Vella v Hawkesbury City Council

Case •

[2020] NSWLEC 1199

•

14 May 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Vella v Hawkesbury City Council [2020] NSWLEC 1199
Hearing dates: 22 April 2020
Date of orders: 14 May 2020
Decision date: 14 May 2020
Jurisdiction:Class 1
Before: Peatman AC
Decision:

Refer to Orders at [74] and [75]

Catchwords:

DEVELOPMENT APPLICATION – for the use of an awning addition attached to an outbuilding – floor area/area – overdevelopment – dominance in the streetscape or rural setting – visual prominence – cumulative impact – land use conflicts – amenity and public interest

  BUILDING INFORMATION CERTIFICATE – approval for a partially built awning attached to an outbuilding
Legislation Cited: Environmental Planning and Assessment Act 1979
Hawkesbury Development Control Plan 2002
Hawkesbury Local Environmental Plan 2012
Land and Environment Court Act 1979
Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141
Goldin v Minister for Transport [2002] NSWLEC 75
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited: Commonwealth, Parliamentary Debates, Legislative Assembly, Environmental Planning and Assessment Amendment Bill 2012, 24 October 2012, (Brad Hazzard, Minister for Planning and Infrastructure and Minister Assisting the Premier on Infrastructure)
Hawkesbury Development Control Plan 2002
Macquarie Dictionary (Version not identified)
Category:Principal judgment
Parties: Eucharist Vella (Applicant)
Hawkesbury City Council (Respondent)
Representation:

Counsel:
A Gough (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

  Solicitors:
Storey & Gough (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2019/32980 and 2019/54064
Publication restriction: No

Judgment

  1. COMMISSIONER: There are two proceedings before me:

  1. Case No. 2019/32980 - Development Application No. DA0028/18 (DA) which seeks consent to carry out development described as an awning attached to an existing outbuilding on the land known as 163 Glenidol Road, Oakville (“DA proceedings”); and

  2. Case No. 2019/54064 - Building Information Certificate Application No. BC0057/18 (BIC) for the partially completed awning structure that has been erected on the land known as 163 Glenidol Road, Oakville Land (“BIC proceedings”).

  1. The DA proceedings were commenced pursuant to s. 8.7 (1) of the Environmental Planning & Assessment Act 1979 (the EP&A Act) on 31 January 2019.

  2. The BIC proceedings were commenced pursuant s. 8.25 of the EP&A Act on 18 February 2019.

  3. The parties have agreed that:

  1. the evidence in the DA proceedings is to be the evidence in the BIC proceedings;

  2. that if the Applicant is unsuccessful in the DA proceedings then the Applicant will also be unsuccessful in the BIC proceedings; and

  3. If the Applicant is successful in the DA proceedings, then the Court would grant the BIC under particular terms.

  1. The Contentions that remain unresolved in the DA proceedings are as follows:

1.

Excessive Floor Area

The development application should be refused as the floor area of the proposed development is excessive and does not comply with the controls or objectives for the size of outbuildings in Chapter 8 of Part D of HDCP 2002.

2.

Overdevelopment

The development application should be refused as the proposed development represents an overdevelopment of the site.

3.

Land Use Conflict

The development application should be refused as approval of the proposed development will result in land use conflict between the proposed awning and the tourist and visitor accommodation located on the site.

4.

Public Interest and Precedent

The development application should be refused because approval of the proposed development will create an unacceptable precedent for similar inappropriate development and non-compliance with the Respondent’s controls in the area, which would not be in the public interest.

Facts: DA Proceedings and BIC Proceedings

  1. The site is located at 163 Glenidol Road Oakville, being Lot 10 in Deposited Plan 239937 in the Local Government Area of the City of Hawkesbury (the land).

  2. The DA seeks approval for an awning that is attached to an existing outbuilding. The awning was partially constructed to frame stage without consent. The awning once complete will have two sides open and will be 12m x 8.5m with a ground level area of 102m2 and a ridge height of 6m above ground level. The awning will be 2m from the nearest side boundary (Exhibit 2 tab 7 p 22).

