Kid Property Pty Ltd v Wollondilly Shire Council

[2021] NSWLEC 1301

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kid Property Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1301

Hearing dates:

Conciliation conference on 26 April 2021

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The court orders:

(1) Leave is granted to the Applicant to rely upon the following amended documentation:

(i) Overall site plan, L-01 revision C, 9 March 2021, Site Design and Studio

(ii) Landscape plan, L-02 revision C, 9 March 2021, Site Design and Studio

(iii) Planting schedule and details, L-03 revision C, 9 March 2021, Site Design and Studio

(iv) Stormwater concept plan, 101 revision B, 18 March 2021, Australian Consulting Engineers

(v) Miscellaneous details sheet, 102 revision B, 18 March 2021, Australian Consulting Engineers

(vi) Letter from planner confirming scope of Development Application prepared by Planzone dated 5 March 2021

(vii) Amended Koala Plan of Management prepared by Cumberland Ecology dated 7 April 2021

(2) The appeal is upheld.

(3) Development Consent is granted to DA-2019/545/1 for:

(i) continued use of the existing shed as an ancillary structure to the residential use of the land;

(ii) separation of the shed into three components comprising 2x 15.175m sections and 1x 20.1m section;

(iii) addition of roller doors to 2 of the sheds;

(iv) drainage and landscape works; and

(v) remediation works.

at 45 Whitticase Lane, Wilton subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – vehicle storage shed – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Coal Mine Subsidence Compensation Act 2017, s 22

Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7, 9.34

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 44 – Koala Habitat Protection, cl 13

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Wollondilly Local Environmental Plan 2011, cll 5.10, 7.1, 7.2, 7.3, 7.5

Texts Cited:

NSW Rural Fire Service, Planning for Bush Fire Protection Regulations, November 2019

Wollondilly Development Control Plan 2016

Category:

Principal judgment

Parties:

Kid Property Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
K Mortimer (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/177454

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the Council’s actual refusal of a Development Application (DA/2019/544/1), lodged on 20 September 2019, for the continued use of an existing shed as an ancillary structure to the residential use of the land for the purpose of parking and storage of motor vehicles, and for minor drainage and landscape works at 45 Whitticase Lane, Wilton, NSW (Lot 390 DP 800151).

2. The Development Application was the result of Development Control Orders (DCOs) issued to the Applicant pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DCOs required the landowner, Kid Property Pty Ltd to demolish and remove the shed and the vehicles parked in it and restore the land to the condition it was prior to the construction of the shed, unless development consent was granted and a building information certificate issued within a specified period of time.

3. In the course of the initial conciliation proceedings, this application was amended once, and then further amended (Further Amended Application). Leave was granted by the Court on 30 November 2020 to rely on the Further Amended Application, which sought consent for:

1. Continued use of the existing shed as an ancillary structure to the residential use of the land;

2. Separation of the shed into three components comprising two 15.175m sections and one 20.1m section;

3. Addition of roller doors to 2 of the sheds;

4. Drainage and landscape works; and

5. Remediation works.

4. A Class 1 appeal was lodged with the Court pursuant to s 8.7 of the EPA Act, and the matter was listed for hearing on the 4 and 5 March 2021 which I presided over. The hearing commenced with a site view at 9:30 am in which I had the opportunity to view the site in context.

5. At the commencement of the hearing, two contentions remained: the permissibility of the proposal within the RU2 zone, and the requirement for a Plan of Management under the State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44).

6. Upon returning to Court and commencing proceedings by Microsoft Teams, the parties informed me that they had reached an agreement regarding the permissibility of the proposal, which was a principle contention of the appeal. Under this agreement, the parties concurred that the shed was ancillary to the dwelling house. Under the Wollondilly Local Environmental Plan 2011 (WLEP), the site is zoned RU2 Rural Landscape and dwelling houses are permitted with consent in this zone.

7. The Wollondilly Development Control Plan 2016 (WDCP) defines ‘ancillary buildings’ in Part 1, section 1.3 as “a building (that is not a dwelling) on a residential or rural allotment that is used by the residents of the allotment as a part of their domestic occupation of the land and includes a detached garage but excludes an attached garage”.

8. The consideration of the shed as an ancillary building to the dwelling house is a matter of fact and degree, and requires consideration of the extent, nature and circumstances of the proposal. In order to understand the terms of the agreement about this jurisdictional point, I was informed of the following:

1. The further amended development application before the Court seeks to reduce the overall size of the existing shed from one large structure to three smaller structures.

2. The requested number of vehicles to be stored has been reduced from 85 to 30 vehicles, with all 30 vehicles to be stored within the sheds, and a total of 33 vehicles allowed on site at any one time (excluding guests).

3. The use of the sheds for storage of the owners’ car collection is part of the owner’s domestic occupation of the land and residential use of the site. This is further supported by condition 11 which places restrictions to this effect.

4. All the collectible vehicles are owned or registered in the name of the resident of the dwelling house.

5. The sheds do not serve their own purpose independent of the principal dwelling.

6. The sheds do not contain the required amenities that are characteristic of an independent or standalone use, and they rely on the amenities of the existing dwelling house on the land.

7. No major mechanical works or repairs occur on site, and the presence of the vehicles on site generates limited additional physical activity on site, in terms of truck movement, deliveries and other vehicle movement.

