Smith and anor v Great Lakes Council

APPLICANT Mr G Williams, solicitor SOLICITORS THompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr P Rees, solicitor SOLICITORS Mallik Rees Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10002 of 2007 Edwin Clyde Smith and Hazel Jean Winchester v Great Lakes Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Great Lakes Council (the council) of Development Application No 854/2006 for an extension to an existing garage/carport at 46 Alexandra Street Bulahdelah (the site).

2 The matter was originally to be conducted as a Court Hearing however the parties agreed to conduct the matter as an On Site Hearing. The judgement reflects the contents of the Statement of Basic Facts and the findings given on-site on 18 April 2007. The parties were requested to provide conditions that reflected the findings in the judgment at this time however further disagreement arose over conditions relating to the timing of the removal of the carports and the provision of landscaping. The parties made further submissions on 22 May 2007 on the disputed conditions. The site 3 The site is Lot 1 Sec 18 DP 758177. It has a frontage to Alexandra Street (western boundary) and Jackson Street (southern boundary) and an unmade lane (eastern boundary) and a total site area 1442 sq m. The existing dwelling fronts to Alexandra Street and the existing garage/carport fronts was Jackson Street. The existing garage/carport has a total area role of 108 sq m consisting of a garage of 54 sq m (6 m x 9 m) and a carport attached to each side of the garage, each with an area of 27 sq m (3 m x 9 m).

4 The immediate area is predominantly residential in nature. The proposal 5 The proposal provides for the retention of the existing garage/carport structure and an extension of the garage area of 54 sq m (6 m x 9 m) towards Jackson Street with a setback of 8 m. At the hearing, the applicant offered to remove the existing carport structures as a compromise, if required.

6 The proposed extension is to provide secure storage for a range of registered cars, boats and other equipment owned by the applicant. Relevant planning controls 7 The site is within Zone No 2 - Village of Great Lakes Local Environmental Plan 1996 (LEP 1996). The proposed use is permissible with consent within this zone. Clause 8(3) provides that consent must not be granted unless the proposal is consistent with at least one of the objectives of the zone. The sole objective of the zone is: The objective of the zoning is to restrict development to small-scale developments which are compatible with the general residential character of the village areas and which are unlikely to prejudice the viability of established shopping and commercial centres. 8 The council's Erection of Carports and Garages Policy (the Policy) applies. Relevantly, the Policy states that detached garages and carports are to have maximum external dimensions of 6.5 m x 7 m and a maximum external height of 2.75 m. The external dimensions may be exceeded where there are "exceptional circumstances".

9 Mr Gary Warnes, a town planner provided evidence for the applicant and Mrs Robyn Shelley, a town planner provided evidence for the council. The issues 10 The council filed a Statement of Issues containing three separate issues. These can be grouped into the single issue of whether the breach of the Code external dimension requirements unacceptably impacts on the visual amenity and Bulahdelah Village character by way of its excessive size, scale and bulk. Visual impact 11 Mrs Shelley maintained that the proposal adversely impacts on the visual amenity and character of the area. It will feature a longer 18 m unbroken line of colourbond that can be viewed from the unmade lane way, Jackson Street and adjoining and nearby properties.

12 Mr Warnes takes the opposite view. He states that the council has approved similar buildings in the Bulahdelah Village, some in close proximity to the site. In the circumstances of this case, Mr Warnes states that the proposal will be acceptable because of single storey design, the location and the ability for the building to be screened and obscured.

13 As a preliminary point, Mr Williams for the applicant submitted that the Code should be given no weight in these proceedings as the council had not satisfied the matters identified in the decision of McClellan CJ in Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 422 in his consideration of the weight to be given to a council policy. The main inconsistency was seen as the extent to which the Policy has been departed from in prior decisions of the council.

14 Even though Mr Williams provided a number of examples where the council has departed from the size standards in the Code in the Bulahdelah Village without "exceptional circumstances" I am not satisfied that the Code should be given no weight. Stockland provides a number of matters that need to be considered and not just where the council has departed from the policy. For any consideration to be given to Mr Williams submission it would be necessary to know the number of times the council has considered applications under the Policy to know the extent to which the council has departed from its requirements. I note the Policy also applies beyond the Bulahdelah Village.

15 In considering the conclusions reached by Mr Warnes and Mrs Shelley, and extensive view of the Bulahdelah Village was undertaken and a number of examples of garages/carports that exceeded the requirements in the Code were inspected. Mr Warnes relied on a number of industrial type buildings to support is position however I am inclined to disregard these examples even though they have the same zoning as the site. The Village zoning does not differentiate between land uses however different land uses have over time selected specific areas within the Bulahdelah Village for their operation. In my view, any comparison with existing garages/carports can only be appropriately undertaken within the garages/ carports in the residential parts of the Bulahdelah Village. 16 With the benefit of the view of the view of Bulahdelah Village, I accept the conclusions of Mr Warnes but only with removal of the existing carport structures. The Code does not differentiate between garages and carports and the proposed development (with removal of the existing carport structures) will have the same of area as the existing structure although I accept that a garage has the potential to create additional bulk because of its fully enclosed structure. In this case, I am satisfied that visual amenity and impact on the character of the area is acceptable for a number of reasons. These are: o there is no increase in area based on the requirements of the Code, o the proposal satisfies and exceeds the setback requirements to Jackson Street, o the site is a corner allotment and the proposal orientates itself to the secondary street frontage, o the site has sufficient area to accommodate the proposal, o the proposal adjoins an unmade lane, o additional landscaping can be provided adjoining the unmade lane with deletion of the carport structure, o similar structures were approved in the immediate locality and while the structures were generally located behind existing dwellings the visual impact would be still noticeable from the rear yards of adjoining properties and o no objections were received to the proposed development. 17 In relation to cl 8(3) I accept that the proposal is consistent with the objective of the zone in that it is compatible with the general residential character of the village area. The objective also requires that the development be " small scale" although this term is not defined. Having found that the proposed development is compatible with the character of the village area, it follows in my view that the development is also "small scale" taking into account any likely impacts and considered within it's context. Conditions 18 The dispute over conditions relates to conditions 15 and 16. Condition 15 relates to the timing of the removal of the carport structures. The applicant proposes that the carport structures are to be removed prior to the issue of an Occupation Certificate whereas the council proposes the removal prior to the use of the proposed shed extension. As there is no requirement to apply for an Occupation Certificate I accept council's submission.

19 Condition 16 relates to the provision of landscaping and specifically the provision of landscaping on the western side of the shed to screen the shed extension from adjoining properties. The applicant took no issue with the provision of landscaping on the eastern side adjoining the unmade lane. With the benefit of the site view, I am satisfied that the provision of landscaping on the western side is unnecessary. I note that no objection was received from any adjoining property owner. The landscaping condition also raises the question of whether the landscaping should be undertaken prior to the prior to the issue of an Occupation Certificate or prior to the use of the proposed shed extension. For reasons mentioned earlier, the council's alternative wording should be adopted. Orders 20 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No 854/2006 for an extension to an existing garage/carport at 46 Alexandra Street Bulahdelah is approved subject to conditions in Annexure A. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.