  3. The land has an area of 2.023ha and lies within a zoning of RU4 Primary Production Small Lots (Exhibit 2 tab 7 p 22).

  4. The consents granted for the land are:

  • BA 1259/84 Garage

  • BA 1329/90 Machinery Shed

  • BA 1299/97 Dwelling additions

  • DA 268/03 In-ground swimming pool

  • DA 60/09 Dam shed and tower

  • DA 59/16 Retrospective application – Tourist & visitor accommodation – use of 2 existing buildings.

  • (Exhibit 2 tab 7 p 22).

  1. The Respondent refused to grant consent to DA 28/18 on 3 January 2019 (Exhibit 2 tab 8 p 22).The DA proceedings commenced on 31 January 2019, and a Conciliation Conference pursuant to s. 34 of the Land and Environment Court Act 1979 (Court Act) was held and terminated on 11 September 2019.

  2. The parties tendered the following evidence in the proceedings.

  1. DC proceedings

  • Exhibit “A” Class 1 Application excluding plans

  • Exhibit “B” Plans at Annexure A to Affidavit of A. Gough 22/3/19

  • Exhibit “C” Applicant’s Bundle of Photographs dated 21.4.20

  • Exhibit “D” Applicant’s Bundle of Consents 21.4.20

  • Exhibit “E” Statement of Mr E Vella dated 21.4.20

  • Exhibit “1” Statement of Facts and Contentions 20.2.19

  • Exhibit “2” Bundle of Documents 7.4.19

  • Exhibit “3” Joint Experts’ Report of Town Planners 8.4.20

  • Exhibit “4” Draft Conditions of Consent 20.4.20

  1. BIC proceedings

  • Exhibit “F” Class 1 Application excluding plans

  • Exhibit “G” Annexure A to Affidavit of A Gough 22.3.19

  • Exhibit “H” Applicant’s Statement of Facts and Contentions 3.4.19

  • Exhibit “5” Statement of Facts and Contentions in Reply 9.5.19

  • Exhibit “6” Joint Expert Report of Town Planners 14.4.20

Statutory Context: DA Proceedings

  1. The DA appeal was lodged pursuant to s. 8.7 (1) of the EP&A Act.

  2. The relevant planning instrument and regulation are:

  1. Hawkesbury Local Environmental Plan 2012 (HLEP 2012); and

  2. Hawkesbury Development Control Plan 2002 (HDCP 2002).

  1. The relevant parts of HLEP 2012 are as follows:

Part 2 Permitted or prohibited development

………….

2.3 Zone objectives and Land Use Table

(1)    …………………..

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

……………..

(4) This clause is subject to the other provisions of this Plan.

Zone RU4 Primary Production Small Lots

1 Objectives of zone

To enable sustained primary industry and other compatible land uses

To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature

To minimise conflict between land uses within this zone and within adjoining zones.

…………………

3 Permitted with consent

…………….farm buildings……….

  1. The relevant parts of HDCP 2002 are:

“Part D Specific Development

Chapter 8 Farm Buildings and Outbuildings

8.4 What are Outbuildings?

These are buildings that are used for the storage of possessions of the owners/occupiers of the land and are considered under the LEP as structures which are ancillary to an existing land use. These buildings are generally ancillary to a dwelling house and are associated with the normal domestic use of the land.

Outbuildings are not commercial in nature and are typically used by the land owners/occupiers for:

The storage of equipment used to maintain the property

Hobbies, and

Parking of non-commercial vehicles*

*Outbuildings are not to be used for the parking of more than one (1) truck plus two (2) trailers or two (2) small earthmoving machines used primarily off-site by the owner/occupiers of the property.

8.5 Development Controls

….

8.5.1 Siting and Orientation

Objectives

To ensure that farm buildings and outbuildings:

Complement the character of the area and are not visually dominant;

Take into consideration existing and potential uses of the land

Development Controls

Farm buildings and outbuildings should be clustered in one location on the property. Where possible, this should be close to dwellings but not where it will result in land use conflict.

…sited and orientated to minimise their visual dominance and impact on streetscape…

…

8.5.4 Size, Setbacks and Height

Objectives

(a) To ensure that the bulk of farm buildings and outbuildings do not visually dominate the streetscape and the landscape.

(b) Ensure that the size of farm buildings and outbuildings is consistent with the intended use and the size of the property.

(c) Farm buildings and outbuildings should not be visually prominent or intrude into the skyline.

