Willis v Richmond Valley Council 1992

Case •

[2007] NSWLEC 821

•

11 December 2007

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Willis v Richmond Valley Council 1992 [2007] NSWLEC 821
PARTIES:

APPLICANT
David Willis

RESPONDENT
Richmond Valley Council 1992
FILE NUMBER(S): 10206 of 2007 &; 11072 of 2007
CORAM: Hussey C
KEY ISSUES: Development Application :- Non-complying rural shed construction; s121B order to demolish/remove unauthorised works, s96 modification application for retrospective consent.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Richmond Valley Local Environmental Plan
DATES OF HEARING: 10 & 11 December 2007
 
DATE OF JUDGMENT: 
11 December 2007
LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister

RESPONDENT
Ms S Duggan, barrister


JUDGMENT:

      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Hussey C

      11 December 2007

      11072 of 2007 & David Willis v Richmond Valley
      10206 of 2007 Council
          This decision was given extemporaneously. It has been revised and edited prior to publication.
      JUDGMENT

1 These proceedings involve two appeals related to the development of a rural shed (with mezzanine level) at Lot 484 Woodburn Evans Head Road, Doonbah. The appeals comprise No 11072 of 2007, which is a s96 modification application and No 10206 of 2007, which is against a s121B Order.

2 The development was granted conditional consent in December 2004 subject to some 19 conditions which included:

          6. The building is only to be used to store or repair agricultural machinery or agricultural equipment and the garaging of private vehicles used on the particular land or to store agricultural produce grown or used on the particular land. The building must be used as a rural out building only, ancillary to the agricultural use of the land and must not be used for residential commercial or industrial purposes without prior consent of Council.

The Site

3 The site is described as Lot 484 DP 755624 Woodburn Evans Head Road, Doonbah and it has an area of 8094 square metres and a road frontage of 50.29 m.

4 The site is relatively flat and is subject to inundation in storm events to the extent of approximately 1.5 m, in the 1:100 year storm event.

5 The site has been cleared and currently comprises mainly maintained lawn areas.

Planning Controls

6 The Planning controls involve firstly the Richmond River LEP 1992 under which the land is zoned 1 (b1) Rural (Secondary Agriculture) and the proposal is permissible with consent.

7 The stated objectives for this zone are:

          a. to enable agricultural activities and extractive industries to be carried out in rural areas;
          b. to enable other forms of development to be carried out in rural areas;
          c. to protect secondary agricultural land from fragmentation and to ensure its long-term agricultural viability;
          d. to ensure that any development does not make undue demands for the provision of public amenities or services;
          e. to control developments that may restrict the function of or create traffic hazards along main or arterial roads; and
          f. to protect the visual amenity of this rural zone

8 There is also Richmond River DCP No 6 for exempt and complying development.

The Appeal


9 The farm shed with mezzanine level has subsequently been built, but has incorporated and number of changes from the approved plans. The main changes include:


      • Constructing the shed with an eastern side boundary set back of approximately 0.9 m, as opposed to the approved 8 m set back,
      • The construction of internal partition walls on both the ground and mezzanine area.
      • The inclusion of a number of features not indicated on the application or plans, such as the SPA bath, large domestic type fireplace, external BBQ, variations to the windows and door openings. On the mezzanine level there is a kitchen type area, first aid area and office.

10 After inspection of the shed by Council officers, the property owner was served with a s121 Order No 2 to demolish and remove specified unauthorised works comprising:

          1. Internal dividing walls on the ground floor of the shed
          2. Spiral staircase inside the shed
          3. Brick fire place to the ground floor of the shed
          4. Spa Bath in the ground floor of the shed
          5. Internal wall in the bathroom of the shed
          6. Entry foyer to the ground floor of the shed
          7. A 3 m x 4 m extension of the mezzanine floor of the shed
          8. A kitchen on the mezzanine level of the shed
          9. Internal walls on the mezzanine level of the shed
          10. Three external air conditioning units to the shed
          11. The 3.5 m long x 0.9 m high external brick sink area located adjacent the wall of the shed
          12. The 3.5 m long x 1.1 m high brick bar-be-que located adjacent the wall of the shed
          13. The 16 m long x 3 m wide x 1 m high freestanding brick structure located on the southern side of the shed.

11 There is also a second Order, which required the demolition and removal of the timber stairs and a landing at the front of the shed on the subject premises.

12 However, during the progress of the development of the shed the Applicant lodged three s96 modification applications aimed at securing some temporary occupation of the shed and retrospective approval of the stairs and the aforementioned items.

13 These s96 applications were refused by Council and this resulted in the current appeals against the s96 applications and the s121B Orders.

14 The parties agreed that these appeals be heard concurrently and the proceedings commenced by way of site inspection.

15 The Court considered evidence from Mr K Exley; Council’s Director of Environment Services, Mr P Craig; Council’s Development Officer and Mr B Eggins; Council’s Service Administration Engineer and these are all contained within Exhibit 1.

16 For the applicant, evidence was presented by Mr D Chapelle; consulting town planner, Mr Nowland, a building consultant with particular expertise in BCA matters and Mr P Thornton, a bushfire consultant. Evidence was also given by Mr C Jenkins; consulting engineer who certified the structural adequacy of the structure as erected.

