Leung v City of Parramatta Council

[2018] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leung v City of Parramatta Council [2018] NSWLEC 1506
Hearing dates:	13 September 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Exhibits 1, 2 and C are returned.
Catchwords:	APPEAL – council order for demolition of carport – whether order validly issued – powers of the Court on an appeal against an order – whether the Court should allow a modified carport to remain temporarily
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251
Texts Cited:	Hornsby Development Control Plan 2013
Category:	Principal judgment
Parties:	Kam Hung Leung (First Applicant) Louise Siu Lai Sin (Second Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: M Arch, Solicitor (Applicants) J Walker (Respondent)   Solicitors: Concordia Pacific (Applicants) City of Parramatta Council (Respondent)
File Number(s):	18/96828

Judgment

1. COMMISSIONER: At some point prior to 19 December 2016, Mrs Louise Siu Lai Sin and Mr Kam Hung Leung erected a carport within the front setback of their two storey property at 11 Holden Avenue, Epping. On 1 March 2018, the City of Parramatta Council (“the Council”) issued an order pursuant to the former s 121B of the Environmental Planning and Assessment Act 1979 (“EPA Act”), requiring the demolition of the carport. Mrs Sin and Mr Leung (“the applicants”) appeal against the order pursuant to the former s 121ZK, now s 8.18 of the EPA Act.

2. The applicants agree that development consent was required for the construction of the carport, and that consent was not obtained. They are willing to accede to the order to remove the carport, but seek to have the timetable for compliance extended to enable the carport to remain in place for a period while their elderly father continues to visit and/or reside at the property. They are also prepared to provide landscaping within the front setback of the property to screen the carport structure from view, and reduce the size of the carport by removing some of the metal support structures. The applicants also contend that the order is liable to be set aside on the basis that it was not validly issued.

3. For the reasons set out below, I have determined that the order was validly issued, and that it is not appropriate in the circumstances for the Court to exercise its discretion in favour of allowing the structure to stay for a period of time in a modified form. As such, the appeal is dismissed.

The power of the Court on appeal

4. The power that the Council relied upon to issue the order is the former s 121B of the EPA Act. Relevantly, the former s 121B provides:

“(1) An order may be given to a person by:

(aa) …

(a) a council, or

(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.”

5. The relevant part of the table that the Council relied upon is 2(a), which allows an order to demolish or remove a building to be issued to the owner of premises in circumstances where the:

“Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required”

6. As of 1 March 2018 (the date on which the order was issued), s 121B was replaced by Division 9.3 of the EPA Act and the table has been replaced by Part 1 of Schedule 5. The name of an order has also been changed to a “development control order”. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”.

7. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (‘the Court Act’) provides as follows:

“39 Powers of Court on appeals

...

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal...”

8. In addition, s 8.18(4) sets out the powers of the Court on an appeal against an order. Those powers are as follows:

“(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.”

9. As set out by Dixon C in Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251, this power does not extend to conducting a merit assessment of the structures. She states (at [22]):

“As is clear from the wording of the section the Court’s power under section 121ZK(4) of the EPA Act does not extend to a merit assessment of the structures. The Court has no power in this appeal to grant an approval for the structures to remain without development consent under the EPA Act.”

10. The parties agree that development consent was required for the carport, and has not been obtained. As such, there is power to issue the order for demolition but the use of the word “may” in the former s 121B(1) and its replacement in s 9.34(1) of the EPA Act means that the consent authority, and therefore the Court on appeal, retains a discretion as to whether to issue the order. That discretion is similarly reflected in the Court’s powers on appeal pursuant to s 8.18(4). However, the power of the Court to hear the appeal and consider exercising its discretionary function is predicated on there being a validly issued order. The questions that I must determine are therefore as follows:

• Whether the order was validly issued,

• Whether the discretionary power of the Court pursuant to s 8.18(4) extends to making orders to allow the carport to stay for a limited period of time with the landscaping and changes proposed by the applicants, and

• If so, whether it is appropriate, in the circumstances of the present appeal, to exercise the discretion to permit the carport to stay for a period of time subject to landscaping and certain changes being made to the structure.

The site and its locality

11. The hearing commenced by way of an inspection of the site and the carport structure. The subject site is located on the eastern side of Holden Avenue, and is legally known as Lot 13 in Deposited Plan 28656. It is a midblock allotment with frontage of 16.7m to Holden Avenue, and a depth of 49.4m. The site has an area of 835m and slopes toward the street.

