Shortis v Hornsby Shire Council

Case •

[2004] NSWLEC 644

•

11/24/2004

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Shortis v Hornsby Shire Council [2004] NSWLEC 644
PARTIES:

APPLICANT
Walter Geroge Shortis

RESPONDENT
Hornsby Shire Council
FILE NUMBER(S): 10928 of 2004
CORAM: Bly C
KEY ISSUES:

Development Application :- Appeal against Conditions - Garage
Stables - Tennis Court and Pool Cabana - Setbacks - Rural Character
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Rural Lands DCP
Hornsby Shire Local Environmental Plan 1994
CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167
DATES OF HEARING: 16/11/2004
DATE OF JUDGMENT: 11/24/2004
LEGAL REPRESENTATIVES:


APPLICANT
Mr C Norton, barrister

RESPONDENT
Mr T Pickup, solicitor
of Storey & Gough



JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Bly C

      16 November 2004

      10928 of 2004 Walter George Shortis v Hornsby Shire Council

      JUDGMENT

      This appeal is against conditions 6 and 22 of a development consent which was issued by the council in respect of development application number 1060/03 which is for the erection of a garage/stables, tennis court and pool cabana (toilet/shower and store) in conjunction with the existing dwelling house at 3 Coppabella Rd., Middle Dural.

      More particularly the proposal involves the erection of a freestanding garage with attached stables and a loft storage/area above a garage. Attached to the loft is a balcony, which is accessed via sliding glass doors. The cabana adjoins the existing swimming pool and is set back 6.5 metres from the Coppabella Rd frontage of the site. The tennis court is to be located adjacent to the cabana and setback between 11 and 12.5 metres from the Coppabella Road frontage and 6 metres from the eastern boundary of the site.


      The site comprise is Lot 1 DP 238258 and has an area of 2.02 hectares. It has a modest fall towards the rear of the property.

      The locality in which the site is located is generally developed with rural-residential properties including dwelling houses immediately to the east (No 5) and west (No 1).

      The site is zoned Rural BA (Small Holdings - Agricultural Landscapes) under Hornsby Shire Local Environmental Plan 1994 ("the LEP"). Being ancillary to a dwelling house the proposed development is permissible with development consent under clause 7 of the LEP.

      The objectives of the Rural BA zone are:
            a) to restrain population growth, maintain rural character of the area and ensure that existing or potentially productive agricultural land is preserved.
            b) to promote agricultural use of land and provide for a range of compatible land uses which maintain the agricultural and rural environment of the area.
            c) to ensure development is carried out in a manner that includes the environmental qualities and is within the servicing capacity of the area.
      Also applicable is the Rural Lands Development Control Plan ("the DCP"). Part 3 b – Controls – Elements of the DCP contains a Setbacks element, which has the following objective:
          To provide setbacks that complement the rural and village character, provide for landscaping and protect the privacy of adjacent dwellings.

      The associated Performance Criteria requires that:
          Setbacks in the rural area should complement the rural character and allow for landscaping and open space between dwellings and other structures.

      The site being in a Rural Area the applicable Prescriptive Measure is:
          A minium setback of 15 m should be maintained for buildings and other structures from all property boundaries. Small lots, unable to meet these setbacks, should provide as great a setback as possible and practical from all boundaries.
          Buildings and structures visible from public roads in the rural areas should avoid urban appearance and elements.

      The application was advertised and one objection was received from Mr J Pettigrew of No 5 Coppabella Rd. Expressed concerns essentially comprise:
          • The likelihood of stormwater flowing onto his property, especially from the tennis court
          • The unattractive appearance of the tennis court and cabana so close to the Coppabella Rd frontage
          • The pool cabana has been under construction for some time
          • The absence of landscaping

      In subsequent correspondence Mr Pettigrew expressed further concerns as to the “ illegal construction of a wall and cabana”, these comprising an “ extremely ugly construction”. He asserted that these structures should not be taken into account as justification for the proposed tennis court without proper setbacks. He was concerned that the pool wall and cabane being so close to Copabella Road would adversely affect the rural streetscape and devalue his property.