Development Controls

The maximum areas and minimum setback requirements for farm buildings and outbuildings are provided under the following tables:

…

Outbuildings

…

…

(5) The cumulative area for farm buildings and outbuildings on a single property will be considered based on the merits of the proposal.

(6) An open sided verandah or awning of not greater than one third of the area of the proposed…outbuilding may be allowed in addition to the above mentioned maximum allowable areas.”

Contention 1

  1. The Respondent contends that the floor area is excessive and does not comply with the controls or objectives for the size of outbuildings in Chapter 8, Part D of HDCP 2002.

  2. The town planners, Mr G Apps for the Applicant, and Ms N Piggott for the Respondent filed a Joint Town Planning Experts’ Report dated 7 April 2019 (Exhibit 3).

  3. The town planners agreed, in relation to Contention 1, in Exhibit 3 [3.1 (1)] that –

“(e) The subject site has a total area of 2.023 ha;

(f) The total floor area of the existing shed is m2. The proposed awning has a total covered area of 102m2, and will result in a total floor area of the structure of 414m2.

(g) Table 2 in clause 8.5.4 in Chapter 8 of Part D of HDCP 2002 provides for a permissible enclosed floor area of 180m2 for outbuildings on land between 4,000m2 and 4ha in size;

(h) The maximum allowable floor area in Table 2 in clause 8.5.4 in Chapter 8 of HDCP 2002 does not include verandahs, awnings or the like which are open on two or more sides.

(i) Pursuant to Control 6 in Chapter 8, Part D of HDCP 2002, an open-sided awning not greater than one third of the area of an outbuilding may be allowed in addition to the maximum allowable floor area. In the circumstances of the proposed development, an awning of 60m2 in size would be permissible in addition to the maximum allowable floor area for an outbuilding on the site, being 180m2. The total permissible floor area of any outbuilding and associated open sided verandah or awning on the site would accordingly be 240m2.

(j) The proposed development would result in a total floor area of 414m2, which is 174m2 greater than the allowable floor area.”

  1. The Respondent submitted that pursuant to s. 4.15 (1) (a) (iii) of the EP&A Act, the applicable controls in HDCP 2002 must be given proper consideration in the exercise of the planning discretion relating to the determination of the development application, citing Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167.

  2. The Respondent further submitted that s. 4.15 (3A) (b) of the EP&A Act mandates a flexible approach to the provisions of a development control plan where those provisions set standards with respect to an aspect of the development and a development application does not comply with those standards. The provision requires flexibility in the application of provisions of a development control plan and the consent authority is required to determine whether an alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards: Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 at [68]. The Applicant agreed with this approach, although drew a different conclusion on the facts.

  3. The Applicant submitted that the relevant controls were those set out in clause 8.5.4 of Part D of HDCP 2002, particularly “Size, Setbacks and Height” of outbuildings, and that such a provision should be the focal point of the Court’s determination of the DA proceedings, referring to Zhang v Canterbury Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [75].

  4. In answer to the Respondent’s contention that the proposed awning offends clause 8.5.4 of Chapter 8, Part D of HDCP 2002, and Development Control 6, and in particular to the application of “area” as floor area, the Applicant submitted that the term “floor area” is not defined in HDCP 2002. The Applicant then referred to the definition of “gross floor area” in HLEP 2012 and determined that as the awning is open on two sides it does not comply with definition of “gross floor area” in the HLEP 2012. Table 2 in clause 8.5.4 of Chapter 8, Part D of HDCP 2002 excludes awnings that are open on two or more sides.

  5. The Applicant then referred to the terminology in Development Control 6 attached to Table 2 – “… not greater than one third of the area of the proposed farm building or outbuilding may be allowed …” As a result of the use of the word “proposed” the Applicant submits that the awning is not caught by this provision as it is attached to an existing building.

  6. The Applicant then considered the proposed awning in light of the Objectives in clause 8.5.4 of Chapter 8, Part D of HDCP 2002. Objective (a) requires the awning not to visually dominate the streetscape and landscape. The Applicant refers to the Macquarie Dictionary (version not identified) definition of “dominate” meaning “2. To tower above, overshadow … and 4. To occupy a commanding position”, and submitted:

  1. The only view of the awning attached to the shed (outbuilding) is from Glenidol Road from the south-west of the property at a distance of approximately 140m.

