Soans v Baulkham Hills Shire Council

[2006] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION:	Soans v Baulkham Hills Shire Council [2006] NSWLEC 165
PARTIES:	APPLICANT Bruce Soans RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	11278 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of a shed in the rear of the property - bulk, scale and height - construction materials
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005
DATES OF HEARING:	4/04/06
EX TEMPORE JUDGMENT DATE:	04/04/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr R Creighton, agent RESPONDENT Mr P Vergotis, solicitor SOLICITORS MatthewsFolbigg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 April 2006

11278 of 2005 Bruce Soans v Baulkham Hills Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 3049/2004/M4 for the erection of a shed in the rear of the property at 17 Rialto Place. Kellyville (the site).

2 The proceedings were originally set down for a Neutral Evaluation on 4 April 2006 however the parties agreed to amend the application to an On Site Hearing. The judgement reflects the details in the Statement of Basic Facts and the findings given on site.

3 The proposed shed is 10 m x 7 m with an eave height of 2.75 m and a height to the ridge of 3.45 m. It is to be constructed of painted metal panels and is to be located 1m from the southern and western boundaries of the site. The Court was advised that the shed is to be used for the storage of vehicles and other household items.

4 The site is located in a recently developed residential area that consists predominantly of substantial brick and tile residential dwellings. The school grounds of the William Clarke College adjoin the site on its western boundary with residential development to the south and east.

5 The site is zoned Residential 2(b) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The proposed use is permissible providing that it is used for a purpose ancillary to the residential use of the site. Clause 13(2) provides that consent must not be granted unless the development is consistent with one or more aims of plan and any relevant objectives for development (cl 13(2)(a)) and is not contrary to achieving the objectives of the zone (cl 13(2)(b)). The objectives are set out within this clause under the Residential 2(b) zone. The relevant zone objectives are:

(d) to allow a range of development, ancillary to residential uses, that:
(i) is visually integrated with development carried out on the land and in the surrounding area, and
(ii) services the needs of the surrounding population without conflicting with the residential intent of the zone,

6 Baulkham Hills Development Control Plan No. 34 - Complying Development Residential (DCP 34) provides details of development ancillary to residential development that maybe constructed without development consent. To take the benefit of DCP 34, cl 4.1 provides that the distance between the floor level and the undersized of the eaves is to be no more than 2.4 (cl 4.1(7)) and the floor area of any detached garage is to be no more than 50 sq m. (cl 4.1(10)).

7 Mr David Mackay, a Building Control Coordinator with the council and Mr Phillip North an architect provided position papers on the issues raised by the council. Local residents Mr Sek Wong of 21 Rialto Place, Mr A Gibson of 27 Rialto Place and Mr Dennis Halford of 29 Rialto Place provided further evidence and their properties were inspected in the company of representatives from the parties.

8 The council filed a Statement of Issues containing five separate issues although with the submission of more detailed plans, the significant issue was the height, bulk and scale of the proposed shed.

9 Mr Mackay’s evidence was that the shed was inconsistent with zone objectives (d)(i) and (ii) and should be refused while Mr North maintained that the shed was largely unnoticeable in the neighbourhood because of it’s location and existing and proposed vegetation.

10 With the benefit of the site view I agree with Mr Mackay. I can comfortably conclude that the bulk, scale and height of the proposed shed is excessive for its location even though the opportunities for viewing the shed are limited and restricted to the properties of Mr Wong and Mr Halford.

11 Incoming to this conclusion I do not accept that landscaping is an appropriate means of hiding a building that it is of an unacceptable bulk, scale and height. I also do not accept that the applicants desire for access for a four-wheel-drive vehicle is sufficient justification for the proposed shed.

12 DCP 34 provides generous opportunities for the construction of ancillary buildings and I not convinced that the guidelines in cl 4.1 should be exceeded in this case, particularly as the purpose to which the shed is to be put was not detailed and from the evidence provided to the Court appears to have changed over the life of the application.

13 While not pressed to any extent by the council, I also find that the use of painted metal panels is an inappropriate construction material for a location within a new residential area consisting predominantly of large brick and tile dwellings.

14 I have little trouble in concluding that the proposed shed would the more consistent with a rural setting rather than a new residential area. Because of the unacceptable bulk, scale and height and inappropriate construction materials for its location, I find that the development is inconsistent with zone objectives (d)(i) and (ii) and pursuant to cl 13(2)(a) of LEP 2005 consent must not be granted.

15 I also find that the proposed development is contrary to achieving the objectives of the Residential 2(b) zone pursuant to cl 13(2)(b) of LEP 2005 for the reasons mentioned in the preceding paragraph.

16 The Orders of the Court are:

1) The appeal is dismissed.
2) Development Application 3049/2004/M4 for the erection of a shed in the rear of the property at 17 Rialto Place. Kellyville is refused.
3) The exhibits are returned.
____________
G T Brown
Commissioner of the Court