      The tennis court condition originally in dispute is as follows:
          6. No consent is granted for the proposed tennis court structure and associated fencing and lighting. Such structures do not comply with the performance criteria, prescriptive measures and objectives of the Setbacks element of the Rural Lands DCP. The tennis court in the proposed location on the site will have a detrimental impact on the effectiveness of the waste water disposal system that serves the dwelling house and any relocation of the court to comply with the front setback requirements will result in detrimental impacts on two (2) eucalyptus trees on the site considered to be good and worthy of protection.


      The tennis court is to be 33 metres long and 16.4 metres wide and will be surrounded by a 3.6 m high PVC chain wire fence. It is to be illuminated at night by four pole mounted lamps.

      Whilst on site Mr P Vergison, a council Senior Health and Building Surveyor explained to the Court that the position of the tennis court has now been improved and is now, in his opinion, satisfactory particularly in terms of its appearance when viewed from Mr Pettigrew's property and from Coppabella Rd. He also pointed out that the court is now to be appropriately drained and this will prevent discharge onto Mr Pettigrew's property.

      Following the Court's inspection of the position of the tennis court it was discovered that it could be moved by 800 millimetres to the north and by 4 metres to the west. This would increase its setbacks from Coppabella Rd by perhaps 1 m to about 12 m and 13.5m. The setback from the side boundary would be increased to 10 m. The applicant has agreed to these changes.

      With these changes and subject to the provision of an appropriate landscape setting I am satisfied that the proposed tennis court will not be in conflict with the objectives of the Rural BA zone and the objective of the setbacks element in the DCP. In reaching this conclusion I have taken into account the essentially transparent nature of the tennis court fence and the fact of its near compliance with the setback requirements from Coppabella Rd.

      The condition associated with the garage/stables building originally in dispute is:
          22. The first floor level balcony and full height windows in the eastern elevation of the proposed garage/stables/loft are deleted as indicated in red on the approved plan.


      This condition was imposed because of Council's concern that the first floor loft/storage area would be used for habitable purposes. The applicant has agreed to a condition of consent, which would prohibit the use of this floor for such purposes. It was also pointed out that the provision of the balcony and the windows on the north elevation of the structure had been provided in part as architectural detailing reflective of the architecture in the main house.

      In these circumstances I see no reason why the condition should not be deleted.


      Considerable concern was expressed by Mr Pettigrew in relation to the cabana structure, especially as to its presentation to Coppabella Rd. More particularly he believed that its visual impact would be unsatisfactory as a result of its white colour and its bulk when considered together with the 2.4 m high brick privacy wall associated with the pool and its insufficient setbacks.

      Whilst Mr Pettigrew was concerned that the privacy wall had been constructed without approval, the council in a letter to him dated 5 Nov 2004 advised that the swimming pool had been approved in 1975 together with a brick privacy fence along the front and sides of the pool. I understand that there was some lack of clarity as to the height of this wall on the approved drawings but the legality of the privacy wall is not a matter to be resolved in these proceedings.

      The cabana is to comprise two, three metres square brick structures with gable roofs, six metres apart. The structures are to be 2.4 metres high with an overall height of about 4.3 metres. There is also an interconnecting roof, covering the northern entrance to the pool. The eastern structure of the cabana which is 6.5 metres from the Coppabella Rd frontage is attached to the north-east corner of the pool's privacy wall which is, at this point, about 5 metres from the frontage.

      The cabana and the privacy wall both exhibit significant non-compliances with the DCP's applicable 15 m prescriptive measure.

      Whilst on site Mr Vergison told the Court that taking into account the requirements of the DCP he was not concerned with the cabana. This was essentially because it would not be an excessively large structure and with appropriate landscaping would not be intrusive. He also took into account the existence of the pool's privacy wall. He also did not accept that it would have any direct impact on Mr Pettigrew's property.

      Whilst I accept that the cabana will not affect Mr Pettigrew's property, I have not been persuaded that it meets the requirements of the DCP.

      It is necessary for the Court as the consent authority to take into consideration the relevantly applicable provisions and standards in the DCP. Such provisions and standards must serve as a fundamental element or focal point in such consideration (ZHANG v CANTERBURY CITY COUNCIL [2001] NSWCA 167). These provisions and standards are detailed above.

