, nor on its visual impact. Further, although the applicant states that the container could be repositioned outside the setback, this again does not preclude it from requiring development consent which, thus far, the applicant has declined to apply for.

The visual impact of the structure

15. The Council also contends that the structure encroaches upon the 7.6m minimum front building setback that is required along Park Road, and due to this and its overall aesthetic, detracts from the visual amenity of the area. In the expert planning report of Matthew Miles (Exhibit 4), Mr Miles states that the structure is bulky, blank and unarticulated, and has an adverse visual impact on the highly landscaped streetscape.

16. Hornsby Development Control Plan 2013 (HDCP) Part 3.1.2 requires the minimum setback of all buildings and structures to the boundaries of sites on local roads to be 6m, or where an existing setback of 7.6m or greater exists, it may be necessary to conform to this setback to maintain the streetscape character. The Council states that the latter 7.6m setback applies on this site, and that the structure breaches this, compromising the extensive landscape setting and streetscape character of Park Road.

17. The applicant disputes the consistency of application of the 7.6m setback control, noting that there are other structures within neighbouring setbacks that breach this control. I note that if the 7.6m setback does not apply due to a lack of consistency, under HDCP cl 3.1.2, a 6m setback subsequently applies and the structure still encroaches on this.

18. Regarding other structures in the building setbacks of neighbouring sites, I was directed on site to observe various carports and structures within the building setback along Park Road. I note that Mr Miles states in Exhibit 4 that these are approved structures, and that, as I observed on site, all are visually lightweight and open. No contrary evidence was brought by the applicant on the approval status of these structures, and I accept the evidence of Mr Miles that the visual impact of these nearby structures is substantially less than that of a shipping container.

19. The applicant presented a series of photographs of shipping containers in the vicinity of his residence. He confirmed in evidence that two of the sixteen photographs showed containers in residential properties, and the remainder were located within the rail corridor, nearby school, or on either commercial or industrial sites. No evidence was provided on the development consent, context, detailed visual impact or permissibility of either residential example; and I am therefore unable to rely on them as evidence.

The additional trellis surrounding the structure

20. Since the date of issue of the Order and as observed on site, the applicant has erected a trellis and shade cloth surrounding the structure in an attempt to camouflage it and reduce the visual impact from the street. Although the applicant states that this will sufficiently screen the structure in due course, I concur with the Council’s position that in its current state this further detracts from the streetscape and increases the adverse visual impact.

21. The Council further states that this trellis structure is considered a privacy screen, which requires consent within the building setback. They request that the removal of this trellis be added to the Order.

22. It is subsequently clear that this additional trellis should be removed concurrently with the structure it surrounds. To facilitate this addition to the Order, the Court must exercise the powers set out under s 8.18(4) of the EPA Act. Those powers are as follows:

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

The applicant’s grievance with the Council’s internal process

23. Finally, the applicant presented a substantial grievance with the Council’s internal process and procedure, for which he has lodged a complaint with the Council (Exhibit D, tab H). This has no impact on the substantive issues of this hearing, which are the lack of development consent and visual impact of the structure.

The structure lacks development consent and has an unacceptable visual impact

24. It is clear from the evidence that this structure is a ‘building’ as defined by the EPA Act, and requires development consent. Council has consistently advised the applicant to seek development consent, however none has been sought or granted.

25. I accept the evidence of Mr Miles that the visual impact of the structure and surrounding trellis is unacceptable. Irrespective of whether the landscape setback is a consistent 7.6m or the lesser 6m, the two structures encroach at least 2m into this setback, presenting a visually obtrusive, solid form that is inconsistent with the streetscape.

26. Further, I concur with the Council’s position that the recently-added trellis forms an additional unauthorised structure within this setback and that, as its sole purpose is to screen the unauthorised shipping container, it should also be removed under the current Order.

27. In these proceedings, the applicant has provided no basis upon which I should find the Order invalid, and therefore I conclude that it must be complied with.

28. For these reasons, it is my considered opinion that it is appropriate to allow the appeal and make orders for a modified development control order pursuant to s 8.18(4)(b) in the manner requested by the Council.

29. Accordingly, the Court orders that:

1. The appeal is upheld.

2. The Demolish Works Order issued on 30 July 2021 is modified pursuant to s 8.18(4)(b) to require the following works:

1. Remove the shipping container, trellis structure and associated shade cloth from the front north-eastern corner of the Premises, as identified in Figure No. 1 and Images No. 1 – 4 (attached to this Order).

……………………….

E Washington

Acting Commissioner of the Court

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Decision last updated: 23 November 2021