Graham P S v Baulkham Hills Shire Council
[2008] NSWLEC 1247
•16 June 2008
Land and Environment Court
of New South Wales
CITATION: Graham P S v Baulkham Hills Shire Council [2008] NSWLEC 1247 PARTIES: APPLICANT
RESPONDENT
Peter S Graham
Baulkham Hills Shire CouncilFILE NUMBER(S): 10325 of 2008 CORAM: Watts AC KEY ISSUES: Section 97 Appeal :- Inaccurate and misleading drawings LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005, (BHLEP) Baulkham Hills Development Control Plan, (BHDCP) DATES OF HEARING: 16/06/2008 EX TEMPORE JUDGMENT DATE: 16 June 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr M E McMahon, solicitor
SOLICITORS
M E McMahon & AssociatesRESPONDENT
Mr C Winn, solicitor
with Mr M Pearce, instructing solicitor
SOLICITORS
Baulkham Hills Shire Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESWatts AC
16 June 2008
10325 of 2008 Peter Graham v Baulkham Hills Shire Council
JUDGMENT
1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Baulkham Hills Shire Council of a development application to extend the building platform, to erect a new dwelling house and to erect a temporary dwelling house that would be subsequently used as a studio on land at Lot 102, DP 1091943, being No 851 River Road, Lower Portland.
2 I visited the land in company with the parties on the morning of the hearing. There were no resident objectors.
3 I have concluded that as a result of inadequate and misleading plans describing the proposal, the application cannot be approved. The discrepancies are so extensive as unable to be easily corrected and in a timely manner.
The land
4 The land is largely situated on the southern side of River Road south of the Hawkesbury River at Lower Portland near Wiseman’s Ferry. River Road cuts the land that has an area of some 10 hectares in two portions. The smaller portion is near the river and the larger portion includes the proposed building platform on which it is proposed to erect a new dwelling house. Most of the land is flood liable being below 10.1m AHD, the 1 in 100 year flood level. However, the building platform on a wooded rise has a level of 11m AHD and greater.
5 Allotments of land of around 10 hectares predominate in the locality and most houses are single storey.
6 A restriction as to user defines the building platform on Lot 102 of the deposited plan. Its extent is shown on DP 1091943 and states, [Note: Exhibit A, Statement of Environmental Effects].
(a) No structure or structures shall be erected on the lot hereby burdened beyond the area marked (D) on the abovementioned plan without the prior written consent of Baulkham Hills Shire Council.
(b) In accordance with Part 2.3.4 of the ‘Building Code of Australia’, the application of Level 3 Construction of the Construction Standard AS 3959 (1999) applies to future development on the lot hereby burdened. Should alternative building platforms and associated Asset Protection Zones be approved in writing by Baulkham Hills Shire Council, the level of construction is to be reassessed and implemented accordingly.
(d) The name of the authority whose consent is required to release, vary or modify the terms of the restriction on the use of the land secondly referred to in the abovementioned plan is Baulkham Hills Shire Council provided that any consent that may be given shall be made or done in all respects at the cost and expense of the person or persons requesting such consent.(c) No building, storage structures or other improvements shall be erected on the lot hereby burdened unless a development application is approved in writing by Baulkham Hills Shire Council that includes the creation of an Asset Protection Zone including an Inner Protection Zone, being the area marked (E) on the abovementioned plan. This area is to be clearly identified on plan(s) submitted with the development application. No tree shall be permitted to overhang any future proposed dwelling. The area is to be kept free of flammable/combustible materials, rubbish and debris at all times and is considered suitable for lawns and separated trees with a non-continuous canopy in accordance with Planning NSW and NSW Fire Service’s ‘Planning for Bush Fire Protection’ (2001) or as amended thereto.
7 Thus without the council’s consent, or the consent of the Court on appeal no development can take place outside the building platform marked (D) on the deposited plan.
8 Surrounding the building platform is an asset protection zone. The purpose of this is to reduce the threat of bushfire on life and property.
Relevant planning controls
9 Under the provisions of the Baulkham Hills Local Environmental Plan 2005, (BHLEP), gazetted 26 August 2005, the land is zoned Rural 1(b) and the proposal is permissible with consent.
10 The land is also subject to Baulkham Hills Development Control Plan, (BHDCP) and Part C, Section 1 relates to Rural 1(b) land.
11 Development application No 1159/2008/LA was lodged with the respondent council on 21 December 2007. The development application sought:
- an extension of the building platform marked (D) and the asset protection zone (E) on the deposited plan;
- the construction of a two storey dwelling house;
- the construction of a temporary dwelling/detached studio outside the building platform; and
- construction of stairs and in-ground swimming pool.
