Canham v Campbelltown City Council

[2004] NSWLEC 575

Land and Environment Court

of New South Wales

CITATION:	Canham v Campbelltown City Council [2004] NSWLEC 575
PARTIES:	APPLICANTS Geoffrey and Kerry Canham RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10817 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :- .
LEGISLATION CITED:	Development Control Plan 79 Campbelltown Local Environmental Plan 2002 .
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; .
DATES OF HEARING:	18 October 2004
EX TEMPORE JUDGMENT DATE :	10/18/2004
LEGAL REPRESENTATIVES:	Applicants in person RESPONDENT Mr D Baird, solicitor Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

18 October 2004

10817 of 2004 Geoffrey and Kerry Canham v Campbelltown City Council

JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 2 December 2003 by Campbelltown City Council (the council) of an application for the erection of a carport at 26 Kalyan Avenue, Bradbury (the premises).

2 The reasons that the council has given for the refusal of the application are, in effect, that the structure is proposed to be built in front of the building alignment and that, as a consequence of that and the provisions of Development Control Plan 79 (the DCP), it would have an unacceptable impact on the surrounding area.

3 Mr Baird, solicitor for the council, has taken me to the provisions of the Campbelltown Local Environmental Plan 2002 (the LEP).

4 The property is zoned Residential 2(b) and development of the nature sought is subject to the provisions of the objectives of the zone.

5 Mr Baird has submitted to me that it is in conflict with the provisions of objective 2(e)(ii) and that it is not visually integrated with the surrounding buildings in that it is contrary to a further objective of the zone which is the encouragement of a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.

6 The specific provisions of the DCP prayed in aid by the council are those relating to setback which are set are out in some detail and, relevantly, require a front building line setback from the public street boundary in the range of 5.5 to 7.5 m. The proposal does not comply with this.

7 However, the setback provisions also provides that a building may be built to a zero lot line to the side and rear boundaries or a reduced front setback subject to assessment of site suitable and circumstances.

8 There is an expansion of that provision in the subsequent material which include this and exception the following:

An open carport, open porch, awning, pergola or similar structure may extend to the boundary line of the allotment if the council is [ and then words are omitted but logically necessary ] of the opinion that it will not materially affect the amenity of any adjoining site and is in compliance with the requirements of the Building Code of Australia.

9 It is not submitted that what is proposed fail to meet the requirements of the Building Code of Australia.

10 Mr Baird submits to me that I should read this provision as if the words “with the adjacent site” were incorporated after the words “of the allotment” in the second line of the definition.

11 I am not prepared to accept such a construction although it is the basis upon which the council has applied the current DCP. I do accept the evidence given on behalf of the council that this is how the DCP has been applied.

12 However, the ordinary English interpretation of the clause does not qualify the boundary line so as to incorporate any restriction on it.

13 The ordinary English meaning of the words in the clause, in my view, means any one of the four boundaries of the allotment. To require it to mean something else requires implication of words which are not present in the clause.

14 I accept the position that the council, in its draft Development Control Plan, which is currently on exhibition, proposes to address this so that such ambiguity or uncertainty is not in existence in the future.

15 However, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I am obliged to use the present DCP as the focus or starting point for my consideration.

16 In doing so, I consider that I am obliged to give the ordinary English language meaning to the relevant clause. This does not require the insertion of the "missing" words.

17 Mr Baird also takes me to design issues relating to the possibility for the present carport which is contained in the car access and parking provisions.This relevantly contains the sentence that for each single dwelling (included for integrated development) there must be two on-site car parking spaces one of which must be behind the building line and under cover.

18 The clause does not preclude there being more than one car parking space on the site, it merely requires one must be behind the building line and under cover.

19 In the present case, I was shown the existing garage space within the dwelling where there is an intruding flue from a gas heater which is installed in the lounge room of the premises.

20 Mr Canham put that it would not be possible to relocate the flue in order to make that space available for parking.

21 There was no immediately obvious design option which would permit such a flue redesign to take place and it is a matter of public record that the Environment Protection Authority has undertaken studies of unflued gas heaters and come to the conclusion that they emit unacceptable levels of oxides of nitrogen.

22 It would be unreasonable, in my view, to require the Canham’s to operate with an unflued gas heater and it was not readily apparent how the heater could be flued in any alternative fashion.

23 The council has put in its documents that it does not accept that this is a reason advanced by the applicant for permitting the setting aside of consideration of the present garage. However, I am prepared, under the circumstances, to do so.

24 I walked the length of the street with Mr and Mrs Canham and the representatives of the council. Whilst doing so, I observed the fact that there are a number of other approved structures and one unapproved structure in the front of other buildings that provide, through those structures, off street car parking to those dwellings.

25 Mr Baird has informed me that the council proposes to investigate enforcement action relating to the structure immediately opposite which is the one which has been erected without consent and is said to be non-compliant.

26 It is also fair to say that Mr and Mrs Canham have more generous landscaping in their front setback area than do any of the other properties in the immediate visual catchment in the street. Absent such landscaping, the proposed carport would be much more intrusive than would otherwise be the case. I can see no adverse impact that such a carport, properly designed and constructed, would cause to the Canham's neighbours.

27 As a consequence, I am prepared to conclude that the erection of some form of carport in the front setback – subject to a proposed setback of it 2.2 m from the front boundary – would not be unreasonable.

28 However, the council has made a number of criticisms of the design and materials in the present plans.

29 I consider that it would be desirable for those to be discussed further between the appropriate officer of the council and Mr & Mrs Canham and their builder to see if a better and more acceptable design can be reached by agreement as I am not convinced that the design (as opposed to the existence) of the carport is acceptable.

30 However, I have reached the conclusion, as a matter of principle, that the erection of some modestly sized carport, in sympathetic and appropriate materials, would be acceptable in the front setback. I therefore propose to set the matter down for callover before the Registrar on Tuesday 16 November 2004 which would enable sufficient time for further discussions to take place between officers of the council and Mr and Mrs Canham.

31 I would hope it might be possible at that time for agreed revised plans and conditions to be submitted. If such agreed revised plans and conditions are able to be settledand are filed, I will make orders in Chambers and vacate the hearing date.

32 I also grant liberty to re-list the matter before me on two days notice at 9.00 am if the parties wish.

Tim Moore
Commissioner of the Court