Hunter v Byron Shire Council

[2012] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hunter v Byron Shire Council [2012] NSWLEC 1256

Hearing dates:

9 August 2012

Decision date:

11 September 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The applicant is given leave to substitute the plans filed in the proceedings for the plans entitled "Retaining Wall Plan" and "Rock Wall & Sediment Fence Details", Drawing no H02E and H03, by Rob Aungle and Associates, dated 20 August 2012, annexed hereto and marked "A".

2. The appeal is upheld.

3. The application pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 (Modification Application No. 10.2009.427.2) as amended in the proceedings pursuant to order 1 above is approved.

4. Development Consent No. 10.2009.427.1 granted by the Respondent on 11 December 2009 for a farm storage shed and retaining wall on the land known as Lot 15 DP 1030574, 31 Pinegroves Road, Myocum is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 as follows:

(a) Delete Condition 1 and replace it with the following:

"1) Development is to be in accordance with approved plans. The development is to be in accordance with the plans listed below:

Plan no.	Description	Prepared by	Dated
P1	Site Plan	C.Lonergan	7/9/09
H02E	Retaining Wall Plan	Rob Aungle & Associates	20/08/12
H03	Rock Wall & Sediment Fence Details	Rob Aungle & Associates	20/08/12
P3	Proposed Shed - Elevations, Floor Plan	Oz-Cover	Undated

The development is also to be in accordance with any changes shown in red ink on the approved plans or conditions of consent.

The approved plans and related documents endorsed with the Council stamp and authorised signature must be kept on site at all times while work is being undertaken."

5. The Court notes the Applicants have given an undertaking in writing to the Respondent to remove ALL shipping containers/structures currently erected on that part of the property known as No. 31 Pinegroves Road, Myocum that relates to the modification application the subject of the proceedings ("the development site") within 6 months of the date of these orders and not to use any of the shipping containers erected on the development site during that period for any purpose other than for the purpose of storing equipment or goods ancillary to the conduct of agricultural activities on the land.

6. The Court notes the Applicants have given an undertaking in writing to the Respondent that the unauthorised earthworks and retaining wall currently constructed to the east of the works identified in the plan annexed hereto and marked "A" be returned to the original ground level and to sow the grass seeds for the ground cover within 6 months of the date of these orders so as to reinstate the area to the condition it was in at the date Development Consent No. 10.2009.427.1 was issued (11 December 2009).

7. No orders as to costs.

8. The exhibits are returned, with the exception of exhibit 1.

Catchwords:

MODIFICATION: Consent orders; farm storage shed and retaining wall; resident objectors.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Mr Wallace Alan Hunter and Mrs Joan Pauline Hunter (Applicant)
Byron Shire Council (Respondent)

Representation:

Ms R. Whisker (Applicant)
Mr A. Seton (Solicitor) (Respondent)
Solicitors
Stacks The Law Firm (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

10381 of 2012

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Modification Application No. 10.2009.427.2 (the application) for a proposed farm storage shed and retaining wall, at 31 Pinegroves Road, Myocum (the site).

1. Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the modification application. The principle changes were:

• The storage shed comprising 20 shipping containers and associated retaining wall have been deleted;
• The storage shed granted development consent remains;
• The retaining wall and driveway are to be retained for a distance of 75 m from the fence and gate and a new retaining wall is to be constructed perpendicular to the existing wall, from the height of the existing wall tapering down to ground level.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. In accordance with the Practice Note, two local residents provided evidence at the consent order hearing. The residents' concerns were that they were unsure about the dimensions and position of the proposed shed and retaining walls, as the documentation was unclear. The parties explained the proposed modification and both resident objectors stated that they did not object to the proposal.

1. The development consent had been granted on the basis of a sketch plan, which had been amended by the council officer to delete part of the proposal, by crossing out in red the second shed and retaining wall behind the second shed. The red marks denoted that the driveway was to terminate half way between the two proposed sheds. The parties agreed on site that the driveway and retaining wall is to terminate 75 m from the western boundary fence.