      As I have already concluded, the privacy wall and the cabana both exhibit significant non-compliances with the DCP's applicable 15 m setback requirement from Coppabella Rd. In this context I do not accept that this prescriptive measure, which requires that buildings and structures visible from public roads in the rural areas should avoid having an urban appearance, is met by the proposal. The bulk and scale of the cabana when considered together with the existing pool wall and their close proximity to Coppabella Rd will result in an adverse impact on the streetscape and the rural-residential character of this locality.

      The proposal will thus, mainly as a result of the entirely inadequate setback, be contrary to the setbacks element and the associated performance criteria of the DCP, which effectively require that new development should complement the rural character and provide for landscaping.

      Whilst I accept that screening vegetation can be provided between the cabana and the pool wall and the Coppabella Rd frontage, this is not a sufficient response to the requirements of the DCP. The setback requirements in the DCP effectively require a 15 m set back for all buildings to provide for an extensive landscaped or rural setting and the cabana, together with the pool wall exhibit a serious and significant non-compliance. The existence of the pool wall, legal in otherwise cannot be a justification for further inappropriate non compliances.

      In these circumstances I also agree that the objective of the Rural BA zone to maintain the rural character of the area is not met and as a consequence the cabana should not be approved. The conditions of consent have been amended to this effect.

      The orders of the Court are therefore that:

          1. The appeal is upheld.

          2. The development application number 106 0/03 for the erection of a garage/stables and tennis court in conjunction with the existing dwelling house at 3 Coppabella Rd., Middle Dural is determined by the granting of development consent subject to the conditions in Annexure ‘A’ (including the plans referred to in Schedule ‘A’ thereof) hereto.

          3. Exhibits A, B, C and D are retained.

    _________________________
    T Bly
    Commissioner of the Court
    ljr

    Annexure “A”
    Conditions of Consent
    Development Application No. 1060/03: the erection of a garage/stable, tennis court and pool cabana at Lot 1, DP 238258 known as 3 Coppabella Road, Middle Dural.
    Site Works


    1. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to:

    1.1. A construction certificate being issued.

    1.2. The erection of sediment control barriers.

    Construction Certificate – Building

    2. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Building Code of Australia, development consent and relevant Australian Standards, a construction certificate must be obtained from either Council or an accredited certifier prior to building works commencing.

    Principal Certifying Authority


    3. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

    Notifying Council of Commencement of Works
    4. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.

    Building Code of Australia


    5. All building work must be carried out in accordance with the requirements of the Building Code of Australia.

    Use

    6.1 The tennis court is not to be used for commercial purposes.

    6.2 Tennis court lighting to be controlled by a time switch, adjusted to extinguish all court light fittings at 10pm each night.

    7 The development approved under this consent shall be used for the purpose as described and no other purpose.
    8 The loft space above the garage/stables is for non-habitable use only.

    Engineers – Structural

    9 All reinforced concrete slabs and footings shall be designed and constructed in accordance with Australian Standard 2870-1 - 1988 "Residential Slabs and Footings" or be designed by a qualified chartered professional structural engineer.

    Protection of Trees


    10.1 In accordance with Hornsby Shire Council's Tree Preservation Order, all existing trees shall be retained except where Council's written consent has been obtained for removal, or where after approval of the relevant development application, trees stand within 3 metres of approved buildings or within the alignment of approved vehicular access or parking areas. Underground utility installations are to be located at least 3m from the trees protected by this condition.


    10.2 Tree guards are to be provided around the gum tree in the vicinity of the north-west corner of the proposed tennis court. The tree guards are to be installed prior to the commencement of any work on the site. Any works, including utility installations (e.g. water, sewer, telephone, drainage), are not to be undertaken within 4 metres of the trunk of any such tree. The tree guard shall be a minimum 1200mm high at least four (4) metres from the base of the nominated tree/s and constructed from timber posts and rails or posts and suitable plywood panels.

    10.3 The developer or contractor will take all measures to prevent damage to trees and root systems during site works, construction activities and the provision of utilities and stormwater drainage services.

    Excavation & Backfilling

    11. All excavations must be properly guarded and protected to prevent them from being dangerous to life or property.

    Inspections – Building

    12. The building works must be inspected by the Principal Certifying Authority and compliance certificates obtained certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:-

          • The pier holes/pads before they are filled with concrete.
          • Slab steel prior to the pouring of concrete
          • The framework including roof members when completed and prior to the fixing of any internal sheets.
          • Drainage lines prior to the backfilling of trenches.
          • Retaining walls before concrete is placed.
          • The building or structure when completed and before occupation or use is commenced.
          • The tennis court when completed and before use is commenced.

