Harvey v Kiama Municipal Council

[2006] NSWLEC 520

Land and Environment Court

of New South Wales

CITATION:

Harvey v Kiama Municipal Council [2006] NSWLEC 520

PARTIES:

APPLICANTS
James Harvey and Deidre Harvey

RESPONDENT
Kiama Municipal Council

FILE NUMBER(S):

10426 of 2006

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Section 121 Order, conversion of a double garage to a living room, building setback, parking of vehicles, impact on streetscape and public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act s 121

DATES OF HEARING:

14/08/2006

EX TEMPORE JUDGMENT DATE:

08/14/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Mantei
SOLICITORS
Kells the Lawyers

RESPONDENT
Mr C Fuller, manager development assessment
Of: Kiama Municipal Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

14 August 2006

10426 of 2006 James Harvey and Deidre Harvey v
Kiama Municipal Council
JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This is an appeal under s 121 ZK of the Environmental Planning Assessment Act (the Act) against the Kiama Council’s issuing of an order to require the reinstatement of the original garage area shown in a building application that was originally approved in 1982 being DA No. 47/82. The property is located at 96 North Kiama Drive, Kiama Downs, and it adjoins a beachfront reserve to the beach.

2 The applicant has appealed under 121 ZK of the Environmental Planning Assessment Act against the order and the Court on appeal has the ability to modify, revoke or impose or confirm the order.

3 The Court this morning has had the opportunity of understanding the context in which the dwelling house sits, built in approximately in 1983 or thereabouts, and the street, the street contains various styles of dwelling houses from approximately that time. There is evidence of newly constructed dwellings, renovations and refurbishments. The subject site is on the ocean side of the street and is adjoined by a beachfront reserve that has a setback of some 15 m.

4 The Court was taken on the view to a number of dwelling houses that have garages forward of the building line council’s 7.6 m building line, a requirement in terms of its DCP.

5 The Court on an appeal for the issuing of an order has regard to the individual circumstances and in fact whether the order warrants being complied with in terms of the individual circumstances in the context of but not bound by the planning controls. The Court in the assessment of the application can take into consideration matters such as impact on adjoining properties, impact on the environment and whether the order should be complied with in terms of the public interest.

6 The matter under consideration is the conversion of the majority of the double garage to a living room. This has taken place by all except for some 2 m where an external wall has been constructed and this provides for a small storage area between the wall of the living room and the garage doors. The applicants have converted what was the garage space originally built as the double garage for the subject dwelling to an alternative living area for the dwelling.

7 On the view it could be seen that there have been encroachments allowed to council’s 7.6 m front building line. However, either the majority of the dwellings comply with the setback or there is only a minor variation to that setback for a number of dwellings. There are some dwelling houses that have garage structures as close as 2 m from the front boundary and this would be the case if there was a garage allowed to be constructed in front of the existing converted area in this dwelling house.

8 While it is not a matter for my consideration in these proceedings, it is noted that a plan was submitted to the council which caused the council to be alerted to the fact that there had been an unauthorised conversion of this existing garage area for the purpose of an alternative living area in the subject dwelling. That particular application showed or detailed a garage forward of the unauthorised living room wall to the street to be approximately 2 m from the street boundary. The council indicated to the applicants that it would not support the application and the applicants subsequently withdrew the application. It is noted that the plans do not contain levels to assess accessibility requirements etc., but the plan is not the subject of a merits assessment in these proceedings before the Court. It is however, noted that because of the raising of the level to access the proposed new garage that the floor level is considerably higher than the floor level of the dwelling and any garage structure would be of considerable height in the streetscape.

9 The Court is not persuaded that the order should not be complied with in the circumstances of this case. The dwelling proposed originally approved contained a double garage at the front of the dwelling with the minimum setback proposed at that point in time of some 6 pm. Whilst the garage is now converted to provide an alternative living area this is not in the Court’s mind a reason that should outweigh the need for compliance with the order and in my determination I am not persuaded that reinstating the garage would be unreasonable or create hardship in the circumstances of this case.

10 Any applications to modify the dwelling that would have to be submitted to the council and assessed on their own merits. In this regard it is noted there is a proposed application that shows an extension to the main living area to the ocean side for part of the current open verandah to be enclosed that would have to be considered on its merits. And there are opportunities within the existing dwelling in terms of reconfiguration of space to provide separate living areas if so desired.

11 The conversion of the garage to an alternative living area cannot be supported and the Order should be confirmed.

12 The Court has heard submissions from the applicants’ solicitor that because of their particular circumstances of being overseas that a longer period for compliance should is requested. I can see no reason as to why the Court should not agree to a longer period. Therefore from today the 14 August 2006 a four month period is granted for the s 121 Order to be complied with. That is the Order is varied to 15 December 2006 to allow applicants the opportunity to undertake compliance with the terms of the Order in a timely manner having regard to their circumstances.

13 Accordingly the formal orders of the Court are:

1. The appeal under s 121ZK of the Environmental Planning and Assessment Act is dismissed.

2. The s 121 Order issued 26 April 2006 by Kiama Municipal Council for the property known as No. 96 North Kiama Drive, Kiama Downs, to provide the double garage as generally shown in the Building Application 47/82 is confirmed except that the period for compliance is varied and extended to 15 December 2006.

___________________
J S Murrell
Commissioner of the Court
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