Julie Kaye Fischer v Greater Hume Shire Council (Formerly Holbrook Shire Council)

[2004] NSWLEC 459

Land and Environment Court

of New South Wales

CITATION:	Julie Kaye Fischer v Greater Hume Shire Council (Formerly Holbrook Shire Council) [2004] NSWLEC 459
PARTIES:	APPLICANT: Julie Kaye Fischer RESPONDENT: Greater Hume Shire Council (Formerly Holbrook Shire Council)
FILE NUMBER(S):	10442 and 10443 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Appeal :- The issue in respect of Appeal No 10442 of 2004 is whether the applicant should be required to demolish those unauthorised works specified in the order - The issue in respect of Appeal No 10443 of 2004 is whether appropriate time has been given to permit the applicant to comply.
LEGISLATION CITED:	Holbrook Interim Development Order No 1, (HIDO1)
CASES CITED:
DATES OF HEARING:	17/08/2004
EX TEMPORE JUDGMENT DATE :	08/17/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Woolf, solicitor SOLICITORS: Woolf Associates - city agents for Richard Leyland RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

Appeals No: 10442 of 2004 and 10443 of 2004

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

17 August 2004

10442 and 10443 of 2004

Julie Kaye Fischer v Greater Hume Shire Council (Formerly Holbrook Shire Council)

JUDGMENT

1 Both appeals are under s 121ZK of the Environmental Planning and Assessment Act 1979 and are from Orders under Section 121, Order No 2 and Order No 13 of the Act issued by Greater Hume Shire Council (Formerly Holbrook Shire Council) in respect of alleged unauthorised works to alter and add to an aircraft hangar at Lot 17, DP804653, Holbrook Airfield, Airpark Road off Wagga Wagga Road, Holbrook, NSW, 2644.
2 I visited the land in company with the parties on the morning of the hearing.
3 The parties have reached agreement as to the orders that could be given effect to by the Court. I endorse the agreement reached and note the undertakings given by the applicant.

The land
4 The land is situated on the southwestern side of Airpark Road at Holbrook Airfield. The land is rectangular in plan and has a 30m frontage and 60m depth giving an area of some 1,800m2. At the rear of this lot in another vacant lot being Lot 24, DP 848461, also owned by the applicant and which adjoins the taxiway of the airfield. The land has a northeastern frontage and is relatively flat.
5 Erected on the land is a large steel framed, sheet-metal-clad building (aircraft hangar) with attached carport, pergola, decking and associated stairways 345m2 for the hangar, 137m2 for ground floor living, 78.5m2 of first floor living giving around 560.5m2 in total area. Within the hangar are at least four living units with associated kitchen and bathroom facilities on two levels, stairways and a briefing room formerly associated with the operation of the Holbrook Aviators’ Group. The facilities and amenities in the living areas of the building include five sinks, four water closets, four hand washbasins and four showers. The units are at the Airpark Road end of the building.
6 There are trees within the front yard. The remaining vegetation consists of small shrubs and trees at the side and in front of the structure.
7 Nearby are other aircraft hangars at least one has approved living quarters in the nature of a single dwelling.

Relevant planning controls

Holbrook Interim Development Order No 1, (HIDO1)
8 The land is zoned 1(B) - non-urban "B" under HIDO1, a deemed local environmental plan. Within this zone, prohibited development includes ‘residential buildings’. A ‘residential building’ is defined under the applicable model provisions as “…a building used or intended for use as a residential flat building, a boarding house, a lodging-house or a hostel, but does not include a motel.”
9 A ‘dwelling house’ is permissible within the zone 1(B), with the council's consent. ‘Dwelling house’ is defined under the applicable model provisions to mean “…a building intended for use as a dwelling for a single family, together with such outbuildings as are ordinarily used therewith and includes... semi-detached or terrace buildings.”

The approval history
10 Building application BA No 36/90 was approved prior to July 1990, as a hangar.
11 Building application BA No 54/90 for a workshop addition was approved by the council in September 1990. The approved plan indicates a hangar with attached workshop and an unattached residence. It appears that that residence as indicated on the plans was never constructed.
12 Building application BA No 36/92 sought additions to the workshop. The plans were a copy of the plans submitted with BA No 54/90. Those plans were approved but again it did not appear that the residence was erected.
13 The council received building application BA No 38/97-8 on 27 April 1998 for an extension of the existing hangar. The approved plans dated 8 May 1998 indicate a 6m bay to the rear of the existing hangar, a 2.2 x 2.4m addition at the front of the hangar with a sliding glass door 1800 x 2100mm.

The council’s action
14 On 22 May 2002, the council resolved to write to all owners of improved sites at Holbrook Airfield in response to concerns raised regarding development standards at or near the airfield. Correspondence was forwarded to the owner of the subject property, Ms Julie Fischer at that time.
15 On 18 November 2002, the Council's Manager of Environmental Services met with Mr Charles Rigg, agent for the owner of the subject property. The Council’s Manager Environmental Services undertook a subsequent inspection on 20 November 2002.
16 On 18 December 2002, the council wrote to the owner advising that, in the council's opinion, it appeared that significant development had taken place without the prior consent of the council. The council sought further information from the owner. Further information was supplied by the owner and received by the council on 17 February 2003.
17 On 9 September 2003 the council received a report by Building and Environmental Services Today, which assessed the hangar, and residential building against the provisions of the Building Code of Australia 1996. That report had stated that parts of the building had been unlawfully erected, and did not comply with the relevant building standards.
18 On 5 November 2003, the council issued notices of intention to issue an order. When those notices were received, the owner, Ms J Fischer, by letter dated 11 November 2003, made representations that the council had been invited to inspect the premises on a number of occasions, and the council expressed no interested in internal works. The council disputed such allegations.
19 On 18 December 2003, the council again wrote to Ms Fischer advising her that the council considered that some of the work had been undertaken without approval and offered to discuss the matter. A meeting took place between the parties on 16 January 2004 and a copy of Mr Murphy’s review of written material giving options as to actions to be taken by the applicant, was supplied to the council. On 21 January 2004, further correspondence was received by the council from Ms Fischer advising that the owner's civil engineer would not be able to inspect the site until mid-late March 2004. The council issued the orders under s 121B of the Environmental Planning and Assessment Act 1979 on 10 March 2004.

