Asfour v Yass Valley Council

Representation: Counsel:
N Hammond (Applicant)
A Menyhart (Solicitor) (Respondent)
Solicitors:
Sterling Legal (Applicant)
BAL Lawyers (Respondent)

File Number(s): 2024/450885

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 230401 for the use of a workshop shed and creative studio for hobbies (the shed) (the proposal), at 5 Ambleside Avenue, Murrumbateman (the site), by Yass Valley Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 June, 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

5. The amended proposal is for the use of the shed as a workshop and creative studio for hobbies; alterations to the existing shed which is steel framed construction clad in Colorbond; the construction of a retaining wall to the rear of the shed; and the removal of three trees located at the rear of the shed between the shed and the proposed retaining wall.

Building information certificate to be obtained prior to occupation

6. The shed the subject of the amended application was constructed without development consent in circumstances where prior consent was required. The conditions of consent at Annexure A include condition 60 requiring a Building Information Certificate to have been issued by the Council for any unapproved components of the shed prior to the issue of an occupation certificate.

Pre-conditions to the grant of consent

7. I accept the Council’s assessment that the site is suitable for the development, having been historically assessed as suitable for residential development when the site was part of a large lot residential subdivision of an estate known as the Ambleside Estate, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

8. The site is zoned R5 Large Lot Residential pursuant to the Yass Valley Local Environmental Plan 2013 (LEP 2013) and the amended proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

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

• To ensure that development is provided with an adequate water supply and the disposal of sewage.

9. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 8 July 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

10. The orders of the Court are:

11. The appeal is upheld.

12. Development Application No. 230401 for the use of a workshop shed and creative studio for hobbies (the shed) with steel frame construction and Colorbond cladding; alterations to the shed; the construction of a retaining wall to the rear of the shed; and the removal of three trees located at the rear of the shed between the shed and the proposed retaining wall, at 5 Ambleside Avenue, Murrumbateman, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (421 KB, pdf)

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