  2. The visual impact will be further reduced when existing vegetation planted on the boundary reaches mature height – a condition of consent for DA 60/90.

  3. The surrounding rural landscape has residences (one and 2 storey) and outbuildings. Some of the outbuildings are larger than the Applicant’s subject outbuilding.

  4. The awning will be significantly lower than the existing lighthouse (part of DA 60/90).

  1. The Applicant submits in relation to Objective (b) that the Court should consider the proposed awning to the overall size of the land, referring to Exhibit 2 p 165:

“Outbuildings are not commercial in nature and are typically used by the land owner/occupier for:

…

- Parking of non-commercial vehicles *

*Outbuildings are not to be used for the parking of more than one (1) truck plus two (2) trailers or two (2) small earthmoving machines used primarily off-site by the owner/occupiers of the property.”

  1. The Applicant submits that Objective (c) is to prevent outbuildings being “visually prominent” or from intruding into the skyline. The Applicant refers to a definition of “prominent” in the Macquarie Dictionary (version not identified) – “1. standing out so as to be easily seen; conspicuous; very noticeable: a prominent feature. 2. Standing out beyond the adjacent surface or line, projecting.” The Applicant relies on submissions as set out in [25] above, and that the awing is not easily seen, and views of the structure are only possible from a small length of Glenidol Road at a distance of 140m. The awning does not intrude into the skyline, which is instead characterised by vegetation and a lighthouse.

  2. The Applicant considers Objectives (a), (b) and (c) satisfied, and the Court should uphold the appeal.

  3. The Respondent submitted that given the land has an area of between 4,000m2 and 4ha (Exhibit 2 p 167) the controls in clause 8.5.4 Table 2 provide for the maximum allowable area for a proposed outbuilding, excluding an open sided awning. Development Control 6 attached to Table 2 allows for an awning of not greater than one third of the area of the outbuilding. The Respondent therefore submits that although the proposed awning is open sided, Table 2 and Development Control 6 is a guide that on land this size the proposed awning should be no greater in size than 60m. The Town Planning experts agree with this approach – see [18(i)] above. The Respondent further noted that at 102m2 the proposed awning exceeds the control by 70%.

  4. The Respondent then turned to the Objectives in clause 8.5.4 Chapter 8, Part D of HDCP 2002:

  1. The existing shed to which the awning is proposed to be attached is clearly visible whilst travelling in an easterly direction on Glenidol Road, as is the framing structure of the proposed partly constructed awning. The proposed awning will be more visible if approved and a roof is added.

  2. The surrounding rural landscape has sheds, some of which are larger than the shed on the subject land. In response to Mr Apps justifying a departure from the floor area provision in clause 8.5.4 on the basis that there are “several sheds in the area that are larger than the 414m2 total proposed by the subject application” (Exhibit 3 [3.2] p 8), the Applicant submits that some of those sheds have been approved under prior planning controls (as the subject shed was approved at 312m2 in area where the current control is for a shed of 180m2), and some sheds have not been built lawfully. The Respondent referred to s. 4.15(3A) (c) of the EP&A Act, and to Minister Hazzard’s (as he then was) second reading speech relating to s. 4.15 (3A) (c):

“Under the new provisions the consent authority may consider the provisions of the development control plans only in connection with the assessment of the particular application and is not to have regard to how the provisions in the development control plans have been applied previously or might be applied in the future.”

  1. The Respondent submits that the 102m2 proposed awning cannot be consistent with the rural residential use and size of the property when the land presently contains a range of garaging and outbuildings adequate to meet the covered parking and storage needs of its residents. (Exhibit 3 [3.23] p 11)

  2. As Mr Apps, town planner for the Applicant, states: “The shed exists in the current location which is near a ridgeline…” (Exhibit 3 [3.10] p 8). The shed is 312m2 in area and the proposed awning is 102m2. The Respondent submits that the excessive scale of the proposal will contribute to the visual prominence of the completed structure on the ridgeline that will be clearly visible from Glenidol Road. The proposed development adds to and increases the visual prominence of the shed in its location on the ridgeline.

