Orfali v Wingecarribee Shire Council

[2008] NSWLEC 1108

Land and Environment Court

of New South Wales

CITATION:	Orfali & Anor v Wingecarribee Shire Council [2008] NSWLEC 1108
PARTIES:	APPLICANTS I Orfali & R Dove RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	11160 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application :- Impact on rural setting Council prior approval of adjacent 80m long red steel-roofed dwelling Council rejection of connected garage in same materials
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	20 February 2008
EX TEMPORE JUDGMENT DATE:	20 February 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr B Bilinsky, solicitor B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

20 February 2008

11160 of 2007 Orfali & Dove v Wingecarribee Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: Wingecarribee Shire Council has granted a development consent for an 80 m long single storey dwelling on an intermediate ridge line in a rural valley some 5 or 6 km generally to the east of the Moss Vale. The dwelling is as shown in the photomontage appended to this decision (with the exception of the left-hand end rectangular element which is a garage). That garage element, in a slightly different form, had been proposed in the original application but was required to be deleted.

2 After obtaining the consent for the main building, the applicants lodged a separate proposal with the council for the garage element and for a swimming pool. The application was refused. The proposed swimming pool is not a contested matter and the appeal is upheld, by consent, for the swimming pool.

3 The council contends that the garage element is too bulky and prominent in the landscape when added, cumulatively, to the presentation of the remainder of the dwelling. The applicants resist those contentions of the council and now appeal against that refusal.

4 I am not, in these proceedings, expressing any opinion of a determinative nature on the merits of a large, 80 m long brick and red roofed structure in the landscape. It is fortunate for the applicants, in the circumstances, that I am not doing so. I am merely asked to assess, against the council’s controls, the acceptability or otherwise of the garage extension of that already approved dwelling.

5 The site is at the end of the narrow dirt laneway known as Bibbys Lane which extends some 1 km or more to the east from Mount Broughton Road. From the saddle to the west of the site, where one commences to enter the valley upon eastern intermediate lip of the valley upon the rim of which the house will be located, Bibbys Lane serves four dwellings (including the applicants’ proposed dwelling).

6 The only other places, on a public road or any other form of public place, from which the proposed development is able to be viewed are three locations to the south east on Greenhills Road, a dead-end road. Each one of those locations comprises a small viewing window through otherwise dense hedging along the front of a number of properties. The existence of the viewing windows in the hedging arises from vehicle entrances to (or immediately in the vicinity of a vehicle entrance to) those properties.

7 Any glimpse of the applicants’ building from those points would be generally to the north west; would be downward into the bowl of the valley in which the building is to be located; and would be a fleeting glimpse, at most, unless one stopped and consciously chose to view the site. From at least one of these points, part of the lower portion of the proposed garage would be obscured by an intermediate hill ridgeline. The only place from which the building would appear prominent on the skyline (against a sky backdrop) will be at a point on the access road, Bibbys Lane, beyond one of the four dwelling entrances in this valley and at a point where, at most, traffic to a total of three or perhaps four dwellings would regularly view it – one of those dwellings would be the applicants’ dwelling itself.

8 Mr Bilinsky, solicitor for the council, took me to a variety of council’s provisions – starting with the zone objectives for the Rural 1A zone in the Wingecarribee Local Environmental Plan1989 – this being the zone within which the site is located. Two of the objectives of the zone were put in contention. The first is cl 1(e) which reads:

“to ensure subdivision is designed to maximise the retention of natural vegetation and to minimise the potential significant alterations to the natural land form by way of construction of access driveways excavations, filling and the like.”

9 As part of the consent which has been granted for the approved dwelling, the pad upon which the garage would have been constructed (subject to an agreed variation to the without prejudice conditions which variation would enable the floor level of the garage to be lowered a further metre) has already been levelled. Because the excavation has already been untaken, with the exception of the minor lowering of the floor of the garage to which no objection is raised, there can be no non-compliance with objective 1(e) of the zone objectives.

10 The second objective to which I was taken is objective 1(i) which is:

“to recognise the value of the rural scenic landscape to the local tourist economy and to protect these areas from small holding rural subdivision.”

11 I am satisfied that this objective does not apply in this case. As I inquired during the course of the proceedings, there has been no traffic count undertaken on Bibbys Lane (for what I am prepared to assume is the obvious reason that it would be so low as to be almost de minimus in the context of these proceedings). There is certainly nothing observed during the course of the inspection that would cause me to think that the valley areas, either to the east or to the west of the proposed house site, make any contribution to the local tourist economy - let alone any contribution of economic significance.

12 Therefore I turn to the matters that are raised by the council arising out of Development Control Plan 53 – Siting, Design and Landscaping for Development in Non-Urban Zones.

13 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I am obliged to use a relevant development control plan as the focal or starting point for my consideration of any application to which it applies. However, having considered the relevant provisions of the development control plan, I am not obliged to adhere blindly to them (even if I were satisfied that they were contravened) if I were satisfied, in the general context of assessment pursuant to section 79C of the Environmental Planning and Assessment Act 1979 that the design was acceptable. If I am so persuaded, I can disregard the precise controls in a development control plan.

14 Mr Bilinsky took me to a number of objectives contained in clause 1.8 of the development control plan. The first is, as set in 1.8(d):

To ensure that landscape features such as prominent ridge lines, hill tops, horizons, slopes and topographic features that are prominent when viewed from a public place are protected from the siting and design and landscaping of rural development that conflicts with their prominence and scenic qualities.

