Palmer v Auburn City Council

[2010] NSWLEC 1308

Land and Environment Court

of New South Wales

CITATION:

Palmer v Auburn City Council [2010] NSWLEC 1308

PARTIES:

APPLICANT
Raymond Andrew Palmer

RESPONDENT
Auburn City Council

FILE NUMBER(S):

10682 of 2010

CORAM:

Hussey C

KEY ISSUES:

SECTION 121B ORDER :- Demolition order; unauthorised garage excessive size and not consistent with development controls; impact on neighbourhood.

LEGISLATION CITED:

Land and Environment Court Act 1979
Auburn Local Environment Plan 2000
Auburn Local Environment Plan 2010
Auburn General Requirements Development Control Plan
Auburn Detached Dwellings Development Control Plan
Auburn Stormwater Drainage Development Control Plan
Building Code of Australia

DATES OF HEARING:

9 November 2010

 
DATE OF JUDGMENT: 

10 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Briggs (solicitor)
SOLICITOR
DC Briggs & Associates

RESPONDENT
Mr A Hudson (solicitor)
SOLICITOR
Wilshire Webb Staunton & Beattie Lawyers

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 November 2010.

10682 of 2010 Palmer, Raymond Andrew v Auburn City Council

JUDGMENT
Background

1 This appeal is against a s121B Order requiring the demolition and removal of an unauthorised garage that has been constructed in the rear yard at 71 Victoria Street West, Lidcombe.

2 The garage is described as having an area of approximately 91.2sqm with a width of 12m and depth of 7.6m. It is a portal framed structure with green colourbond sheeting, which sits on a concrete slab. The garage structure covers practically the entire width of the lot, with minimal side and rear setbacks.

3 This site is described as Lot 22 Sec G DP 1767. It has a total area of 473 sq m, a frontage of 12.19m and side boundary of 38.43m. There is an existing dwelling on the site, which has a side garage that can contain 3 vehicles in stacked configuration.

4 The agreed Statement of Facts and Contentions contains a detailed history of the matter. This includes an application for a Building Certificate, which was refused. A number of detailed contentions were identified by council, which are summarised as:

• Failure to obtain prior development consent and construction certificate.
• Compliance with BCA requirements.
• Design control compliance, particularly site coverage/built upon area, deep soils zone, outbuildings control, stormwater arrangements, and
• Neighbours concerns.

5 The following controls have been identified as relevant:

• EP and A Act 1979.
• Auburn LEP 2000.
• Auburn LEP 2010.
• Auburn General Requirements DCP.
• Auburn Detached Dwellings DCP.
• Auburn Stormwater Drainage DCP
• BCA

The evidence

6 This matter commenced on-site by way of a s34 Conference. As no agreement was reached, the parties agreed to Hussey C determining the matter on the basis of the party’s submissions and details discussed and viewed at the site inspection.

7 Mr G Francis, council’s manager of planning gave evidence. The property owner, Mr Palmer explained his position, particularly the circumstances of his need for the larger shed to contain his classic cars.

8 For the determination of this matter, the parties agree that the main evaluation criteria involves:

i. Consideration of the circumstances of the case.
ii. The merits of the building relative to the relevant planning controls to assess the likelihood of the building gaining consent .

9 The applicant’s case is that the existing garage is required to be maintained for the storage and security of classic cars and parts. The garage was built generally near the site of an older garage and shed that was demolished. However prior to commencing construction, Mr Palmer says that in October 2006 he contacted a female council officer regarding requirements for a detached garage structure in the rear yard. He understood from this that existing structures could be replaced and that no consent was required.

10 Having considered the council’s concerns, the applicant has submitted an option involving:

• The removal of a 2.5m long x 1.5m deep section on the north western corner to facilitate planting adjacent to the back boundary and also allow access to the rear roof area for maintenance.
• Alternatively the rear wall could altered to allow a 1.5m rear boundary setback.

11 However the submissions for council are that these options are unacceptable because they do not address the fundamental issue that the structure is too large in the subject context, as demonstrated by the substantial non-compliances with the DCP controls.

12 Notwithstanding this and taking into account the applicant’s circumstances, council conceded that it could be prepared to accept an option which reduced the overall width of the garage to approximately 8.3m and which retained the existing non-compliant boundary setbacks.

13 In assessing these different options, the parties have referred to the DCP controls as shown in the following compliance table:

Control	Existing Provision	Variation
Site Area (473 sqm)
Max site coverage D2.5	65% 307.45	75% 354.75	+10% 47.3
Deep soil zone D3.7 Area deep soil D3.8	30% 141.9 Rear at least 50% of rear boundary	20% 98.5 None	-10% 43.4
Outbuildings D8.1 floor space D8.2 enclosed area D8.5 deep soil. D8.5 height	Not located in deep soil zone. 2.7m (floor ceiling)	72 sq m 2.7m at side, 3.3m to ridge	+44% 0.6 at ridge only.
Access policy D4.1	2 covered spaces maximum	9 covered spaces

14 From his assessment, Mr Francis says that the existing garage shows excessive departures from the current controls for this area and he does not support its retention as built.