12. There is a two storey dwelling located on the site, which includes an attached double garage. There are steps leading from an entrance path to the front entrance door, but a level path is provided from the driveway, along the northern boundary and alongside the dwelling, to a rear sliding door entrance with a small single step.

13. The site is situated in R2 Low Density Residential zone pursuant to Hornsby Local Environmental Plan 2013 (“HELP 2013”). The locality is characterised by low density residential development, typically single dwellings with generous front setbacks with landscaping within that front setback.

The carport structure

14. The carport is composed of cantilevered metal support structures and a portable roof that is made of fabric material. It is set back from the front boundary by 900m to 1m, and is located to the south of the driveway that services the garage. A photo of the structure is in Figure 1.

15. The applicants were not informed by the vendor of the structure that development consent would be required, and indicate through their Statement of Facts and Contentions that it was constructed for the purpose of facilitating access to the dwelling house by their elderly father (currently aged 99) and an elderly father-in-law (deceased in late September 2017). The elderly father is confined to a wheelchair, and the carport allows weatherproof entry to and exit from the car. The applicants rely on that weatherproof access to transport their elderly father from the vehicle to the interior of the dwelling by means of the side pathway along the northern side of the dwelling.

16. The garage of the dwelling house has internal stairs which impede access to the living areas of the house by means of a wheelchair, and the ceiling height of the garage is inadequate to allow for a vehicle to be parked in the garage with a wheelchair on its rooftop.

Other carports in the locality

17. The site inspection also entailed viewing carports and similar structures at 172 Midson Road and 134 Ray Road, Epping. The Council indicated that the structures at 172 Midson Road, which are of similar materials to the carport the subject of these proceedings, are subject to possible enforcement action. At 134 Ray Road, development consent was granted for a carport. The carport is constructed of similar masonry materials to that of the dwelling located at the same property, is set back around 5.8m and is fully screened by a tall hedge in the front setback.

18. Similar carport structures of the same materials to the carport the subject of these proceedings were also constructed, at some point, at 65 Ray Road and 77 Ray Road, Epping. These were not inspected in the site inspection as they are outside of the visual catchment of 11 Holden Avenue, and are also the subject of enforcement action by the Council.

History concerning the carport

19. The order the subject of the appeal is the third order issued by the Council requiring the demolition of the carport. The first was issued on 9 January 2017, following a complaint received on 19 December 2016. The second was issued on 17 May 2017. It appears that since the issue of the first order, the applicants and the Council have endeavoured to reach a resolution concerning the structure.

20. A Structural Certificate was issued in relation to the carport on 8 February 2017 by Sky Group. The certificate certifies that a structural engineer has reviewed drawings of the carport, inspected the carport and determined that it is structurally adequate.

21. Following the issue of each of the orders, the applicants corresponded with the Council concerning the carport and ways in which the carport could be regularised. On 21 March 2017, a building certificate application was lodged with the Council. That application was refused on 12 May 2017.

22. Again, following the issue of the second order in May 2017, further correspondence between the applicants and the Council ensued and a further building certificate application was lodged on 15 September 2017. That application was refused on 24 October 2017.

23. The reasons for refusal of the building certificate applications were identical in each of the notices of determination, and were as follows:

“1. A referral to Councils Planning Department advised the following:

- Hornsby DCP 2013: Part 3.1.7 Vehicle Access and Parking states car parking for dwelling houses should be provided behind the building line;

- The carport is not located behind the building line; and

- The Hornsby DCP states that at least 2 car parking space [sic] are required under the DCP for residential dwellings with 3 or more bedrooms. These car parking spaces are already contained within the existing garage.”

24. On 9 November 2017, the Council issued the applicants with a Notice of Intention to Give an Order requiring the applicants to demolish the carport. Despite further correspondence between the Council and the applicants, the order the subject of these proceedings was subsequently issued on 1 March 2018.

The Planning Controls with respect to carports

25. The Hornsby Development Control Plan 2013 (“HDCP 2013”) applies to the site and provides the following with respect to setbacks of buildings:

“3.1.2 Setbacks

Desired Outcome

a. Setbacks that are compatible with adjacent development and complement the streetscape.

b. Setbacks that allow for canopy trees to be retained and planted along the front and rear property boundaries.

Prescriptive Measures

a. The minimum setback of all buildings and structures to the boundaries of the site should comply with Table 3.1.2(a):

...”