  1. Ms Piggott, town planner for the Respondent, states in Exhibit 3 [3.15] on page 9:

“Objectives (a) and (b) have not been met as the existing shed is visually dominant from the streetscape when viewed from Glenidol Road...Not even the dwelling located on this site is visible whilst the shed and awning is. I therefore do not agree that the location and distance from the road provides adequate visual separation as one can easily see the overall structure, which includes the awning, when viewed from the street. Furthermore, the shed is located on a ridgeline making the structure even more visually prominent.”

  1. In relation to Objective (a), (b) and (c), the Respondent submits that the proposed awning of 102m2 is not a reasonable alternative solution which achieves any of the objectives of clause 8.5.4 in Chapter 8, Part D of HDCP 2002.

Finding on Contention 1

  1. The words “floor area” in Contention 1 appear to be an error on the face of the document - Exhibit 1. Clause 8.5.4 in Chapter 8, Part D of HDCP 2002 refers to “m2 area” not “floor area”. The objectives and controls in HDCP 2002 should be applied, and the correct application is per m2 in area. However, the size of the outbuilding does not include awnings that are open on two or more sides. The area of 60m2 for an awning is therefore not determinative and compliance with the objectives in clause 8.5.4 of Chapter 8 Part D of HDCP 2002 are to be considered.

  1. The area of the existing shed to which the proposed awning is attached is 312m2. The current control provides 180m2. The existing shed was previously approved with an area of 312m2. However, Chapter 8, Part D of HDCP 2002 gives guidance on further extensions to the shed.

  2. I disagree with the Applicant’s interpretation of Development Control 6 attached to Table 2 in relation to the use of the word “proposed” prior to the word “outbuilding” as the proposed awning can only be considered in conjunction with the building to which it is attached. In my assessment, Development Control 6 is one of the criteria to be taken into account – it is not determinative on its own.

  3. The existing shed is either on or near the ridgeline and is visible when driving in an easterly direction along Glenidol Road.

  4. The intended use of the outbuildings is as set out in clause 8.4 – noted as parking for non-commercial vehicles, with the further notation: “Outbuildings are not to be used for parking more than one (1) truck plus two (2) trailers or two (2) small earthmoving machines used primarily off-site…"

  5. In Exhibit 3 Town Planners’ Joint Report, [3.23] on page 11, Mr Apps sets out the structures including the residence and outbuildings on the land. Mr Vella in his Statement states that the shed houses his metalworking equipment, farm equipment including a tractor, mowers and associated equipment. Presently shed (outbuilding) also houses his tipper truck and small excavator (Exhibit E p 2).

  6. The proposed awning is large enough to house 2 trucks with 2 escavators loaded onto the back of each truck.

  7. The control states that the outbuildings are to be of a size for storage, plus one truck, plus 2 trailers or 2 small earthmoving machines. The present shed appears to be of a sufficient size to contain this plant and equipment plus extra.

  8. The present shed is on or near the ridgeline, and I acknowledge it is lawful. However, that does not mean it is appropriate to approve an extension to the shed, and one which is 102m2 in area. Such an extension will extend the visual dominance and prominence travelling east along Glenidol Road. The shed is 26m in length, and the proposed awning is 8.5m in length (Exhibit B Floor Plan 6385 1 of 2). The proposed awning adds almost 30% to the length of the shed, and its roofline.

  9. I accept the Respondent’s submission that the current outbuildings are sufficient to meet the owner’s requirements for storage set out in Chapter 8, Part D of HDCP 2002 as set out in [16] on pages 7 and 8 above.

  10. For the reasons set out above I find that the proposed awning extension to the shed does not comply with the Objectives (a), (b) or (c) in Chapter 8 Part D of HDCP 2002 as an extension to the roofline (which is at or near the ridgeline) from 26m to 34.5m will be dominant, visually prominent or intrude into the skyline. I find that the existing shed meets Objective (b) to ensure that the outbuilding is consistent with the intended use and size of the property. The addition to the shed of the proposed awning 8.5m in length creates unnecessary bulk to the existing outbuilding. I note the evidence of the town planners that an awning of 60m2 or less would be permissible (Exhibit 3 Town Planners’ Joint Report, [1] (j) p 5). Subject to assessment by the Respondent on any future development application, I agree that this proposition put forward by the town planners appears reasonable.

  11. In applying s. 4.15 (3A) (b) of the EP&A Act I find that the proposed development does not provide a reasonable alternative solution that achieves the objectives set out in Chapter 8, Part D of HDCP 2002.

