Funtime Investments Pty Limited v Yass Shire Council (No 2)

[2004] NSWLEC 364

Land and Environment Court

of New South Wales

CITATION:	Funtime Investments Pty Limited v Yass Shire Council (No 2) [2004] NSWLEC 364
PARTIES:	APPLICANT Funtime Investments Pty Limited RESPONDENT Yass Shire Council
FILE NUMBER(S):	10870 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Proposed consent orders Matters raised by objectors .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 .
CASES CITED:
DATES OF HEARING:	25 May 2004
EX TEMPORE JUDGMENT DATE :	05/25/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Bilinsky, solicitor B Bilinsky & Co RESPONDENT Mr A Bradbury, solicitor Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

25 May 2004

03/10870 Funtime Investments Pty Limited v Yass Shire Council

JUDGMENT


1 COMMISSIONER: The appeal that is presently before the Court is an appeal against a refusal by Yass Shire Council (as it then was) of Development Application 367 of 2002 for the proposed development of eleven strata villa units at 37 Dutton Street, Yass.

2 The proceedings came before the Court on the first occasion for substantive consideration on 26 March as a proposal, following revision and amendment of the plans, for consent orders to be entered into between the applicant and the council.

3 An examination of the file and the material provided to the Court by the council showed that there were a number of objectors and that those objections were not the subject of any evidence before the Court which would enable those objections to be dismissed.

4 In addition, the provisions of Practice Direction 9 concerning the notification of objectors of the proposed consent orders had not been complied with.

5 I gave directions on that occasion to ensure that the objectors were notified in accordance with the provisions of Practice Direction 9 and provided with an opportunity to address the Court on a further occasion if they wished to do so.

6 The matter came back before the Court on 20 April and it was clear that, on that occasion, although no objectors wished to address the Court, there was still no evidence before me which would enable me to dismiss those objections.

7 The principal objections which remained unresolved were objections by a neighbour to the property, Mr Considine, concerning the proposed fencing - he understanding that a timber paling fence was proposed to be erected along the boundary with his property and he wishing that to be required, by condition, to be erected as a colourbond fence.

8 The second unresolved objection concerned correspondence from the local Historical Society suggesting that the proposed development was out of character with the precinct in which it was proposed to be located.

9 I gave directions concerning the filing of documents dealing with those matters and the requirements for statements of evidence to respond to those issues. A number of documents were filed and served in accordance with those directions and they have been tendered today in evidence before me.

10 With respect to the issue raised by Mr Considine, the council’s Manager, Development Services, Mr Paul De Szell, has prepared a statement of evidence which deals at some length with the issue of the proposed fence and the appropriateness of requiring a colourbond fence, responding in particular to the various elements that were raised by Mr Considine in his objection The principal objection which would be of concern to me was that he, Mr Considine, considered that a timber fence along the boundary would not be in keeping with the heritage nature of the precinct within which the proposed development is to take place. Mr Considine’s objections specifically were that it was not a common feature of internal boundary fencing in this area.

11 At p 14, Mr De Szell concludes that, for a variety of reasons, particularly with respect to the lack of articulation in a colourbond fence and the lack of commonness of that form of fencing in the area, such a fence would be inappropriate. He expresses the opinion that only the use of a timber fence will ensure that the proposed development responds positively to the existing development within the Dutton Street precinct whilst also maintaining privacy and amenity between adjoining properties.

12 I have read Mr De Szell’s report in its entirety (including his curriculum vitae) and am satisfied that I should accept his opinion on that point. I have been provided in addition, with respect to the general heritage issues, with a variety of documents by the council comprising the Yass Township Heritage Study, the Yass Precinct Heritage Audit Final Report of March 2004 and the Yass Heritage Tourism Masterplan Precinct of April 2004. I have examined each of those documents to the extent that they are relevant and am satisfied that the appropriate portions are extracted in Mr De Szell’s report. In addition, I have been assisted by a report filed and served and tendered in these proceedings by the applicant by Mr Graham Edds. Mr Edds concludes that, quoting from the fifth page of his report:
“It is the opinion of the writer that the proposed development satisfies council’s criteria for development adjoining heritage buildings, the architectural drawings indicate single story buildings which have the streetscape appearance of being detached, of masonry brick wall construction with pitched roofs clad with metal roofing, rectangular windows and verandah at the front all conforming with the characteristics of the Dutton Street precinct building stock.”


13 There is nothing in Mr Edds' report that is contrary to or contradicted by the material contained in the studies which are tendered by the council.

14 I therefore propose to make orders granting consent to the development as amended - subject to conditions of consent which, on my note of the exhibits in the proceedings, have not yet been tendered, electronically, by the council. When they are made available to the Court, I will issue appropriate orders in Chambers to give consent to the development.

Tim Moore
Commissioner of the Court