26. Table 3.1.2(a) requires a 6m front setback for the site the subject of the order and these proceedings.

27. Paragraphs (h) and (i) of Part 3.1.2 set out some permissible encroachments into the setbacks. This includes a driveway between the on-site car parking area and a public road, and:

“h. On local roads, where the streetscape will not be adversely affected, a single storey encroachment of 1.5 metres may be permitted for a distance equal to 1/3 of the width of the dwelling measured at the building line. Any encroachment is not to be in the form of a garage.”

28. Part 3.1.7 of the HDCP 2013 establishes that car parking for dwelling houses “should be provided behind the front building”, as follows:

“3.1.7 Vehicle Access And Parking

Desired Outcome

a. Development that provides sufficient and convenient parking for residents with vehicular access that is simple, safe and direct.

Prescriptive Measures

a. Car parking for dwelling houses should be provided behind the front building line.

…”

29. Whilst there is no definition of “front building line” in the HDCP 2013, the term “building line” is defined in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as follows:

“building line means the line of the existing or proposed external wall of a building (other than any ancillary development, attached development or detached development) closest to the property boundary adjacent to:

(a) the primary road of the lot, or

(b) in the case of a battle-axe lot, the rear boundary of the dwelling house on the lot in front of the battle-axe lot, or

(c) any other stated boundary of the lot.”

The evidence

30. It is agreed by the parties, based on the Structural Certificate and the Council’s on-site inspection of the carport, that the current structure is structurally sound.

31. Mr Anthony Betros and Mr Jonathan Cleary, town planners, gave expert opinion evidence at the hearing and by way of a joint report. They agree that no other structure within Holden Avenue is constructed with a 1 metre front setback. They also agree that the carport does not provide all-weather access to either the front or rear entrances to the dwelling, and that it is inconsistent with the existing front setbacks along Holden Avenue.

32. Mr Betros’ evidence is that a modified structure, reduced by half by removing the section closest to the front boundary, would not offend the streetscape and additional landscaping in front and to the side would adequately mitigate its visual impact in the streetscape for the temporary period of its retention. Mr Betros points out that this would give a setback of 4m, which is closer to compliance than the current 1m provided. The landscaping proposed would include pots with a depth of 600mm with plantings to achieve a height of 2-3m. He says that whilst the screening provided would not be as large and as effective as that at 134 Ray Road, it would nonetheless serve to mitigate the visual impact of the carport.

33. Mr Betros is of the view that the requirement to remove half of the structure, and for landscaping, could easily form part of the orders in a similar manner to a condition of development consent and could easily be demonstrated on a plan.

34. Mr Betros’ evidence as to the screening effect of landscaping is supported by photographs of the structure displayed in his evidence and taken from the road reserve to the south of the property, which demonstrates that existing landscaping along the southern boundary of the site has effectively screened most of the structure when viewed from the properties to the south.

35. Mr Betros relies also on the Statement of Facts and Contentions, which he prepared, in which it is considered that the proposal to reduce the size of the structure and screen it with appropriate landscaping would satisfy the desired outcome of the HDCP 2013 as it provides for sufficient and convenient access that is simple, safe and direct to provide for the particular needs of the occupant during the period over which it is retained for use by the elderly father of Mrs Sin. He also points out that there is an existing tree on the Council-owned nature strip at the front of the property that also screens the carport structure from view. Consistent with his evidence, Mr Betros supports the measures outlined in the Statement of Facts and Contentions, which can be summarised as follows:

• Landscaping within the front setback of the property in order to screen the shade structure/carport from view, including both potted plants and hedge planting with Murrayas or Lillipillis, and

• Reducing the size of the carport by removing some of the metal support structures.

36. Mr Betros says that these measures will reduce the visual impact of the carport, and in the context where the structure is towards the end of a cul-de-sac, it will be acceptable for the temporary period over which it is sought to be retained.

37. Mr Cleary’s evidence relies on the fact that the carport, being car parking for the dwelling house, is located forward of the front building line, contrary to the prescriptive measures of Part 3.1.7 of the HDCP 2013 and that it is set back 1m from the front boundary contrary to the prescriptive measures of Part 3.1.2 of the HDCP 2013. He opines that the objectives of Part 3.1.2 are not met, as the carport is not compatible with adjacent development and does not complement the streetscape, nor does it allow for the planting of canopy trees within the front setback.

