Delaney v Lithgow City Council

[2005] NSWLEC 238

Land and Environment Court

of New South Wales

CITATION:

Delaney v Lithgow City Council [2005] NSWLEC 238

PARTIES:

APPLICANT
Ross Delaney

RESPONDENT
Lithgow City Council

FILE NUMBER(S):

20012 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Section 124(10) Order - remove unsightly articles - articles associated with approved dwelling within reasonable timetable

LEGISLATION CITED:

Local Government Act 1993, s 124 No. 10

DATES OF HEARING:

22/04/2005 and 04/05/2005

 
DATE OF JUDGMENT: 

05/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Delaney - self represented

RESPONDENT
Mr S Griffiths, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

17 May 2005

20012 of 2005 Ross Delaney v
Lithgow City Council

JUDGMENT

1 This appeal is against council's s 124 Order (Order), under the Local Government Act 1993 – s 124 No. 10, requiring the removal of various vehicles and building articles from a rural/residential property at 11 Vista Place, Little Hartley. The Order requires the following items to be removed within 60 days:

• demountable structures,
• shipping container,
• eight vehicles, including one minibus, red van and 6 sedans,
• tyres,
• playground equipment,
• 2 white caravans, one noted as Wentworth Falls Loins Club,
• timber,
• pink coloured container,
• blue coloured structural steel,
• mini excavator,
• numerous other articles.

2 The reasons for the Orders are:

• The land and premises are being used to store numerous articles which are creating unsightly conditions from a public place being Haven Way and Vista Place, Little Hartley.
• The unsightly conditions are created by the quantity, the prominent location of the articles on the premises, the topography of the land and the disrepaired state of some of the articles.
• The storage of these articles is inappropriate for a rural residential area. It is not compatible with the existing development of the area.
• A number of established dwellings and a dwelling under construction have an outlook towards the land and premises.
• The adjacent escarpment and also the Harley Valley generally have been recognised by the National Trust as a Landscape Conservation Area.
• The land and premises have been subject to a number of complaints.

The evidence

3 According to the owner Mr Delaney, a number of the articles were placed on the land in anticipation of their use in the construction of an innovative dwelling on the lot. The design of the dwelling utilises the demountable structures, together with a rammed earth/tyre wall building system, and the dwelling is to be finally rendered. The shipping container is to be used for temporary material storage and possible future conversion to shedding.

4 In August 2003, a combined development approval and Construction Certificate No. 265/03 was granted for this dwelling, subject to a number of conditions. The development consent is for a period of 5 years. The conditions require further structural engineering details, including assessment of the structural adequacy of the demountables and the proposed rammed earth/tyre wall building system. Also required is:

Condition 23. - The tyres used for the wall construction shall be stored in the shipping container.
Condition 24 - The shipping container shall be removed from the property when (after ?) completion of the dwelling.
Condition 25 - Advanced landscaping shall be provided around the dwelling to screen it from the adjoining properties and the roads.

5 However after placement of the items on the land, Mr Delaney says there are now some uncertainties in the structural condition of the demountables, arising out of their transportation into the site and that further assessment of their utility is required.

6 Apart from this, he acknowledges that the random placement of some of the items, particularly vehicles is unsightly and can be rectified, in the shorter term. But he desires the opportunity of retaining the necessary building components on the site, to eventually build the approved dwelling.

7 The oral evidence from a number of neighbours and residents was given on-site, to the effect that the existing situation presents unsatisfactory visual impacts and is in their opinion unsightly, from various public places.

Findings

8 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the random placement of the various articles, particularly the vehicles around the site, is unsightly. This is inconsistent with the evolving character of this rural/residential valley, where new houses and ancillary structures are being constructed within landscaped settings.

9 Furthermore, I am satisfied that the maintenance of visual amenity is reasonable in this case, particularly as the site is within the visual catchment of the Blue Mountains escarpment that is recognised by the National Trust as a Landscape Conservation Area.

10 Accordingly, I consider it reasonable to issue a revised s 124 (10) Order to require the removal or stacking of the various articles to address the unsightly conditions, arising from the subject property. Such orders should require the removal of articles not associated with the building within a short period of time and allow a reasonable time for the necessary structural assessments to be undertaken to establish the future building program, in accordance with the provisions of the Construction Certificate conditions.