        It is the responsibility of the builder/applicant to organise the required inspections and compliance certificates in accordance with the development consent. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours.

    Landscaping


    13 Additional Screen planting is to be provided between the eastern and southern boundaries of the site and the proposed tennis court, to reduce any visual and amenity impacts to the streetscape. A landscape plan is to be submitted for approval by council, such landscaping to be installed prior to the issue of a construction certificate.

    14 All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans.

    15 The area surrounding the building shall be reinstated to good order as soon as practical after the completion of site works including, where necessary, the establishment of new landscaping.

    16 The natural ground level areas are not to be altered unless otherwise indicated on the approved plans.

    Use of Materials


    17 The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare.

    Stable / Keeping of Horses


    18 The floor of the stable must be paved with concrete or mineral asphalt or other equally impervious material, and must be properly graded to drain.

    19 The stables and horse yards are to be sited, constructed and drained so as to prevent manure refuse arising from them, being washed or deposited onto any adjoining property, public place or watercourse.

    20 A box or bin impervious to moisture and flies shall be provided for the collection and storage of horse manure. The horse stable shall be cleaned out daily and the manure storage box/bin shall be emptied at least weekly or more often where it is causing a nuisance.
    21 The first floor of the garage/stables is to be used for the purpose specified on the plans submitted i.e. loft/storage. The loft space is not considered to be a habitable room and cannot be used for human habitation.

    22 DELETED.

    Drainage


    23.1 Roof and collected surface stormwaters shall be collected and disposed of to a site dispersal drainage system. The dispersal system shall be designed to satisfactorily collect rainfall intensities for an average recurrence interval of 20 years. Overland flow from the dispersal trench shall be spread evenly over the land and not discharge water in a concentrated manner onto adjoining land.


    23.2 Surface and subsoil stormwater from in and around the tennis court shall be collected and disposed of to a site dispersal drainage system. The dispersal system shall be designed by a qualified hydraulics engineer to satisfactorily collect rainfall intensities for an average recurrence interval of 20 years. Overland flow from the dispersal trench shall be spread evenly over the land clear of the existing waste water drainage system that serves the domestic and sanitary fittings within the house.


    23.3 The tennis court shall be designed to form a stormwater detention system to achieve temporary pondage of peak rainfall using the court's surface.

    Council Property

    24 No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant.

    25 Any damage that may be caused to any Council property or adjoining land as a consequence of doing or not doing anything to which this approval relates shall be made good, at the applicant's expense, prior to occupation or use of the structure.

    Home Building Act 1989

    26 The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.

    Long Service Levy


    27 Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued.

    Subterranean Termites


    28 The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites ".

    Noise


    29 The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property.

    Tennis Court


    30.(a) The northern fence of the tennis court is to be positioned 4 m from the large gum tree near the northern-west corner of the court. The eastern fence of the tennis court is to be positioned 10 m from the eastern boundary of the site.

    (b) The maximum height of the playing surface shall not exceed 1 metre from the lowest point of the land on which the court is to be constructed.

    Retaining Walls/Survey

    31. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require.

    32. A survey certificate from a registered land surveyor to be provided at "set out" stage confirming that the tennis court has been positioned in accordance with the side and front boundary setbacks indicated on the amended site plan and in accordance with condition 30(a).


    Schedule “A”
        1. Plans drawn by JAG Building Design being:

              a. Ground Floor Plan – Drawing No. 20266-2 dated May, 2003;

              b. First Floor Plan – Drawing No. 20266-3 dated May, 2003;

              c. Elevations – Drawing No. 20266-4 dated May, 2003;

              d. Sections – Drawing No. 20266-6 dated May, 2003;
        2. Plan titled “Proposed Tennis Court for Mr and Mrs Shortis.”


        3. Plan titled “Environmental Metal Halide 4 x 1000 Watt Lighting Systems” by SES Lighting;


        4. Plan (Drawing No. C80) drawn by Classic Courts Pty Ltd and dated September, 2004.

    _________________________
    T Bly
    Commissioner of the Court
    ljr
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Zhang v Canterbury City Council [2001] NSWCA 167