38. Mr Cleary’s evidence is that the design of carport is not compatible with the design of the dwelling or with the desire future character of the local area. His opinion is that the design of the structure does not complement or enhance the neighbourhood and streetscape character, does not use any of the same materials as that used in the dwelling, and therefore results in an unacceptable visual impact when viewed from the public domain and adjoining properties.

39. Mr Cleary also opines that landscaping should not be used as a means to disguise the inherent bulk and scale of the structure within the streetscape, and that landscaping of the type at 134 Ray Road would be out of character in the streetscape of Holden Avenue. He says that additional landscaping within the front setback would not detract from the fact that the structure is the forward most structure within the visual catchment of the site. He considers that its location in a cul-de-sac doesn’t change his opinion that the structure, and any screening, would still be clearly visible in the streetscape, particularly when one drives towards the end of the cul-de-sac.

36. Mr Cleary is also concerned that allowing the structure to stay for a temporary period would set a precedent for development that is carried out without consent and contrary to the HDCP 2013 when there are alternative options available for weather shielded wheelchair access to the dwelling.

37. Mr Cleary also opines that the partial demolition of the carport will still result in a building that is significantly forward of the front building line, with a non-compliant set back. He does not agree that landscaping would resolve the adverse visual impact of the carport.

The validity of the order

42. The applicants submit that the order is not validly issued as it is predicated on a misstatement of the law. Specifically, they submit that cl 3.1.7 of the HDCP 2013, which provides that “Car parking for dwelling houses should be provided behind the front building line”, does not give a prohibition against them being located in front of the front building line. Given that the word “should” is used lieu of the use of mandatory language, the applicants submit there is no prohibition. As such, they say that reliance of cl 3.1.7 in the “circumstances” section of the order means that the order is incorrectly predicated on cl 3.1.7 being a prohibition, and therefore invalidates the whole order. The applicants therefore submit that to the extent that the order is predicated on the basis that the HDCP 2013 poses a prohibition it is liable to be set aside.

43. The Council submits instead that the order was validly issued, and that the order does not rely on the HDCP 2013 creating a prohibition. The Council points out that even if the language of prohibition was used, the HDCP 2013 is not an instrument that can mandate an outcome and in fact, the order was not predicated on an interpretation of the HDCP 2013 operating as a prohibition. Rather, the Council says that whether an order is issued on the merits and in the Council’s discretion is a question of degree in the particular circumstances.

The order was validly issued

44. I do not accept the submission made on behalf of the applicants that the order was predicated on the basis that a carport located in a front setback was prohibited. Rather, it is clear from paragraphs 1 to 3 of the “reasons for the proposed order” that the legal basis for the issue of the order was that development consent was required for the carport and was not obtained. Further, it is clear from paragraphs 4 and 5 of those reasons that the reasons why the Council exercised its discretion to issue the order was that the amenity of the occupants and adjoining properties may be affected, and the health and safety of the occupants needs to be assessed. As such, not only do reasons 1-3 demonstrate the legal basis for issuing the order, but reasons 4-5 express why the Council’s discretion was exercised to so issue the order.

45. In fact, there is no reference at all to the HDCP 2013 in the “Reasons for the Proposed Order”. Rather, the reference to the HDCP 2013 is in the “circumstances” section of the order and refers to the refusal of the building certificate applications. It is legitimate to refer to their refusal, and the reasons for their refusal, given that the issue of a building certificate would prevent the order being issued by the Council (see the former s 149E(1)(a) and now s 6.25(3)(a) of the EPA Act). The reference to cl 3.1.7 of the HDCP 2013 as the reason for the refusal of the building certificate does not invalidate the order.

46. For these reasons, I am satisfied that the order was lawfully and validly issued pursuant to the discretionary power of the Council under the former s 121B of the EPA Act.

The applicants submit that the carport should remain for a limited period

47. The applicants submit that in the circumstances, the Court should extend the time for compliance with the order subject to appropriate orders of the Court to reduce the size of the structure and provide landscaping. They submit that if I consider that it is open to retain the structure subject to such court orders, I ought to deliver a finding in that regard so that the final terms of the court orders can then be provided. The applicants submit that this is an ordinary course taken by commissioners of the Court. They say that the general terms of such final orders would include:

• Reduction in size of the structure by removal of the structure to the second supporting pillar so that the structure would be setback 4m from the street,

• Provision of landscaping by placement of potted plants in front of the structure and fronting the street, and

• Screen planting for deep soil landscaping.

48. The applicants submit that these court orders would apply during the temporary period that the structure is permitted to be retained, which they say is a minimum period of 12 months.