Notification
12 The application was notified to four nearby owners and occupants and the council received no submissions.
13 By letter dated 15 January 2008 the applicant advised the council that:
The plans submitted in this application indicate the proposal to construct a substantial dwelling and studio. The studio shows kitchen facilities that would indicate two dwellings on site. This is not our intention.
On completion of the residence, the first dwelling would be converted to a studio by removal of the kitchen so that at any one time there will only be one residence on site.It is our intention that the construction will be carried out in two stages. The studio will be constructed first with all necessary amenities for occupation so that the site can be occupied.
14 There have been communication between the applicant and the council and the council sought information about the on-site management system and the siting of the pool below the flood line.
The council’s decision
15 When the appeal was filed the council had not determined the application.
The hearing
16 The appeal was filed on 4 April 2008.
17 At the hearing the Court heard evidence on behalf of the respondent council from Mr Tony Brown, Senior Health and Building Surveyor.
18 On behalf of the applicant evidence was given by Mr Peter Graham, surveyor.
19 On 30 April 2008 the council filed a statement of contentions. The council considered the application should be refused for reason of it being prohibited development:
- as there would be a second free standing dwelling on the land upon completion of development;
- the separate studio is not within the list of permissible uses within Item 3 of the land use table;
- the separate studio could be used as a home activity and exceeds a total floor area of 50m2.
20 The council was also concerned that insufficient information had been provided to properly assess the application. The council required a detailed water and waste water report, a BASIX certificate and more information on home activity. The council also considered the site not suitable for the proposed development as it would not be consistent with the zoning objectives under the BHLEP.
21 The salient issue was the inadequacy of documentation supporting the application.
- Inaccurate and misleading plans
22 The plans for the main dwelling house did not show the correct levels. The ground floor was shown as being at 10.6m AHD and Mr Graham indicated that this should be changed to be over 11.0m AHD to avoid cut and fill over the building platform. The ground levels within the building platform varied from around 11.0m AHD to over 12m. The proposed change in levels would affect the level of the proposed ground and first floor of the proposed main dwelling.
23 The plans show proposed new stairs leading to the supposed in-ground swimming pool to the north of the proposed dwelling. The proposed swimming pool surround is shown at 5.8m AHD or 4.8m below the ground floor of the proposed dwelling at 10.6m AHD. The natural ground level near the pool is shown around 400mm below the pool surround or around 4.4m AHD. However, the pool surround is shown on plan to extend to Tree No 13 where the ground line at its base is shown at 2.59m AHD. Thus the level of the pool structure would be around 3.21m lower than the level shown. (The difference would be greater were the ground floor level set at over 11m AHD.) Tree No 13 with a trunk diameter of 700mm and spread of 12m is shown as being retained, however, it was agreed on site that this tree could not be retained if a retaining wall of at least 3.5m in height intersected with it. The retaining wall would be higher presumably if the ground floor of the dwelling were raised as suggested by Mr Graham.
24 Mr Graham also suggested that a proposed new driveway would access the proposed studio/temporary dwelling house. This is not shown on the plans and cannot form part of the application. Also it might be contrary to the terms of the restriction as to user as within the building platform “no structure or structures shall be erected on the lot without the prior written consent” of the council.
25 The court’s practice directions indicate the documentation necessary to support a development application and this application falls well short.
26 Given that the plans accompanying the application are inaccurate and misleading as to the levels and the extent of the proposal, the application is dismissed. The discrepancies are so extensive as unable to be easily corrected in a timely manner.
27 It is not necessary for me to address the other contentions in this case.
28 Mr McMahon requested guidelines for future development of the land and the following were discussed on site with the parties.
- The proposal should make best use of the building platform. A design that is confined to the building platform is more likely to receive approval than one that is not. This is because any proposed dwelling situated in rural land should be compact for aesthetic and functional reasons. However, an exemplary design might justify a minor extension of the building platform.
- An exemplary rectilinear design largely situated within the existing building platform, might be permitted to extend beyond the retaining wall defining the building platform for a distance of say 4m. Similarly, a curved design of exemplary design might extend beyond the retaining wall defining the building platform for a distance of 4m. A change to the extent of the building platform would need to be effected to include all proposed structures.
- Ancillary structures and buildings should also be situated within the building platform.
- Within the building platform cut and fill should not exceed 1.5m.
- The proposed 20m-wide asset protection zone for bushfire protection should be contained within the site boundaries of Lot 102.
29 For the above reasons, the appeal is dismissed.
30 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
3. The exhibits except for Exhibits A and 2 are returned.2. Development application No 1159 of 2008 to extend the building platform and to erect a new dwelling together with a temporary dwelling that is to be converted to a studio at Lot 102, DP1091943, being No 851 River Road, Lower Portland is refused consent.
___________________
- S J Watts
Commissioner of the Court
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