Land and Environment Court
of New South Wales
CITATION: Fitzhenry v Hornsby Shire Council [2010] NSWLEC 1083 PARTIES: APPLICANT
RESPONDENT
Daniel Fitzhenry
Hornsby Shire CouncilFILE NUMBER(S): 10851 of 2009 CORAM: Pearson C KEY ISSUES: DEVELOPMENT APPLICATION :- Agricultural shed
Unauthorised construction
Prospective useLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sydney Regional Environmental Plan No 20 - Hawkesbury/Nepean River (No 2-1997)
Hornsby Shire Local Environmental Plan 1994
Hornsby Rural Lands Development Control PlanCASES CITED: Cranebrook Sales Pty Ltd v Penrith City Council [2008] NSWLEC 1260
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647
Hackett v Hawkesbury Shire Council [2006] NSWLEC 503
Ireland v Cessnock City Council (1999) 103 LGERA 285
Ireland v Cessnock City Council (1999) 110 LGERA 311
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315DATES OF HEARING: 9 March 2010
DATE OF JUDGMENT:
14 April 2010LEGAL REPRESENTATIVES: APPLICANT
Mr J Doyle, barrister
Australian Town Planning Consultants 2 Pty Ltd, agentRESPONDENT
Mr T Pickup, solicitor
Storey & Gough Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCommissioner Pearson
14 April 2010
JUDGMENT10851 of 2009 Fitzhenry v Hornsby Shire Council
1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) from a decision of Hornsby Shire Council (the Council) to refuse consent to development application D277/2009 which sought approval for the construction of a shed on a rural property at 581 Singleton Road Laughtondale, being Lot 1 in DP 1073144 (the site).
2 The development application was lodged on 19 March 2009, after the shed had been constructed. The applicant seeks in these proceedings consent for works proposed to be carried out on the shed and for use of the shed as an agricultural shed.
3 The site is triangular in shape and has a 350m frontage to the Hawkesbury River, and a 45m frontage to Singleton Road. The site has an average fall of 3% from the road to the Hawkesbury River. The majority of the vegetation has been cleared for the purposes of agricultural activities previously carried out on the site. The shed is located 40m from the mean high water mark and 37m from the southern adjoining property, and within the 100 year ARI Hawkesbury River floodplain. There is a dwelling on the site located 80m from Singleton Road, on higher ground above the 100 year ARI.
4 The shed is 16.5m x 9m, and 6.8m high, and is constructed of dark green colourbond, with a roller door on the southern, or downstream, side, on a concrete slab. The proposed works include the replacement of a portion of colourbond panelling 9.5m wide to a height of 3m on the northern side of the shed…
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- Case
- [2010] NSWLEC 1083
- Decision Date
CaseChat Overview and Summary
The Court examined the evidence provided by both parties, including expert engineering evidence regarding the structural adequacy of the shed and the proposed Flood Management Plan. It was determined that the shed was located in a high hazard area and would be inundated in a 100-year flood event. The experts disagreed on the structural stability of the shed and the ability to withstand impacts from floodwaters and debris. The Court concluded that further testing of the concrete slab would be required to ascertain the structural adequacy of the shed.
Regarding the suitability of the site, the Court found that the proposed Flood Management Plan did not adequately mitigate the risks to personal safety, property, and the environment. The Court also considered the potential precedent set by approving a shed in a flood-affected area and the feasibility of relocating the shed to higher ground. The Court ultimately concluded that the site was not suitable for the development and dismissed the appeal, refusing development consent for the construction of the shed.
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Background
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Evidence
Evidence Before The Court
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Decision
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