49. The applicants submit that such orders would be within the Court’s power, and points to s 8.18(4) as conferring a wide power on the Court to enable it to make such orders.

50. The applicants say that there are sound reasons to extend the time for compliance, which is to accommodate their elderly father’s access to the dwelling. They say that the steps at the front door and from the garage impede access to the dwelling, and that the easiest mode of access is the path of access from the carport structure around the side of the dwelling so as to enter the dwelling through the sliding doors at the rear. They submit that the carport enables the father, who is 99 years old, to have weather protection as he enters and exits the vehicle. The applicants submit that this is a “strong and compelling” circumstance in which it would be appropriate to exercise the Court’s discretion to extend the time for the structure to remain.

51. As to the length of time required for the retention of the structure, the applicants assert that they would be willing to notify the Council on the passing of the father and the structure could be removed within a specified period of time after his passing. The applicants submit that the Court could impose a requirement for such notification to be given. The applicants concede that it is not contemplated that the carport will remain in place indefinitely, but that in the circumstances the Court should exercise its discretion to allow it remain in place for a period of time with temporary measures taken to reduce its impact. The applicants submit that the evidence of Mr Betros supports these temporary measures being taken, and that what was seen at 134 Ray Road demonstrates the effectiveness of screening the carport with landscaping.

The Council submits that the carport should be demolished

52. The Council submits that if the applicants’ position is that the Court should allow a temporary modified structure, it ought to have put forward plans of the modified structure. The Council points out that whilst it appears insignificant to consider a modified structure, it will change the size of the structure with very significant landscaping that will itself have an impact, and this will change its appearance. As such, the Council says that if that is what the applicants wanted the Court to consider, it should have been put forward in the form of plans, including an engineering plan and a landscape plan. The Council says that without those plans, what is before the Court is the building that is currently in place.

53. The Council also submits that a question arises as to whether s 8.18(4) is sufficiently broad to allow the Court to make such orders as those proposed by the applicants, particularly with respect to orders requiring landscaping.

54. The Council submits that even if the Court were minded to consider the concept of a modified structure, the Court could not be satisfied that the modified structure would be acceptable given that it would nonetheless be prominent in the streetscape. Whilst 134 Ray Road is an example of something for which consent has been granted, the Council says that it can be distinguished due to its 5.9m setback from the front boundary. The Council submits that even with a setback of 4m, the structure will remain prominent in the streetscape.

55. With respect to the compassionate grounds put forward by the applicants, the Council submits that the structure does not perform the purpose of providing weather protected access to the dwelling. The Council says that the shelter only protects from the weather when getting in and out of the car, and that to access the dwelling a large distance is traversed without weather protection. As such, the Council submits that the Court ought not to accept that the carport is the only way of providing access to the dwelling to an aged relative. The Council submits that an example of providing weather proof access is at Midson Road, where a large awning is attached to the building. Such an awning, the Council submits, has a lower visual impact and could actually serve the purpose of providing weather protected access to the dwelling.

56. As to the time period proffered by the applicants, the Council submits that it is unacceptable for an open period to be given for its retention, even in a modified form. The Council points out that the structure has been in place for almost 2 years, and therefore it is not appropriate to provide any additional time.

57. The Council says that if the Court was minded to consider the modified structure for a limited period, engineering specifications, plans and a landscape plan would need to be provided. Further, the structure would need to drain the stormwater into the existing stormwater system, and the Court should fix the period over which the modified structure is to remain rather than leaving it open for an unspecified period of the lifetime of the father.

58. In considering the present structure, the Council submits that the Court should be satisfied that it is appropriate to exercise discretion to confirm the order to demolish the carport structure. Firstly, the Council points out that there is no appeal with respect to the refusal of the building information certificates. Secondly, the Council submits that the carport significantly departs from the controls of the HDCP 2013 by straddling a significant portion of area between the front boundary and the dwelling, being in a location that is not behind the front building line, and significantly breaching the front setback control. As a result of those significant departures, together with the fact that the carport is of a different style to that of the masonry style of the dwelling, the Council submits that the carport is not harmonious and is visually dominating in the streetscape. Similarly, the Council says that if a development application was lodged with the Council, it would not be approved as it would be considered a very prominent structure that is not in keeping with the setback control and the controls requiring the carport to be located behind the front building line.

59. The Council submits that the Court, in carrying out the functions of the Council, would similarly legitimately be concerned about the visual impact of the carport and its inconsistency with the character of the streetscape, and that on a merit assessment it would not have been the subject of development consent.