1. Following the commencement of the hearing, the applicant indicated that the modification application plan did not represent the modification he was seeking and that it should be amended to delete the retaining wall at the western end of the shed, as it would obstruct access to the door in the western elevation. Following further a discussion between the parties, the applicant decided to rely on the plan for which consent had been granted and to mark the proposed modification, which is a wall perpendicular to the existing retaining wall, on the eastern side of the proposed shed, a distance of 75 m from the western boundary fence of the site, on the original plan.

1. During the consent orders hearing, it was established that the sketch plan, for which consent has been granted, was not to scale and inaccurate and that a site survey had not been undertaken. The parties agreed that a site survey is required to accurately establish the position of the existing retaining wall and that a proposed modification plan, based on the site survey, would be provided.

1. Documents were tendered and the hearing adjourned, with directions given to provide the additional information.

Directions

1. Directions were made prior to the adjournment of the consent orders hearing as follows:

1. The applicant is to provide a site survey carried out by a registered surveyor and a plan of the proposed modification to the Council by 23 August 2012.

2. Proposed consent orders are to be filed by 30 August 2012 and orders will be made in chambers.

3. Liberty to restore with 48 hours notice.

1. The parties, by consent, sought a one week extension of time to file proposed consent orders, which the Court agreed to. Proposed consent orders were filed with the Court on 6 September 2012.

Conclusion

1. In considering the amended plans (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances.

Orders

1. The orders of the Court, by consent, are:

1.   The applicant is given leave to substitute the plans filed in the proceedings for the plans entitled "Retaining Wall Plan" and "Rock Wall & Sediment Fence Details", Drawing no H02E and H03, by Rob Aungle and Associates, dated 20 August 2012, annexed hereto and marked "A".

2.   The appeal is upheld.

3. The application pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 (Modification Application No. 10.2009.427.2) as amended in the proceedings pursuant to order 1 above is approved.

4. Development Consent No. 10.2009.427.1 granted by the Respondent on 11 December 2009 for a farm storage shed and retaining wall on the land known as Lot 15 DP 1030574, 31 Pinegroves Road, Myocum is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act1979 as follows:

(a) Delete Condition 1 and replace it with the following:

"1) Development is to be in accordance with approved plans. The development is to be in accordance with the plans listed below:

Plan no.	Description	Prepared by	Dated
P1	Site Plan	C.Lonergan	7/9/09
H02E	Retaining Wall Plan	Rob Aungle & Associates	20/08/12
H03	Rock Wall & Sediment Fence Details	Rob Aungle & Associates	20/08/12
P3	Proposed Shed - Elevations, Floor Plan	Oz-Cover	Undated

The development is also to be in accordance with any changes shown in red ink on the approved plans or conditions of consent.

The approved plans and related documents endorsed with the Council stamp and authorised signature must be kept on site at all times while work is being undertaken."

5.   The Court notes the Applicants have given an undertaking in writing to the Respondent to remove ALL shipping containers/structures currently erected on that part of the property known as No. 31 Pinegroves Road, Myocum that relates to the modification application the subject of the proceedings ("the development site") within 6 months of the date of these orders and not to use any of the shipping containers erected on the development site during that period for any purpose other than for the purpose of storing equipment or goods ancillary to the conduct of agricultural activities on the land.

6.   The Court notes the Applicants have given an undertaking in writing to the Respondent that the unauthorised earthworks and retaining wall currently constructed to the east of the works identified in the plan annexed hereto and marked "A" be returned to the original ground level and to sow the grass seeds for the ground cover within 6 months of the date of these orders so as to reinstate the area to the condition it was in at the date Development Consent No. 10.2009.427.1 was issued (11 December 2009).

7.   No orders as to costs.

8.   The exhibits are returned, with the exception of exhibit 1.

___________________

Susan O'Neill

Commissioner of the Court

**********

Decision last updated: 11 September 2012