Fitzhenry v Hornsby Shire Council - [2010] NSWLEC 1083

Land and Environment Court

of New South Wales

CITATION: Fitzhenry v Hornsby Shire Council [2010] NSWLEC 1083

PARTIES:
APPLICANT
Daniel Fitzhenry
RESPONDENT
Hornsby Shire Council

FILE NUMBER(S): 10851 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Agricultural shed
Unauthorised construction
Prospective use

LEGISLATION 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 Plan

CASES 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 315

DATES OF HEARING: 9 March 2010

DATE OF JUDGMENT:
14 April 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr J Doyle, barrister
Australian Town Planning Consultants 2 Pty Ltd, agent
RESPONDENT
Mr T Pickup, solicitor
Storey & Gough Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

14 April 2010

10851 of 2009 Fitzhenry v Hornsby Shire Council
JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1083
Decision Date: 14 April 2010

CaseChat Overview and Summary

The case of Fitzhenry v Hornsby Shire Council involved an appeal by Daniel Fitzhenry against the refusal by Hornsby Shire Council to grant consent for the construction of a shed on a rural property in Laughtondale. The legal issues centred around the development application for the shed's construction and its prospective use as an agricultural shed. The key legislative and planning instruments cited included the Environmental Planning and Assessment Act 1979, the Land and Environment Court Act 1979, and various local environmental plans and regional environmental plans. The Court had to determine whether the location of the shed within flood-prone land was suitable, the impact on the riverscape and scenic quality, and the public interest, including precedent.

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.

Orders