Contention 2

  1. The Respondent contends that the development application should be refused as the proposed development represents an overdevelopment of the site. The Respondent, in its Statement of Facts & Contention (Exhibit 1) sets out 4 particulars in relation to the overdevelopment of the site.

  2. In answer to those particulars, the Applicant submits:

  1. Based on the area of the land (20,230m2) the area of the site developed if consent was granted would total 1,208m2, or 6%, adopting the calculations of Mr Apps in Exhibit 3 [3.23] on p 11. This is in answer to particular (a) of Contention 2 in Exhibit 1 which states that the proposed development is excessive in size and does not comply with the controls or achieve the objectives in clause 8.5.4 in Chapter 8 Part D of HDCP 2002.

  2. In answer to particular (b): “…The amount of enclosed storage already provided on site is adequate to suit the needs for domestic scale use” and in further response to a submission by the Respondent that the onsite storage is sufficient to meet the “needs” of the residents, the Applicant says that the “needs” of the residents are an irrelevant consideration, and refers to Davies v Penrith City Council [2013] NSWLEC 1141 at [118] – [120]. The Applicant further submits that the proposed awning is required for storage space for machinery, for vehicles and to pursue the Applicant’s interest in metalwork (Exhibit 3 Mr Apps’ [3.20 & 3.21] on p. 11).

  3. In answer to particular (c): “The excessive size of the combined structures does not complement the surrounding landscaped character of the area” – the Applicant submits that the landscaped area is characterised by sheds/outbuildings upon residential properties. Whether or not the sheds were approved by the Respondent is irrelevant, as character comprises consideration of the surrounding environment itself, rather than a narrow consideration of only structures approved under current planning controls.

  4. In answer to particular (d): “The additional structure on the site will increase the cumulative impact of all the structures on the site”, the Applicant submits that the addition of 102m2 built form is de minimis because it is concentrated towards the middle of the property, is screened by other structures and landscaping, and when viewed from the public domain or the adjoining rural landscape would be a very small visual element.

  1. The Respondent replies to the Applicant’s submissions:

“The subject site presently contains a range of outbuildings and other structures which are capable of providing adequate covered parking and storage to meet the needs of the residents. The fact that Mr Vella (Exhibit E) would like to park his truck and escavator outside the shed does not justify adding another structure of the size of the proposed awning.

Whilst there may be other properties in the locality containing large sheds, it is the Respondent’s submission that the addition of the proposed awning will increase the cumulative visual impact of the structures on the subject site because of the concentrated nature of development on the site and the visibility of the existing shed and partially constructed awning from Glenidol Road.”

Finding on Contention 2

  1. Particulars (a) and (b) of Contention 2 had already been traversed in hearing Contention 1. I note the further submissions made by the Applicant and Respondent in relation to particulars (a) and (b), and find that the proposed development is excessive in size and does not comply with the controls or achieve the objectives in clause 8.5.4 in Chapter 8 Part D of HDCP 2002­, although a more modest awning may be permissible by the Respondent. Particulars (c) and (d) have partly been addressed in hearing Contention 1. I note the further submissions of the Applicant and Respondent and find:

  • In relation to particular (c), an extension of the roofline of the existing shed (outbuildlng) from 26m to 34.5m which is sited at or near a ridgeline does not complement the surrounding landscaped character, even though there are other outbuildings in the area which are of a greater size and which may, or may not, have been lawfully constructed.

  • In relation to particular (d), again the extension of the roofline of the outbuilding from 26m to 34.5m which is sited at or near a ridgeline, will increase the cumulative impact of the structures on the site. Such an extension cannot be considered de minimis as submitted by the Applicant.

  1. For the reasons set out above I find the proposed awning represents an overdevelopment of the site.

Contention 3

  1. The Respondent contends that the development application should be refused as approval of the proposed awning will result in land use conflict between the use of the proposed awning structure and the tourist and visitor accommodation located on the site. The Respondent recites clause 8.5.1 of Chapter 8, Part D HDCP 2002 – see [16] p 8 above.

  2. The town planners agree to the following as a matter of fact (Exhibit 3 Town Planners’ Joint Report, [3.34] – [3.37]):

  • The relevant objectives and controls are in clause 8.5.1 of Chapter 8, Part D of HDCP 2002.