17 At the commencement of the proceedings the Applicant conceded that it was prepared to remove or alter some of the unauthorised works included initially, as follows:

      • The spa bath
      • Lowering the drainage surcharge point
      • Connect the sink to the waste water system
      • Provide a termite barrier
      • Elevate water heater and air conditioning units, which are currently situated at ground floor and subject to inundation.

18 The Applicant also sought a modification to Condition 6 to include the larger adjoining Lot 141 being a nominated lot to which the storage of equipment applies.

19 The main concerns expressed by Council are that the inclusion of the unauthorised works readily facilitates the use of the rural shed for residential occupation. Mr Exley describes the shed “as a dwelling, a habitable building, which is not permitted on this land.”

20 After further discussions between the parties the Applicant has agreed to the removal other unauthorised items and the Council is now satisfied with the extent of these works, so as to enter consent orders. The extent of the works are described in the consent orders contained in Exhibit 6 and they basically involve the removal of the internal walls on the ground floor (except for the aquarium room) and on the mezzanine level and other works.

Conclusion

21 Having considered the evidence and have undertaken a view, I initially agree with the Councils’ submissions that many of the unauthorised works in the farm shed would likely change its character from the traditional form of shed as approved, to one that is capable of ready residential occupation. As such it would not in my opinion comply with the intent of the consent, on the basis of the initial construction.

22 However, on the basis of the agreed revisions as stated in the consent orders, I consider that the potential for residential conversion or occupation is restricted and that it would more readily comply with the conditions of consent that restrict residential occupation.

23 I also consider that the conditions regarding the placement of the container satisfactory of the basis of the proposed conditions approved by the parties.

24 In my assessment, it is important that the internal partitions are removed to readily facilitate the use of this ground floor area as storage to permit adequate manoeuvring of the farm equipment and storage of any farm produce. It also eliminates a potential problem with these walls being affected by flood inundation, considering they are not constructed with water resistant materials.

25 Insofar as the approval requires a 20 m asset protection zone (APZ) to satisfy the bushfire risks, which extends onto the adjoining property and is to be secured by way of a s88B instrument, I accept the submissions that there are some extraordinary circumstances to support this. In this case the subject property and the adjoining property are in common ownership and both properties do not have dwelling entitlement. Accordingly, I accept this condition is reasonable to be imposed.

26 I now consider that the agreed modifications address the issues raised in the appeals so the relevant planning objectives and controls are reasonably satisfied and the farm shed can be used for the purpose originally approved. Therefore, I am satisfied that the s96 application can be conditionally approved subject to the agreed conditions and that the modified s121B be made.


27 Appeal No. 10206 of 2007

    1. The appeal is upheld.

    2. Order P41293 dated 10 January 2007 be dismissed.

    3. Order P41293 dated 19 February 2007 modified to;

        a. delete items 5, 6, 7 and 13; and

        b. Order
              1) The sink on the eastern side of the building be relocated adjacent to existing bar-b-que at rear of building. The sink is to be roofed and connected to the On-Site Sewerage Management System;
              2) The bar-b-que and relocated sink are to be provided with termite barrier to protect the shed. The applicant shall provide certification of such work to the Council;
              3) The walls around the aquarium/nursery may be retained. Such walls are to be waterproofed to a height 500mm above the 1:100 year flood level. Such flood level is to be determined by survey and approved by the Council. Such works are to be certified;
              4) The double glass sliding doors in the front elevation are to be removed and replaced with the roller door as shown on the approved plans;
              5) Install a sink inside the shed, adjacent to the nursery/aquarium. Such sink is to be connected to the On-Site Sewerage Management System;
              6) The hot water system is to be relocated internally in the shed at a minimum height 500mm above the 1:100 year flood level. The timber screen around the existing hot water system is to be removed and returned around the external shower such that it does not project beyond the alignment of the eastern wall of the shed;
              7) The surcharge gulley is to be installed 150mm below the finished floor level of the bathroom Such works are to be certified by a practicing licensed plumber;
              8) The motors to the air-conditioning units are to be relocated to a minimum height 500mm above the 1:100 year flood level;
              9) The structural adequacy of the mezzanine floor is to be certified by a practicing structural engineer. The Engineer must be a person not previously retained by the Applicant in respect of the shed. The certification is to be provided to the Council;
              10) Replace the glass door at mezzanine level on the southern side and replace with an non-openable fixed panel of safety glass to AS 1288;
              11) The storage container is to be placed on the brick structure located on the southern side of the shed.
              12) Make good any walls/finishes where these Orders require removal of works and line walls consistently with existing.
              13) The outdoor shower waste is to be disconnected or blocked from the On-Site Sewerage Management System;
              14) The terms of the Modified Order are to be completed within six (6) months of the date of this Order.

28 Appeal No. 11072 of 2007:


      1. The appeal be upheld in part

      2. Modification application MC2005.0167/02 dated March 2007 to consent DA2005.0167 is granted for the construction of a rural farm shed to be utilised in maintaining the natural bushland removal of invasive weeds and undergrowth at lots 484 to 488 and 141 DP755624 Woodburn Evans Head Road, Doonbah subject to conditions hereto and marked A.

      3. Exhibits to be returned.

___________________

      R Hussey
      Commissioner of the Court
      Cc/ljr
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