Nader v Holroyd City Council

[2004] NSWLEC 451

Land and Environment Court

of New South Wales

CITATION:	Nader v Holroyd City Council [2004] NSWLEC 451
PARTIES:	APPLICANTS George Saliva and Randa Nader RESPONDENT Holroyd City Council
FILE NUMBER(S):	10807 and; 10808 of 2004
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Structure in front setback area - visual impact - non-compliance with building line setback
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	13/08/2004
EX TEMPORE JUDGMENT DATE :	08/13/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister SOLICITORS Arraj Lawyers RESPONDENT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 August 2004

10807&10808 of 2004 George Saliva and Randa Nader v Holroyd City Council

JUDGMENT

1 This matter involves the following two appeals:

2 Appeal No. 10808 of 2004, which is against council’s refusal of a development application for the use of a circular masonry structure, forming a shrine. It is located in the front setback of the property at 105 Coleman Street, Merrylands.

3 Appeal No. 10807 of 2004, which is against council’s refusal to issue a Building Certificate for this structure.

4 In order to deal with these appeals, the parties agreed to the appointment of the Court appointed expert planner, Mr Lindsay Fletcher. He prepared a detailed assessment of the proposal. It appears that after some review of the proposal, which involved removal of the lighting on its roof and the provision of screening landscaping, he is now satisfied that the proposal is satisfactory for approval.

5 The two main issues are:

• The visual impact of the proposal.
• Non-compliance with the building setback controls.

6 Having undertaken a view in the immediate area, it is apparent that the colour of the materials blend in with the backdrop of the substantial house, significantly reducing the visual impact of the much smaller shrine structure. Considering then the limited viewing opportunities, this screening suggested by Mr Fletcher does seem to be reasonable in these circumstances providing particular care is taken to screen the entry opening, which is the main visual feature.

7 Under the circumstances that the structure can be adequately screened, which minimises the impacts of its non compliance with the building lines setback, I accept Mr Fletcher’s conclusions that having determined that the proposal is permissible with consent in the 2(a) Residential Zone, under the Holroyd LEP and that it generally complies with the objectives of the relevant parts of the Development Control Plan, then it is reasonable for conditional approval. I also note in this case that the application has been notified and there is no objection to this proposal, even though it is in a relatively prominent position.

8 With respect to the building certificate appeal, I note that the applicant has subsequently submitted certification from an accepted structural engineer, to the effect that the shrine is structurally adequate for its purposes. This then overcomes one of the main concerns in the refusal of the second appeal.

9 Accordingly the orders of the Court are with respect to the first development application appeal No. 10808 of 2004:

1. The appeal is allowed.
2. Development consent is granted to development application 204/213 for the use of the shrine at 105 Coleman Street, Merrylands, in accordance with conditions in Annexure “A”.

10 With respect to the building certificate appeal No. 10807 of 2004:

1. The appeal is allowed.
2. The council is directed to issue the building certificate for this structure.
____________________
R Hussey
Commissioner of the Court
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