Walker v Greater Argyle Council

[2006] NSWLEC 232

Land and Environment Court

of New South Wales

CITATION:

Walker v Greater Argyle Council [2006] NSWLEC 232

PARTIES:

APPLICANT
John Walker

RESPONDENT
Greater Argyle Council

FILE NUMBER(S):

10436 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Consent Orders for construction of a museum shed structure.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30/03/2006

EX TEMPORE JUDGMENT DATE:

03/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Pickles, barrister
Instructed by Macedone Christie Willis

RESPONDENT
Mr A. Bradbury, solicitor
of Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 March 2006

(previously Greater Argyle Council)

JUDGMENT

1 This matter has come before me this morning as consent orders. The proposal is for a museum shed structure to be erected on the subject land Lot 1, DP232079, known as No. 107 Taralga Road, Goulburn, on the corner of Ross Street. The subject site is some 1880 sq m.

2 The site is zoned, Living Area, under the Goulburn Local Environmental Plan 1990 and cl 3 contains a number of aims and objectives. In particular cl 8 provides the zone objectives, and for a living area it states:

To identify land suited for residential purposes to facilitate orderly economic and immediate availability of an adequate supply of land for residential purposes, facilitate the effective provision of a range of adequate affordable and suitable housing, to manage land use to ensure that development is consistent with the primary use of land within the zone for residential purposes.

3 The LEP also contains a number of particular objectives including:

(c) To permit other forms of development and services which are associated with ancillary or supportive of a living area if they are compatible with, or complementary to the particular amenity, character, and requirements of residential localities within the zone. And this includes a number of uses. It is also to permit for an efficient use of the infrastructure of the area and also,
(f) is to promote achievement of a high quality of residential by providing for reasonable standards of privacy, solar access, open space, et cetera and
(g) to allow residents to conduct a reasonable range of activities from their homes where such activities are not likely to adversely affect the living environment of neighbours. And the subject use is permissible in the zone provided it does not impact on the amenity of the residential area.

4 The site is large for a single residential lot, being some 1880 sq m and the current use of the subject land is for a residential dwelling house, together with a shed structure, that accommodates certain museum items, or old machinery with historic interest.

5 The matter came before the Court today as consent orders, and in accordance with the practice direction I am satisfied that the council has advised objectors, in particular the adjoining neighbour, Mrs Carver who in her letter of objection raises a number of concerns.

6 The Court has the benefit of the Court appointed expert, Mr David Crane a consultant planner. I am satisfied from his Statement of Evidence provided to the Court, and on the questions that have been answered by him today in Court, that Mrs Carver’s concerns have been considered in the assessment of the development application.

7 In response to her concerns there have been a number of additional conditions proposed to ensure that the proposed activity is one that will not interfere with the residential amenity of her dwelling house and the area in general. The shed is to be now provided with a door to ensure that the opening can be closed, and this will ameliorate any noise impacts emanating from the activity, and this is to be closed when there may be noisy activity, or when in fact the use of the shed is not active. And this will also ensure that the activity of the museum is contained within the purpose built shed.

8 There was also concern in her letter expressed about the location of a garbage, or a waste area, and a garden shed adjacent to her boundary. The applicant has agreed to re-locate these structures to the south near the apron of the shed so that they will not be visible from her property. ,. And this will also facilitate a continuous screen hedge of fotina robusta to be planted along the boundary at 1 m intervals between her property and the subject property.

9 It is also proposed that there be additional vegetation of shrubs-pittosorum species, planted, within the property. Along the Ross Street elevation where the shed will be visible, there is to be additional plantings of gum trees as well. The landscaping is to be undertaken prior to the issuing of the construction certificate and be maintained as part of the consent.

10 Mrs Carver also expressed concern about her asthma being exacerbated by the proposed development. The wood burning would only occur on the days of the open exhibition, which is four occasions per year, five days identified in the application. I am satisfied on Mr Crane’s evidence that there is no prohibition of wood burning fires in the residential area generally, and that the additional amount of wood burning that would occur as a result of the activities of this development are not ones that would warrant refusal of the application.

11 It is also proposed in the conditions of consent to have a plan of management whereby the activities of the use are to be in accordance with a plan of management. This includes that at all times the site is to be maintained in a tidy and orderly manner to ensure that the residential amenity of the area is maintained, and indeed, this is a requirement of the LEP that the use is only permissible where “it does not impact adversely on the residential amenity of the area”.

12 I am satisfied that provided the development is carried out in accordance with the plan of management, which is a condition of the development consent, that this development application presents the opportunity for the existing nature of the activity to be confined, or contained, and in fact co-exist harmoniously in the residential area, having regard to the restricted nature of the plan of management, and having regard to the four occasions on which the museum will be open to the public to display the machinery.

13 As I stated, I am also satisfied in terms of the Court’s Practice Direction, that the necessary advice to the objector has been carried out, and that her concerns have been taken into consideration, and indeed a non residential activity in a residential area requires the amenity to be maintained. It is important that the concerns of neighbours are genuinely addressed, and I am satisfied that the Plan of Management goes to ensure that the residential amenity is maintained and that the applicant is to at all times comply with the Plan of Management and the terms of the development consent.

14 Therefore, on the basis of my assessment, I see no reason as to why the Court should not agree to the consent orders.

1. The appeal in respect of the property known as 107 Taralga Road, Goulburn is upheld.
2. The development application submitted to the then Greater Argyle Council, now the Goulburn Mulwaree Council, and as amended and shown in the plans known as exhibit B, is determined by the granting of consent subject to the conditions contained in annexure A. (Annexure A also includes the Plan of Management.)
3. The exhibits are returned with the exception of B, D, and 3.
4. The Court notes that the parties agree to pay their own costs.

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