15 The landscape setting in which I am to access the application for this garage must include assuming completion of the building of the house which is proposed to be adjacent to and conjoined with it. The immediate setting in the landscape within which the garage is proposed to be erected is, therefore, that of the 80 m length of the house portion of the structure depicted in the photomontage attached to these reasons for decision.

16 As will become obvious, I am satisfied that, had the house not been approved in the form, materials and colours that have been approved, this decision would have been a significantly different one.

17 However, the council has set the context against which I am obliged to determine the application – that context is an 80 m mid-dark brick house with a red steel roof on an intermediate ridge line.

18 Objective 1.8(c) of the DCP is:

To recognise and protect the scenic resources and values of the Shire with regard to existing and future tourism potential, particularly in relation to any views and vistas from a public place.

19 I am satisfied, as earlier indicated, that the public places from which this garage would be viewed are ones which are merely likely to offer fleeting glimpses by negligible traffic on a dead-end road. The only extent the site will be viewed or glimpsed (with the exception of one location at which we stopped in Bibbys Lane) will be downward rather than upward. It will be viewed in the context of a valley bowl and, critically, it will be viewed in the context of 80 m of council approved red steel roof conjoined to it. This objective is not breached by this garage in this context.

20 The final relevant matter in the objectives is 1.8(d) earlier noted:

“To ensure that landscape features such as prominent ridgelines ( and a variety of other irrelevant matters ) that are prominent when viewed from a public place are protected.”

21 I am satisfied that this location is not prominent and that any viewing of the garage from public places will be in the context of the already approved 80 m structure immediately adjacent to it.

22 I now turn to the other matters that I am obliged to consider when assessing this application – being matters contained in clause 2.3 and clause 3.2 of the development control plan.

23 It is obvious I am satisfied why the consented future existence of the house is the determinative element in this appeal.

24 There is no significant interruption of view lines as Mr Bilinsky took me to and the question of visual fit of the proposed development is a contextual one - the context being set by the adjacent approved development. When one turns to the performance standards, the development control plan, in 3.2(a)(i) proposes that development should be located away from ridge lines, hill tops, horizons, prominent slopes and the like – particularly when these are viewed from a public place.

25 I have earlier indicated that any Greenhills Road glimpsing of the site is downward into the valley bowl and is, therefore, I am satisfied, not prominent in the context of this performance standard. To the extent that it is viewed prominently from a public place, this is confined to the limited viewing from the narrow location identified in Bibbys Lane. Similar matters applies to compliance with performance standard 3.2(a)(ii) in that the addition to the approved 80 m dwelling will only have, I am satisfied, a low impact.

26 During the course of the proceedings, I asked the council what was the extent of addition to the approved structure that caused the 80 m (which has been determined by the council to be acceptable) to render the 98.5 m length (that is the additional 18.5 m of the proposed garage) unacceptable. I asked where was the point from 80.01 m through to 98.5 m where one came to the point where the camels back was broken by the proverbial straw.

27 The reply was that the box-like nature; the height, width and depth of the structure were unacceptable as an addition to the structure which has already been approved.

28 I am satisfied that the nature of the garage structure, although extending somewhat further to the west than the other comparable box-like structure toward the northern end of the approved dwelling, is nonetheless contextually sufficiently similar to this element already approved by the council. When added to the fact that the materials to be used will be consistent with that which is already approved, this puts the garage into an appropriate context.

29 I have earlier noted that the most heavily trafficked area from which the approved dwelling might be viewed (and, therefore, the garage might be viewed) are three glimpse windows from Greenhills Road and these are in a downward direction. I earlier noted that Greenhills Road is not a through road. I have no information concerning traffic volumes upon this road.

30 Control 3.2(a)(v) requires that:

Rural Developments shall be sited so that they do not impact upon horizons. Buildings that are sited so that they project partly or wholly above the horizon and are seen against the skyline from a public place are generally not permitted.

31 It is clear to me that this requires an assessment relating to viewing on the horizon from a public place. As I have earlier indicated, the only public place from which this building (that is the house and garage combined – but, particularly, the garage which I am being asked to approve) will be viewed on a horizon is from an extremely limited point toward the eastern end of Bibbys Lane. I am satisfied that the number of people who are likely to view it against the horizon, when one sets aside those who live in the approved residence and those who might be invited to visit it, will be insignificant.

32 I am also taken to provisions in the development control plan in part (c) of cl 3.2 dealing with building design materials and colours. In particular, the matters contained in cl 3.2(c)(iv), (v) and (vi) deal with these issues. However, with respect to each of them, the simple proposition, I am satisfied, is, put colloquially, the horse has bolted.

33 The council’s prior approval of an 80 m long dwelling with the materials earlier described sets the context of any future development for the site.

34 Whilst I appreciate that the council has suggested that there are alternative locations where the garage might be located (being locations that are objected to by applicants), I am satisfied that the materials construction context that are discussed in cls 3.2(c)(iv), (v) and (vi) have been fundamentally altered by the approval the council has given for the approved dwelling. As a consequence, although I might not have approved the garage had it been an island development not in the context of the council’s prior approval of the adjacent dwelling (and, indeed, it is likely that I would not have approved it in such a context) that context does not exist given the approval by the council of the adjacent dwelling in the same materials.

35 The overall conclusion that I have therefore reached is that:

1. The appeal will be upheld in its entirety; and
2. Development consent will be granted subject to the conditions filed by the council (with the addition agreed to the parties that will permit the lowering of the floor of the garage by a maximum of one metre to permit the option of agricultural machinery using it).

Tim Moore

Commissioner of the Court