Geary v Cessnock City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Geary v Cessnock City Council [2017] NSWLEC 1397
Hearing dates:	26 July 2017
Date of orders:	01 August 2017
Decision date:	01 August 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is dismissed. 2.   Development Application No. 8/2016/337/1 for the change of use of an existing garage to a dwelling, at 10 Glennie Street, Ellalong, is refused. 3.   The exhibits, other than exhibits 1, 6, A, C and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION: change of use from a garage in a shed to a dwelling; whether the proposal is consistent with the existing character of development in the street; privacy impacts.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Ireland v Cessnock City Council (1999) 103 LGERA 285
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr Allan Geary (Applicant) Cessnock City Council (Respondent)
Representation:	Counsel: Mr K. Nichols agent (Applicant) Mr A. Pickup solicitor (Respondent)   Solicitors: Local Government Legal (Respondent)
File Number(s):	2017/81584
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8/2016/337/1 for the change of use of an existing garage in a shed to a dwelling and ancillary alterations and additions (the proposal) at 10 Glennie Street, Ellalong (the site) by Cessnock City Council (the Council).

2. The appeal was subject to mandatory conciliation on 26 July 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

3. The Council’s contentions can be summarised as:

• The dwelling as proposed will be out of character with the existing character in Glennie Street and the proposal is contrary to the zone objectives;

• The elevated verandah at the rear of the shed will result in overlooking of the rear yard of 12 Glennie Street;

• Approving a change of use from a shed to a dwelling will set an undesirable planning precedent for the conversion and use of sheds as dwellings and it is not in the public interest to do so.

The site and its context

4. The site has an area of 2131sqm with a frontage of 20m to Glennie Street. The site is on the eastern side of Glennie Street. The neighbouring dwellings on the eastern side of Glennie Street are single storey bungalows, some with a separate garage structure. The allotment sizes on both sides of the street vary widely and 10 Glennie Street is a comparatively narrow allotment when compared to some of the neighbouring properties.

Background and the proposal

5. The shed currently accommodates a double garage with dwelling at the rear of the shed, consisting of a bedroom, a living/dining/kitchen room and a bathroom. There is…