The orders issued by the council
20 In respect of Appeal No 10442 of 2004, on 10 March 2004, the council ordered Ms Julie Kaye Fischer in accordance with s 121B of the Environmental Planning and Assessment Act 1979 Item 2 of the table to demolish those parts of the building which have been erected without development consent, namely: The residential buildings being used, or capable for use, as sole occupancy units situated on the ground and first floors; and all structures within three (3) metres of the side boundary measured perpendicular to the full length of both side boundaries (but does not include any bore housing or those parts of the building(s) the subject of building approvals No 36/90, No 54/90, No 36/92 and 38/97-8 which are within three (3) metres of the boundary).
21 In respect of Appeal No 10443 of 2004, also on 10 March 2004 the council issued an order under s 121B item 13 of the table to do such things as to bring into compliance with the relevant standards those parts of the building which have been unlawfully erected, namely: all stairways, landings, handrails, balustrades and decks not fully compliant with the Building Code of Australia.
22 The order was made to Ms Julie Kaye Fischer, in relation to premises at Lot 17, DP8046653, Holbrook Airfield, Holbrook.
23 The reason for the order was, inter alia, that the building is allegedly prejudicial to the health and safety of occupants and visitors to the building, and also it is in the public interest to comply with the planning laws.
24 The order was to be complied with within 30 days of the date when this order or a copy of this order was served on the applicant. The order was received 15 March 2004 and was to be complied with by 15 April 2004. To be in time the appeal was to be filed by 12 April 2004.

The hearing
25 Appeal No 10442 of 2004 was filed on 8 April 2004 and is in time. However, Appeal No 10443 of 2004 was filed on 13 April 2004 and as the time to appeal is set in the Act as 28 days the appeal is out of time. However, the parties took no issue in respect of this.
26 Discussions were held on site and I read material on behalf of the respondent council from Mr B McInnes, building surveyor, Manager of Environmental Services of Greater Hume Shire Council.
27 On behalf of the applicant evidence Mr W Murphy, consulting engineer and building surveyor, supplied information.

The issues
28 The issue in respect of Appeal No 10442 of 2004 is whether the applicant should be required to demolish those unauthorised works specified in the order.
29 The issue in respect of Appeal No 10443 of 2004 is whether appropriate time has been given to permit the applicant to comply.

The findings
30 The parties discussed the matters and reached agreement. The agreed orders under s121B of the Environmental Planning and Assessment Act 1979 are attached in the first section of Annexure A. Those orders are such as may be consented to by the Court.
31 The Court also notes the undertakings of the Applicant to the Court and the Council in the last part of Annexure A.

Orders by consent
32 The orders by consent are:
1. The appeals are under s 121ZK of the Environmental Planning and Assessment Act 1979, are upheld.
2. The Orders under Section 121B, Orders No 2 and 13 of the Environmental Planning and Assessment Act 1979 issued by Greater Hume Shire Council (Formerly Holbrook Shire Council) in respect of alleged unauthorised works to alter and add to an aircraft hangar at Lot 17, DP804653, Holbrook Airfield, Airpark Road off Wagga Wagga Road, Holbrook, NSW, 2644, are varied in accordance with the orders in Annexure A.
3. The documents are retained.

S J Watts
Commissioner of the Court
sw

In the Land and
Environment Court
of New South Wales

Appeals No: 10442 of 2004 and 10443 of 2004

Orders under s121B of the Environmental Planning and Assessment Act 1979

Annexure A

Julie Kaye Fischer

v

Greater Hume Shire Council (Formerly Holbrook Shire Council)

1. The removal of all bathrooms/ sanitary facilities on the upper floor of the residential portion of the building.

2. The removal of all kitchen facilities including sinks and associated plumbing, all stoves and hotplates other than the kitchen in the northwestern end of the lower floor of the dwelling.

3. All staircases, including balustrades, landings, and handrails to be made Building Code of Australia compliant or removed.

4. The Applicant is to provide an identification survey from a registered surveyor and remedy any boundary encroachments.

5. The Applicant is to provide an Engineer’s certificate, certifying that the structure of the carport, pergola and deck on the east and west boundaries can support all expected live and dead loadings.

6. Time for compliance for the above, 60 days from date of order.

S J Watts

Undertaking by the Applicant to the Court:
1. Not to use or allow the premises for any purposes other than as a dwelling house as defined in IDO1, which shall not be let, hired or sublet to any third parties for accommodation, except that the Applicant may have a caretaker on-site, and use the building as an aircraft hangar.
2. Upper mezzanine area not to be used for habitable purposes and not to be used for storage of flammable or other hazardous materials and not to exceed a total floor loading of 2.5 Kilopascals.
3. No more than two (2) recreational aircraft, with a total aggregate tank capacity of 150 litres, are to be housed in the hangar at any one time and shall be owned by the owner’s family.

The above undertakings, made by the Applicant to the Court, apply in each above case unless the Council’s consent is given or unless such use is authorised under a planning instrument.

Undertaking by the Applicant to the Council:

The Applicant agrees to pay to the council $1,800.00 for costs.

END OF ANNEXURE