Simpson BJ v Holroyd City Council

[2004] NSWLEC 726

Land and Environment Court

of New South Wales

CITATION:

Simpson BJ v Holroyd City Council [2004] NSWLEC 726 revised - 23/12/2004

PARTIES:

APPLICANT
Bruce John Simpson

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

10839 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Covered entertainment/recreational area - Garage - Design and Character

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan 1991

CASES CITED:

DATES OF HEARING:

10/12/2004

EX TEMPORE
JUDGMENT DATE :

12/10/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Simpson, LIP

RESPONDENT

RESPONDENT
Mr B Tobin, solicitor
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

10 December 2004

10839 of 2004 Bruce John Simpson v Holroyd City Council

JUDGMENT

1 This appeal relates to development application No. 2004/400 and involves the erection of a covered entertainment/recreational area to be located at the rear of the existing single storey dwelling at 7 Rose Street, Pendle Hill. The detached pergola type structure is to measure 14.75 m x 7.5 m with a flat metal deck roof and will have a height ranging between 3.4 m and 3.9 m. The matter was dealt with as an on-site hearing.

2 The area in which the site is located mainly consists of single storey fibrous cement clad and weatherboard clad dwellings similar to that existing on the site.

3 The site is zoned 2(a) Residential A in Holroyd Local Environmental Plan 1991. The proposal is permissible with development consent. Clause 9(3) of the LEP requires that consent shall not be granted unless the responsible consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone.

4 The relevant objectives of the 2(a) Zone are:

(a) To provide and maintain the amenity of a predominantly low density living area and to enable sensitive infill of medium density housing styles;

(b) To allow people to carry out a reasonable range of activities from their homes while maintaining neighbourhood amenity.

5 The application was notified and one letter of objection was received raising concerns in relation to shadow diagrams and drainage. Following further consultation by the applicant with neighbours there is no objection to the proposal.

6 The application was deferred by the council to give the applicant an opportunity to consider a number of matters particularly in relation to overshadowing, collection of rainwater, demolition of the existing garage, the alternate position of carparking and open space. The applicant responded to the majority of those matters which are now satisfactory but the remaining issue principally involves the size and design of the structure.

7 No expert evidence was brought by the applicant although he gave extensive explanations of the matters he had considered in producing the design and the changes that have been made.

8 The Court was assisted by Mr Michael Ball, the Court appointed expert, who gave town planning evidence and in short agreed with the decision of the council that the application in its present form should not be approved. I agree with his assessment of the proposal in terms of context and character. I particularly agree with the following matters which he explained in his report: The proposed structure is very much larger than one would normally expect a domestic outbuilding to be. It has an area slightly larger than the existing house. (Here I accept the applicant’s explanation that its size will be slightly smaller than roof area of the existing house).

9 The height of the structure and its proximity to the southern boundary and the consequential impact of the structure on the neighbour are of concern although he accepted that shadows from the structure would not be problematical. He explained that the structure lacks any meaningful domestic scale or design element being a flat steel roof on a steel supporting structure. It has the flavour of an industrial or agricultural structure rather than one reflecting the suburban nature of the site and surroundings. Most of the nearby outbuildings have pitched roofs as suits this location.

10 More generally he said that there are no overwhelming extenuating circumstances, which support the approval of such a large imposing and bland structure on this site. Mr Ball then explained how changes to the proposal in terms of its height, its roof and its size would lead to a proposal that would otherwise be satisfactory.

11 Having considered the nature of this proposal on site, I am satisfied that the evidence given by Mr Ball and the conclusions that be reached are correct. I earlier explained this conclusion to the parties and the applicant responded by indicating that he would prefer to have an amended consent rather than the application being refused and I agreed to this.

12 Negotiations have subsequently occurred and a revised design with a pitched roof, a lowered eave and a significant reduction in length has been produced and which can be effected by conditions of consent. I have been made aware of those conditions and agree to them.

13 The orders of the Court will therefore be:

1. The appeal is upheld.

2. Development Application No. 2004/400 for the erection of a covered entertainment/recreation area at the rear of the existing dwelling house at Lot 57, DP 14209 being No. 7 Rose Street, Pendle Hill, is determined by the granting of development consent subject to the conditions in Annexure ‘A’ hereto.

3. Exhibits 1, 2, 4 and 5 are retained.

___________________
T A Bly
Commissioner of the Court
Rjs/ljr