9. It was apparent at the site view that the use of the development did not involve any commercial aspect. This was further confirmed by a statement of the owner, Mr Emirian (Annexure 1 to Exhibit C), and the Applicant’s submission.

10. Based on the above points and the Applicant’s submissions I am satisfied that the sheds, in their amended form and scale, are ancillary to the dwelling house.

11. With the points above in mind and in view of the parties’ agreement about the facts I am satisfied with the permissibility of the use.

12. Accordingly, leave was granted to amend the scheme to limit the number of vehicles stored in the sheds to 30, as stated in the terms above.

13. The second unresolved contention- the pending approval of the Koala Plan of Management (KPOM) from the Department of Planning required under cl 13 of SEPP 44, and the further pending General Terms of Approval from the Mine Subsidence Authority required under s 22 of the Coal Mine Subsidence Compensation Act 2017 remained. Both approvals had been obtained on the earlier amended scheme but required further approval subsequent to the amendments that formed the scheme before the Court.

14. The hearing was subsequently adjourned in order to obtain the necessary approvals from the Department of Planning and Mine Subsidence Authority, and a further conciliation conference was arranged between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which was held on 26 April 2021.

15. At the conciliation conference, I was advised that the necessary approvals listed above have been obtained and that the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

16. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and detailed how each is satisfied. These prerequisites are as follows:

1. The property is owned by Kid Property Pty Ltd, and the applicant of the development application is Jim Emirian, who is noted to be the director of Kid Property Pty Ltd. Owners consent is therefore not required.

2. Approvals from both the Council and the Department of Planning for the Koala Plan of Management, required under SEPP 44, have been provided and the further amended plans, listed in the orders in this judgment, were provided to ensure the proposed development is consistent with the approved Koala Plan of Management.

3. General Terms of Approval, required under the Coal Mine Subsidence Compensation Act 2017, have been granted by Subsidence Advisory NSW in relation to the further amended application.

4. Pursuant to Part 7 of WLEP, the following is noted:

1. WLEP cl 7.1 Essential services: water, electricity and sewage management are already available on the site as it exists.

2. WLEP cl 7.2 Biodiversity protection does not apply, as the site is not identified as ‘sensitive land’ on the Natural Resources – Biodiversity Map.

3. WLEP cl 7.3 Water protection: the requirements of cl 7.3(3) have been considered, and on the basis of the updated stormwater concept plan and details, I am satisfied that the requirements of cl 7.3(4)(a) are met by this development.

4. WLEP cl 7.5 Earthworks: the objectives of cl 7.5(1) are met, as the development consent would allow earthworks of a minor nature without requiring separate development consent. I have further considered the requirements of cl  7.5(3) and am satisfied that the only proposed earthworks are indeed minor, pertaining to the drainage works denoted on the stormwater concept plan, and the removal of a contaminated spoil heap for the purposes of remediation.

5. The provisions of WLEP cl 5.10 Heritage conservation have been considered, and I am satisfied that the requirements of cl 5.10(4) have been met as the proposed works will have no impact on the heritage item that is within the property to the west of the sheds.

6. Pursuant to State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) cl 7, I am satisfied that the Remediation Action Plan by Environmental Consulting Services, dated 11 September 2020, demonstrates that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out and that the land will be remediated before the land is used for that purpose.

7. Pursuant to Part 7 of the Biodiversity Conservation Act 2016, based on the evidence provided by the Flora and Fauna Assessment dated 9 February 2021 prepared by Cumberland Ecology, I am satisfied that the development is not likely to significantly affect threatened species or ecological communities, or their habitats.

8. Pursuant to s 4.14 of the EPA Act, I am satisfied that although the site is mapped as bushfire prone land, the sheds are classified as class 10(a) structures under the National Construction Code and as such, under regulation 8.3.2 of the Planning for Bush Fire Protection 2019 regulations, no bushfire protection is required.

17. For the above reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

18. As the parties’ decision is one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

19. The Court orders:

1. Leave is granted to the Applicant to rely upon the following amended documentation:

Plan Name	Drawing number	Revision	Date	Prepared by
Landscape Plans
Overall site plan	L-01	C	9 March 2021	Site Design and Studio
Landscape plan	L-02	C	9 March 2021	Site Design and Studio
Planting schedule and details	L-01	C	9 March 2021	Site Design and Studio
Stormwater plans
Stormwater concept plan	101	B	18 March 2021	Australian Consulting Engineers
Miscellaneous details sheet	102	B	18 March 2021	Australian Consulting Engineers
Reports
Letter from planner confirming scope of Development Application prepared by Planzone dated 5 March 2021
Amended Koala Plan of Management prepared by Cumberland Ecology dated 7 April 2021

2. The appeal is upheld.

3. Development Consent is granted to DA-2019/545/1 for:

1. continued use of the existing shed as an ancillary structure to the residential use of the land;

2. separation of the shed into three components comprising 2x 15.175m sections and 1x 20.1m section;

3. addition of roller doors to 2 of the sheds;

4. drainage and landscape works; and

5. remediation works.

At 45 Whitticase Lane, Wilton subject to conditions contained in Annexure ‘A’.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (251277, pdf)

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Decision last updated: 31 May 2021