60. For these reasons, the Council submits that there is a public interest in upholding the orderly enforcement of planning laws by ordering the demolition of a structure for which consent has not been obtained and which is inconsistent with the character of the streetscape. The Council points out that the breach of the planning law is a significant one given that the structure has now been in place for almost 2 years, and that the applicants shouldn’t be allowed to benefit from the unauthorised structure. The Council submits that for those reasons it would also set an undesirable precedent for other sites if the structure were permitted to stay, even for a short period with modification.

There is sufficient power to make orders to modify the structure

61. I accept that the terms of s 8.18(4) of the EPA Act are sufficiently broad to give the Court the discretion to make orders to allow the structure to remain for a specified period of time, with modifications to be made and other work to be done (including landscaping around the structure). That breadth arises from the terms of subss (4)(e) and (f), which allow the Court to “make such order with respect to compliance with the development control order as the Court thinks fit”, or “make such other order with respect to the development control order as the Court thinks fit.” In referring to orders “with respect to compliance with the development control order”, I accept that this extends to making orders as to how compliance is to be achieved, the time to so achieve compliance, and what interim measures are to be employed to ameliorate any impacts prior to final compliance.

The order should remain in place

62. Whilst I accept that there is sufficient power to make orders in favour of allowing the structure to stay for a specified period of time in a modified form, for the following reasons I do not accept it is appropriate in the circumstances for such orders to be made.

63. Firstly, there is insufficient information to satisfy me that the reduction in size by half and the provision of landscaping would be adequate to address the visual impact of the carport, even for a temporary period. The applicants bear the persuasive burden to establish that such an approach is appropriate, and, without the requisite information presented in the form of a plan of the modified carport and a plan for the landscaping, I do not accept that they have discharged that burden. Contrary to the submission made on behalf of the applicants, making a finding on a concept that has not even been drawn on a plan is not an “ordinary” course taken in appeals before the Court. Without such plans, there is no basis upon which I can undertake a proper assessment of whether the modified structure, with landscaping, reduces its visual impact in the streetscape for the temporary period over which it is intended to remain. Without those plans I am not in a position to properly consider Mr Betros’ opinion with respect to that visual impact. As such, I decline to make a finding that it is appropriate to allow the carport to remain for a temporary period with those modifications and landscaping.

64. Secondly, I am not persuaded that the compassionate circumstances of the applicants and their elderly father warrant any further extension of time for the retention of the carport. The carport has already been in place for a period of at least 21 months since the Council became aware of its construction, which I consider to be a lengthy period. Further, it does not provide the weatherproof access to the dwelling for which purpose the applicants seek to retain it.

65. For those two reasons, I am not persuaded that I should make a finding that permits the structure to remain temporarily in a modified form. If the applicants seek a smaller carport or other structure that provides weather protected access to the dwelling, then the appropriate course is to seek development consent for a new structure that can align with both their circumstances and the objectives of the controls with respect to car parking behind the front building line, and front setbacks. It may be that in that context the Council would consider whether the visual amenity of the streetscape could be retained through screening of the carport through landscaping. As set out by Dixon C in Imaroo Flyer Pty Ltd v Berrigan Shire Council, an appeal against an order is not the context for that merit assessment.

66. I also, for the following reasons, consider that the order for demolition should remain.

67. Firstly, the applicants agree that they did not obtain development consent in circumstances where development consent is required. This means that the statutory power in the former s 121B (item 2(a) in the table), and now s 9.34(1) (Schedule 5, Item 3 of Part 1), to issue the order is enlivened.

68. Secondly, I accept that it is appropriate for the discretion of the Court, exercising the functions of the Council, to be exercised in favour of the issue of an order for demolition. I accept the evidence of Mr Cleary that the carport has a significant visual impact in the streetscape by its inconsistency with the prevailing streetscape of Holden Avenue. That inconsistency arises primarily due to the front setback of the carport of only 1m, as well as, to a minor extent, an inconsistency between the material used for the carport and the masonry construction of the dwelling.

69. Accordingly, I am satisfied that it is appropriate for the order for demolition to be issued pursuant to the former s 121B, now s 9.34, of the EPA Act. As such, the order issued by the Council should remain in place.

70. The Court orders that:

1. The appeal is dismissed.

2. Exhibits 1, 2 and C are returned.

___________________

Commissioner Gray

**********

Decision last updated: 28 September 2018