11 From the discussions between the parties, I consider it reasonable that the removal actions be considered in 3 stages, which allows sufficient time to now assess the structural condition of the demountables, to ascertain whether they can be used for intended purposes. This is in line with the conditions of the Construction Certificate, issued in August 2003, requiring various structural certification, which has not been provided to date, despite the demountables/other structures being placed on the land.

12 In this regard, I note the council's preferred alternative Order is to generally remove the majority of the articles within 60 days. Then the applicant is to remove the other demountable structures, the shipping container, the structural steel, timber and backhoe within 120 days, unless the construction of the dwelling approved pursuant to development consent 265/03 by compliance with conditions to, 10, 11, 12 and 33 thereof is commenced. Council further qualifies this as follows:

• That the Applicant shall remove the demountable structures, the shipping container, the structural steel, timber and backhoe which from the Land within one hundred and eighty (180) days unless within that time all foundations and piers are in place pursuant to DA 265/03 and the demountables structures are properly located thereon.
  
• Providing the applicant has satisfied the requirements of Order No. 4, the applicant shall remove any structural steel and timber not used in the construction of the dwelling from the land within two hundred (200) days.
  

13 Against this, I have considered the applicant’s submissions that building activities are permitted on this rural/residential lot and the storage of building components is consistent with this. Furthermore, the Construction Certificate allows a 5 year period of operation, with no actual commencement time requirement.

14 Nevertheless it appears to me, that this building design is of an innovative and unusual nature, by utilising the recycling of the demountable buildings and incorporating the compacted earth/tyre wall system. Consequently, the storage and placement of the various building components on the site in this case, apparently well in advance of the actual construction, is causing the unsightly conditions. This is in contrast to the usual building material storage/placement associated with conventional dwelling construction.

15 Therefore because of the unusual circumstances of this case, I consider it reasonable now that appropriate decisions be made regarding the ability of the demountables to be used as envisaged in the approved development. Otherwise, they along with the other associated articles should be removed, so as to reduce the unsightly conditions that currently exists.

16 In my assessment of the evidence, this decision and action framework can reasonably be undertaken within the following 3 stages. In setting the time frames I have taken into account the evidence and prior correspondence and negotiations between the parties to resolve the matter, as detailed in the chronology in the Statement of Basic Facts.

Stage 1: Involves the removal of all the various vehicles, the van with the Wentworth Falls Lions Club markings, the pink coloured container, within 60 days. Also all the tyres remaining on the property should be placed within the shipping container, as required by the conditions consent, within this period.

Stage 2: Allows the property owner the opportunity of obtaining appropriate structural engineering advice about the adequacy of the demountable structures and the associated building techniques, to decide if and when the approved development can proceed. This structural engineering advice should nominate complete details of any rectification requirements to the demountables to facilitate their use in accordance with the Construction Certificate. Such advice should be obtained and provided to the council within 90 days.

Following this, the applicant can decide whether to proceed with the approved building on the site. However the rectification works, if any are specified by the engineer, should then be undertaken within a reasonable period and the demountables and associated articles stacked on the site, so as to reduce the unsightly impacts, until dwelling construction is to proceed, in accordance with the approved conditions. Otherwise, the demountables and other articles should be removed, if it is not feasible to use them as approved.

Considering the applicant's situation, I consider a reasonable period for his assessment of the structural engineer’s advice and determination of the future of the building articles is a further 90 days, i.e. 180 days from the date of this Order. Within this period, the applicant should complete the specified rectification work and stack or place the demountables together, adjacent to the building site, to facilitate the future construction and minimise the unsightly conditions.

Furthermore, in the event that the dwelling is to proceed, I consider that the applicant take action to implement Condition 25, whereby some advanced landscaping be provided to screen the temporary demountables and associated articles. Such landscaping should form part of the ultimate landscaping proposed on this rural/residential lot and should be substantially commenced within the 180 days period from the date of this Order.

Also in this event, all exposed surfaces of the other articles required for the ultimate building, should be painted to match the colour of the demountables, so as to minimise the unsightly conditions. This painting to be undertaken within the 180 day period from the date of this Order.

Stage 3 : In the event that the structural advice required by the conditions consent, shows that these demountables and associated articles on the site cannot feasibility be utilised to achieve the approved dwelling, they should all then be removed from the site within a further 180 days i.e. 180 days from the date of this order.

1. The appeal is upheld.

2. A revised section 124(10) Order in accordance with the provision of Local Government Act 1993 is issued in the form shown in Attachment “ A”.

____________________
R Hussey
Commissioner of the Court
rjs