Jambrecina v Blacktown City Council

[2008] NSWLEC 1505

Land and Environment Court

of New South Wales

CITATION:	Jambrecina v Blacktown City Council [2008] NSWLEC 1505
PARTIES:	Applicant: Jadranka Jambrecina Respondent: Blacktown City Council
FILE NUMBER(S):	10820 & 10821 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Building Certificate - Development Application :-
DATES OF HEARING:	22/12/2008
EX TEMPORE JUDGMENT DATE:	22 December 2008
LEGAL REPRESENTATIVES:	Applicant: in person Respondent: Mr P Kelso, solicitor of Bartier Perry

JUDGMENT:

-

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 December 2008

10820 of 2008 Jadranka Jambrecina v Blacktown City
10821 of 2008 Council

JUDGMENT

1 Senior Commissioner: These are two appeals against decisions of Blacktown City Council (the council). Appeal No 10820 of 2008 is an appeal against the council’s refusal of a development application to use six sheds in the rear yard of 29 Knox Road, Doonside for recreational activity. Appeal No 10821 of 2008 is an appeal against the council’s refusal of a building certificate for the six sheds mentioned above.

The site

2 The site is the rear yard of 29 Knox Street. It is in a typical low-density residential area. Its area is 1,214m2. The existing residence is 134m2 in area. Adjoining properties have outbuildings in the rear. The subject property contains six sheds, of which two near the southern boundary have been there for many years, though no council approval can be found. The other four sheds date from 2006, are prefabricated and placed close to each other in the rear of the site near the northeast corner. The total area of the six sheds is 76m2.

The proposal

3 The four sheds in the northeast corner are the subject of the appeal, the council having approved the two sheds near the southern boundary. The applicant proposes to continue using the four sheds for various purposes, including studio, study, greenhouse and laundry.

4 The applicant lodged the application for the use of the six sheds in June 2008. Following notification the council received a petition signed by seven persons. The council partly approved the application in September 2008, allowing the use of the two sheds near the southern boundary and refusing the use of the four sheds near the northeast corner.

The statutory framework

5 Blacktown Local Environmental Plan permits sheds in rear yards of allotments in the Residential 2A zone with consent. The LEP requires that structures should be capable of visual integration with the surrounding environment. Development Control Plan for Residential Zones specifies that garages, carports, awnings and sheds should not be designed in isolation, but should be designed as part of a holistic approach to the property.

The council planner’s evidence

6 Mr Neville McDonald, a council planner, put the council’s case to the Court. Mr McDonald’s first position is that the four sheds should be demolished because they are prefabricated and are suitable only for temporary use. His fallback position is that, if the sheds are allowed to stay, they should be located 3m from the rear boundary and 2m from the side boundary.

Consideration

7 I accept Mr McDonald’s opinion that the four sheds appeal temporary and are unattractive. Despite this, I do not think that their removal is justified for the following reasons:

· The site is very large. The total area of house and six sheds is less than 20% of the site. The general appearance of the rear yard is spacious.

· The sheds cannot be seen from the street and are only slightly visible from the neighbouring rear yards. If they are moved 3m from the rear boundary, they will not be visible from the rear neighbour’s property. The owner of that property is the main objector.

· There are other large structures in neighbouring rear yards, in particular at 31 Knox Road. While those structures are purpose-built rather than prefabricated, the visual bulk is just as large or larger.

8 In my opinion, in the scale of environmental negatives, these four small sheds in the rear corner of a large residential allotment are of extremely minor importance. They seem to suit the applicant’s lifestyle. The benefit of removing them would be so small that it would not compensate for the disappointment caused to the applicant.

9 I have accepted the council’s draft conditions, which include the moving of the sheds 3m from the rear and 2m from the side boundaries. The issue of a building certificate becomes unnecessary as a result of the appeal for development consent (Appeal No 10820 of 2008) being upheld. This is the reason for the dismissal of Appeal No 10821 of 2008.

Orders
Appeal No 10820 of 2008

1. The appeal is upheld.

2. Consent is granted for the use of the structures in the rear yard of 29 Knox Road, Doonside marked A, B, C, D, E and F on the plan of C Petro dated 13/06/08, Job No 0820 as backyard sheds subject to the conditions in Annexure A.

Appeal No 10821 of 2008

1. The appeal is dismissed.

2. Building Certificate in respect of the structures in the rear yard of 29 Knox Road, Doonside marked A, B, C, D, E and F on the plan of C Petro dated 13/06/08, Job No 0820 is refused, it being no longer necessary in view of the consent for those structures in Appeal No 10820 of 2008.

3. The exhibits are returned except Exhibits 3 and A.

__________________
Dr John Roseth
Senior Commissioner