Conclusions

15 Having considered the various submissions and observations at the view, I am not satisfied that the applicant’s preferred outcome for retention of the existing structure is reasonable in the circumstances. It is apparent that there is competition between the private interests and the public interest outcomes that compliance with the intent of the planning controls is endeavouring to achieve.

16 Insofar as s121ZK of the EP&A Act gives the Court, on appeal, wide powers to make any other it thinks fit, I rely on the agreed evaluation criteria discussed by the parties.

17 This then involves consideration of the relevant planning controls in order to assess whether a notional development application would likely be approved. Accordingly, the relevant controls are contained within the Detached Dwellings & Dual Occupancy DCP.

18 Section 2.0 deals with built form with following stated and relevant objectives:

a. To ensure that all development contributes to the improvement of the character of the locality in which it is located.
b. To ensure that development is sensitive to the landscape setting and environmental conditions of the locality.
c. To ensure that the appearance of development is of high visual quality and enhances and addresses the street.
d. To ensure that the form, scale and height of the proposed development protects the amenity of adjoining properties and the locality.
e. To ensure the form, scale and height of proposed development responds appropriately to site characteristics

. ..

19 Section D2.5 stipulates that for lots 450 sq m or above, the maximum site coverage is 65%. Insofar as the proposal has an approximate 10% exceedence, I accept that this could be adjusted with the removal of the concrete apron at the house. This would also improve the situation in terms of better achieving required area for deep soil planting.

20 However it seems to me that the critical controls are contained in the following Section 8 – Outbuildings:

All outbuildings should be minor constructions, which have minimal impact on the ground and adjoining properties. Outbuildings should not restrict the flow and drainage or ground water, and they should not generate excessive overshadowing onto adjoining properties.

Outbuildings should be positioned to optimise backyard space. Where adjoining properties contain an outbuilding on the property line, it may be appropriate for an outbuilding to be built along the shared party wall .

21 I am satisfied that the existing building falls within this section, because I would characterise it as a garage, which is covered by D8.1. Insofar as it is larger than the stated ‘double garage’, nevertheless D8.2 limits the total floor space to 50 sq m. On this index, I agree with Mr Francis that the garage has excessive floor area.

22 In my assessment, one of the primary aims of the controls is to ensure that the form and scale of the building protects the amenity of the adjoining properties and the locality. This outcome is to be achieved in part, by reasonable compliance with the deep soil zone. Relevantly D3.7 requires 30% of site area to be deep soil zone, together with the D3.8 requirement that the majority be provided as a consolidated area at the rear of the building and should extend across at least 50% of the rear boundary.

23 As the garage practically extends across the entire lot, thereby preventing any deep soil area along the back boundary, I consider this a significant non – compliance, which is unacceptable in the circumstances.

24 The intention for outbuildings is that they should be minor structures which have minimal impact on the ground and adjoining properties. But Mr Francis does not consider the existing garage is classified as a minor structure, which satisfies the other requirements. I agree with his opinion in this regard. Whilst the garage does not cause any significant overshadowing, nevertheless the solid rear wall negatively impacts on the open outlook and visual amenity intents anticipated by the ‘50% open/ deep soil area’ envisaged by the controls.

25 It is also apparent that the intent of the controls is to optimise the backyard space by way of providing vegetative opportunities to enhance vegetation and wildlife corridors. I do not consider this garage achieves this.

26 Accordingly, I do not consider the 2.5m x 1.5m “cutouts” or the suggested 1.5m rear wall setback overcomes these concerns. Instead, it seems to me that the option offered by council represents a reasonable balance. In my assessment, this would still result in a significant structure in the back yard, but at least it would incorporate an approximate 3.8m setback to the western boundary, which breaks the extent of the building along the rear boundary and allows a better area for landscaping, albeit still deficient in terms of the DCP.

27 Coincidentally, it appears this option would result in a width of rear garaging that is very similar to the original garage that was demolished. One this basis, this option would present a similar level of visual amenity to that previously existing.

28 This outcome would also address to some extent the concerns expressed by the rear neighbour about the excessively bulky appearance of the existing structure.

29 In summary then, I consider the existing garage is of excessive bulk and scale that would be unlikely to obtain consent. From my observations of the surrounding area, garages of this scale with zero boundary setbacks are uncommon and not characteristic of the neighbourhood. However the implementation of the council option would allow for the parking of 3 vehicles in the garage, which coupled with the other existing on-site vehicle parking area for 4 vehicles, allows a total of 7 spaces, where the controls prescribe a maximum of two covered spaces per dwelling in this area.

30 Accordingly, the Court intends to make a new order that requires the partial demolition of the western part of the garage, in accordance with council’s option. The parties are now invited to bring forward appropriate draft orders, which also detail requirements for amended plans, stormwater disposal, including the components of the charged drainage disposal system to be located within the open space are achieved by the demolition, landscaping arrangements and areas of concrete removal. These details to be filed within 7 days.

___________________

R Hussey
Commissioner of the Court