Knight v Hornsby Shire Council
[2004] NSWLEC 384
•06/21/2004
Land and Environment Court
of New South Wales
CITATION: Knight v Hornsby Shire Council [2004] NSWLEC 384 PARTIES: APPLICANT
Peter KnightRESPONDENT
Hornsby Shire CouncilFILE NUMBER(S): 10204 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Erection of a carport - subdivision LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: DATES OF HEARING: 21/06/2004 EX TEMPORE
JUDGMENT DATE :06/21/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr R Creighton, town planner
Mr T Pickup, solicitor
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
21 June 2004
JUDGMENT10204 of 2004 Peter Knight v Hornsby Shire Council
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against Hornsby Shire Council’s refusal of a development application for a carport to be erected in the front of the premises known as 34 Hannah Street, Beecroft. The council has agreed to entering into consent orders.
2 By way of background the subject site was created, or is to be created, by way of a subdivision that was approved by the council. The subdivision approval provided for a right of access to a rear allotment behind the subject dwelling and the car parking provision for the street dwelling was to be by way of a double hard stand area in front of the dwelling on the western side of that dwelling.
3 The development application is for an open carport with pillars and a pitched roof constructed on the carport. The council initially assessed the development application and was of the view that the proposal did not comply with its guidelines and controls and refused the development application.
4 The development is set back from the front street boundary and has an extensive area of soft landscaping in front of the carport between the street. The driveway that has been constructed on the eastern boundary is one that serves the rear lot, together with the carport.
5 Evidence was given to the Court by Ms Sheridan Burke, a heritage consultant, who advised that the proposal is one in conservation terms that is not consistent with the heritage values of the area or the conservation area, but at the same time there are ameliorating factors in terms of the setback of the carport from the street. The fact that a hard stand area had been approved as part of the subdivision and the facts and circumstances of this case are such that the proposal, whilst not ideal, nonetheless it would not warrant refusal of the development application.
6 The Court has had the benefit of hearing from Ms Burke and the Court sees no reason why the Court should not grant the consent orders. However there is concern about a number of aspects to ensure that the proposed development or the final outcome of the development with a carport in the front boundary of the subject dwelling to the street is one that does not adversely impact on the conservation area. And in that regard the landscaping is important in terms of ameliorating any adverse effects that the carport may have on the streetscape. To that effect, a ‘deferred commencement’ under s 80(3) of the Act condition has been agreed to between the parties.
7 The ‘deferred commencement’ condition requires that details of an amended landscape plan be submitted to the council for the council’s approval, and the amended landscape plan is to show the plantings on the western side of the driveway and on the western boundary of the subject property. It is also to provide details of fencing forward of the dwelling facing the street. Upon the satisfaction to council that the amended landscape plan is appropriate then the application or the conditions of consent for the carport erection will operate. The deferred commencement is to provide council with the opportunity to comment on any landscape works.
8 The proposal also requires in terms of the conditions for the carport that the landscaping works be completed prior to the issuing of the occupation certificate.
9 As I stated I am satisfied, based on the evidence presented by the council, that the proposal is one that given appropriate landscaping will sit within the streetscape and will not unduly adversely impact on the heritage significance of the area. And in that regard, in the circumstances of this case, the Court can see no reason why the consent orders should not be issued.
10 By way of comment, given that precedent is often raised in cases, this is not to be seen or perceived as a precedent for the erection of carports within this heritage area, and it is clear on the basis of Miss Burke’s evidence that these circumstances are ones that must be considered which would differentiate or distinguish this particular development application. I will say by way of comment that it is not appropriate for development to be incremental in terms of s 96 applications, or further applications in terms of what the intent of a previous application is. It is considered that this development application will provide the opportunity to ensure that there is appropriate landscaping that was anticipated in terms of the subdivision application at the time.
11 On the basis of the Court’s assessment and with the benefit of council’s expert, I am satisfied that the consent orders may be issued.
12 Therefore the orders of the Court are:
1. The appeal in respect of the property known as 34 Hannah Street, Beecroft, is upheld in part.
2. The development application No. 2491/03 submitted to Hornsby Shire Council for the erection of a double carport is determined by the granting of consent subject to a “deferred commencement” and the conditions contained in Annexure ‘A’.
3. The exhibits except the plans and the conditions are returned.
Nmc/rjs/ljr
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