  • The site contains two tourist and visitor accommodation cabins approved pursuant to Development Consent No. DA 0059/16.

  • The proposed awning to intended to facilitate truck parking.

  • The close proximity of the proposed awning to the tourist and visitor accommodation cabins will result in land use conflicts and poor amenity.

  • The northern wall of the proposed extension is 1700mm from the carport attached to the adjacent visitor accommodation cabin.

  1. The Applicant submits:

  1. The amenity issue has not been particularised, and in Mr Apps’ view relates to noise associated with starting trucks –

“It is accepted that there is an incompatibility between the use of the visitor accommodation and the use of the awning for the parking of equipment. That incompatibility would arise with noise from the start-up of trucks as they leave for the day. It is most likely that those vehicle movements will be at early hours. Measures can and should be implemented to ensure this incompatibility is mitigated.”

(Exhibit 3 [3.38] on p 14)

  1. Mr Apps suggests 2 solutions to the amenity issue:

(i) “The northern wall of the proposed addition should be treated with an acoustic wall to prevent the transmission of noise to the adjacent cabin. The southern wall of the carport to the cabin could also be similarly treated. A condition of consent can be imposed to that effect.” (Exhibit 3 [3.40] on p 14).

(ii) In the event that the visitor accommodation is used, management of the land can be implemented, for example:

(i) Only trucks and equipment not in use the next day be kept in the awning;

(ii) Only operating the visitor’s accommodation when the trucks are not in use, i.e. weekends, public holidays and other holidays. (Exhibit 3 [3.41] on pp 14-15).

  1. There will be no conflict in the use of the property if the Court adopts the conditions of consent proposed by Mr Apps in (b) above.

  2. Conversely the proposed awning would increase the amenity of these cabins, especially Cabin no. 2. This arises because the shed (outbuilding) does not presently have any noise attenuation measures in place, whilst the condition proposed by Mr Apps will not only attenuate noises from a truck under the awning, but also from activities which occur within the shed, such as noises associated with the metal work.

  3. The proposed awning development will also remove the need for the applicant to load an excavator onto and off his tipper truck every weekday morning and night (Exhibit E [6]) which will reduce both noise levels, and vehicle movements, in close proximity to the cabins.

  1. The Respondent submits that:

  1. The proposed awning is intended to facilitate truck parking.

  2. The close proximity of the proposed awning to the tourist and visitor accommodation cabins will result in land use conflicts and poor amenity.

  3. The proposed awning does not take into account the existing uses of the land and is inconsistent with the objectives of clause 8.5.1 in Chapter 8, Part D of HDCP 2002.

Contention 3 Findings

  1. Mr Apps, for the Applicant, identifies a land use conflict, being noise impact on the tourist and visitor Cabins, in particular Cabin 2. The Applicant suggests a solution in conditions of consent requiring acoustic treatment to the northern wall of the proposed awning (1.7m from Cabin 2’s carport), and on the southern wall of Cabin 2’s carport (the southern wall does not appear to exist at present according to Exhibit C Photo 7 – see below). The Applicant has not produced any acoustic evidence that such acoustic treatment will work. Of particular concern is that there is no acoustic evidence that by treating the northern awning wall and the southern carport wall that any noise will simply escape out the 2 open ends of the proposed awning. There is therefore insufficient evidence before me to make a finding that acoustic treatment of the proposed walls would resolve the amenity impact of noise arising from the use of the proposed awning.

Exhibit C Applicant’s Bundle of Photographs: Photo 7 showing the partially built awning attached to the outbuilding, and 1.7m next to Cabin 2.

  1. The Applicant suggests that a further solution is to impose a condition of consent in the terms of [51(2)(ii)] above. The suggestion seeks to limit the use of the cabins to weekends and public holidays, and ingress and egress from the proposed awning to weekdays, Monday to Friday excluding public holidays. These proposed conditions are a limitation on the use of both the proposed awning and the cabins.

  2. The Objectives of Zone RU4 include the objective: “To minimise conflict between land uses within this zone and …” There is a land use conflict between the use of the proposed awning which is 1.7m from Cabin no. 2.

  3. The Objectives of clause 8.5.1 in Chapter 8, Part D of HDCP 2002 require the Applicant to “Take into consideration existing and potential uses of the land”. I find that as the proposed awning is 1.7m from Cabin no. 2 that there is a conflict in the existing uses on the land.

  4. The Development Controls in clause 8.5.1 in Chapter 8, Part D of HDCP 2002 provide that farm buildings should be clustered (which I find they are on the land), but “Where possible, this should be close to dwellings, but not where this will result in a land use conflict”. I find that the proposed awning is 1.7m from Cabin no. 2 which results in a land use conflict.

Contention 4

  1. The Respondent submits that the development application should be refused because approval will create an unacceptable precedent for similar inappropriate development and non-compliance with the Respondent’s controls in the area, which would not be in the public interest, relying upon the facts in this case and the judgment in Goldin v Minister for Transport [2002] NSWLEC 75.

  2. The Applicant submits that the development is both appropriate and absent environmental harm. The Applicant further submits that a variation to a DCP control is not an indication that a development is contrary to the interests of the public, rather it is the appropriate application of s. 4.15(3A) of the EP&A Act.

  3. The Respondent submits that if the proposed development is approved in circumstances where it does not comply with the controls in clause 8.5.4 in Chapter 8, Part D of HDCP 2002 nor achieve the objectives of those controls, it will set an undesirable precedent for future inappropriate development in the locality that no doubt will be sought to be relied upon by others.

Contention 4 Findings

  1. The Applicant seeks consent to an awning measuring 102m2 in area attached to an outbuilding 312m2 in area, and extending the existing 26m roofline (at a near a ridgeline) of the outbuilding by 8.5m, giving a roofline of 34.5m.

  2. The outbuilding in question is a lawful building. However, the current controls for the area of such an outbuilding give a guide of 180m2, with an awning of 60m2.

  3. The granting of a development consent is a right in rem, not a right in personam for the needs of the current owner, those needs being identified in Mr Vella’s Statement (Exhibit E). If consent was granted to the proposed awning it would be a precedent to which other owners of buildings greater than 180m2 in area may seek to rely upon in seeking approval for an awning greater than 60m2 in area.

  4. I find that the proposed development is not in the public interest. The town planners have identified a number of outbuildings in the RU4 Zone, some of which are larger than the subject outbuilding with the proposed awning attached. However whilst some of the larger outbuildings have gained consent, some have been built without consent, and some built larger than the approved plans (Exhibit 3 [3.7], [3.8], & [3.13]).

  5. To grant consent to the proposed awning is not in the public interest for all the non-compliances noted above.

Conclusion on DA Proceedings

  1. Accordingly, for the reasons outlined above that the proposed development does not allow a reasonable alternative solution that achieves the objectives set out in clauses 8.5.1 and 8.5.4 in Chapter 8, Part D of HDCP 2002, and I refuse the consent.

BIC Proceedings

  1. On 29 January 2018 Building Certificate Application No. BC0057/18 (BIC) for the partially completed awning structure that has been erected on land known as 163 Glenidol Road Oakville was lodged with the Respondent.

  2. On 29 January 2018 Development Applications No. DA0028/18 was lodged with the Respondent seeking consent for the use of the partially constructed awning.

  3. On 2 February 2019 the BIC application was refused by the Respondent.

  4. The Applicant appealed the refusal of the BIC pursuant to s. 8.25 of the EP&A Act on 18 February 2019.

  5. I have refused consent to the DA proceedings.

  6. Unless I uphold the appeal to the DA proceedings, the BIC appeal cannot be upheld.

  7. Accordingly, I refuse BIC No. 0057/18.

Orders

Proceedings 2019/32980:

  1. The Court Orders that:

  1. The appeal in proceedings 2019/32980 is dismissed.

  2. Exhibits, other than 1, 3, A, B, C and E are returned.

Proceedings 2019/54064:

  1. The Court Orders that:

  1. The Exhibits in proceedings 2019/32980 are Exhibits in proceedings 2019/54064.

  2. The appeal in proceedings 2019/54064 is dismissed.

  3. Exhibits, other than 1, 3, 5, B, C, E, F, G and H are returned.

………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 15 May 2020

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Cases Cited

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Statutory Material Cited

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Zhang v Canterbury City Council [2001] NSWCA 167
Zhang v Canterbury City Council [2001] NSWCA 167
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151