Walker v Queanbeyan-Palerang Regional Council

Land and Environment Court (NSW)|2022-12-20

JUDGMENT

COMMISSIONER: This is an appeal against the Council's refusal of a development application (DA) for the use of an existing shed (Shed) on the Applicants' property for the purpose of a farm building.
The DA relates to the land described as Lot 30 DP 747879, known as 159 Fernleigh Drive, Googong (Site).
The Shed and its relationship to the existing dwelling house of the Site can be seen in Figure 1: Figure 1 - Aerial photo of building and earthworks taken by Nearmap on 17 October 2021 (Extracted from Ex 4).

Background

Prior to the making of the DA, at some time between June and August 2020, works commenced on the Site. These initially involved the importation and placing of fill on the Site and resulted in the Council giving the Applicants a Stop Work Order (the First Order) pursuant to s 9.35 and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). The First Order required all works in conjunction with the importation of fill, soil, gravel and the like to cease immediately.

Issues

The Council's Statement of Facts and Contentions (Ex 1) contends that the DA should be refused for the following reasons: 1. The DA contains insufficient information to enable the consent authority to be reasonably satisfied that the development is for its stated purpose and is permissible on the land. 2. The DA contains insufficient information to enable the consent authority to properly assess the application. 3. The DA contains insufficient information to enable the consent authority to be satisfied that adequate construction methods (including compaction) have been implemented in carrying out the earthworks to demonstrate that the Site is suitable to support the building and is otherwise suitable for the proposed use. 4. The DA contains insufficient information to enable the consent authority to be reasonably satisfied that the DA complies with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). 5. The earthworks are likely to have a detrimental impact on environmental functions and processes, neighbouring uses and features of the surrounding land, and do not satisfy cl 7.1 of the Queanbeyan Local Environmental Plan 2012 (LEP) or clauses 2.7 and 5.12 of the DCP. 6. The development is not consistent with the objectives of the C4 zone in the LEP. 7. The Shed is excessive in height and has an adverse impact on visual amenity when viewed from public places and adjacent private land. 8. The Shed is excessive in size and has an adverse impact on visual amenity when viewed from public places and adjacent private land. 9. The Shed does not comply with the minimum side boundary setback of 25 m contained within clause 5.4 Building Setbacks and Fencing of the DCP. The setback has an adverse impact on adjacent landowners due to its bulk, scale and proximity to the side boundary. 10. The Shed does not meet the objectives or controls contained in clause 5.12 of the DCP and is not a reasonable alternative solution that achieves those objectives. 11. The development has an unacceptable impact on the visual amenity of adjoining land owners as a result of light pollution. 12. The Site is not suitable for the development. 13. The approval of the DA would be contrary to the public interest.
The Statement of Facts and Contentions contains detailed particulars in relation to each contention.
The Applicants filed a Statement of Facts and Contentions in Reply dated 15 August 2022 (Ex D). The contentions raised by the Applicants may be summarised as follows: 1. Council officers in the assessment of the DA have stated that: 1. the Shed largely meets the controls in the LEP; 2. the Shed "presents no building related issues", a view confirmed by a professional builder engaged by the Applicants, Sean Doble, who provided a letter dated 12 August 2022 which is attached to the Statement of Facts and Contentions in Reply and which concludes that: "It is my professional opinion the building is of sound construction and is solid with all appropriate bracings and tie downs in place. This farm building is safe for use as it meets the mandatory building codes and construction guidelines in Australia." 1. the vegetation clearing associated with the construction of the Shed will have a minimal impact on threatened species, ecological communities and their habitats, if the development is managed correctly; 2. because the Shed is located more than 6 meters from the dwelling, it does not require a bushfire assessment; 3. the Site has suitable vehicular access and adequate services available; 4. the Site is not located in a Scenic Protection Area as identified on the Scenic Protection Map in the LEP; 5. the Shed is 6.59 m in height, which is less than the general height limit of 8.5 m. 1. The Applicants applied for development consent for the Shed on 6 November 2020 and provided various information to the Council in support, including "soil test virgin excavated natural material (VENM) reports". There is "enough and sufficient information to grant consent for use on merit" (Ex D, p.10 par [2]). 2. Development for the purposes of a farm building is permissible with development consent on the Site. 3. The Proposed Development complies with the objectives of the Environmental Living zone. 4. There are no covenants, agreements or instruments restricting the Proposed Development. 5. The Applicants were unaware that they could appeal from the deemed refusal of the DA. 6. The Council Engineer and Building Officer have both indicated they have no objection to the Proposed Development. 7. All setbacks comply with the Council's minimum except the right-side setback. While the right-side setback of 10.3 m does not comply with the Council's required minimum setback, it is similar to the setback of the existing house, which is 13.5 m. The Applicants say that other sheds in the area (eg the sheds at 121 and 197 Fernleigh Drive, 35 and 37 Beattie Place) also do not comply with the required minimum side setback and that actual side setbacks vary between 1 m and 20 m from fence-lines. The non-compliance with the minimum setback could be rectified by carrying out a boundary adjustment with the adjoining land. 8. It is not intended to use the Shed for the purposes of an automotive business and the Applicants have sold their business known as Jaws Automotive. 9. The Applicants have provided sediment control measures with filtration and do regular tests to ensure that water is treated and uncontaminated with sediment. 10. The Applicants complied with the requirements of the DCP in relation to the filling of the Site and provided the Council with "VENM reports and certificates". 11. The Applicants requested a Building Certificate from the Council "but no assistance was provided". 12. The Applicants provided clarification of the proposed building use when requested by the Council. 13. Despite the Council Engineer and Building Surveyor indicating they had no objection to the Proposed Development, the Council report recommended refusal of the DA even before the Councillors had inspected the Site. Only one Councillor actually attended the Site. The Council was biased. 14. The Proposed Development will, as acknowledged by Council officers, have only a minimal environmental impact, "not substantial". 15. If the location of the Shed requires approval from the Civil Aviation Safety Authority, that could be done after the grant of development consent. 16. Six neighbours support the Proposed Development. 17. Any concern the Shed may be used as a residence is unfounded because there are no toilet facilities in the Shed. 18. The Court can grant consent unconditionally or on condition that: 1. the Shed not be used for Jaws Automotive business; and 2. regular checks and tests be carried out in relation to sediment in the waterways on the Site.
The Applicant's Statement of Facts and Contentions included as an attachment, the letter from Sean Doble of Initial Constructions Pty Ltd dated 12 August 2022 (referred to in par [17(1)(b)]. In that letter, Mr Doble states that: "Inspection report of the constructed farm building at 159 Fernleigh Drive Googong NSW 2620 Upon inspection it is of my professional opinion the constructed building meets and satisfies the BCA and the NCC in all aspects from footing preparation, slab preparation and earth works through to the erection of the steel frame work, mezzanine floor structure and all coverings including windows and doors. I have been supplied photo evidence of all works performed that are no longer visible and I am satisfied they were performed within the guidelines and the correct structural steel was used in the footings and the slab. All steel was tied to code therefore satisfies the codes for construction. It is my professional opinion the building is of sound construction and is solid with all appropriate bracings and tie downs in place. This farm building is safe for use as it meets the mandatory building codes and construction guidelines in Australia."

The site and its context

The Site has an area of 13.71 ha and is an irregular quadrilateral shape. It has a maximum elevation of approximately 800 m and slopes down from the east towards Fernleigh Drive to an elevation of approximately 750 m. The Shed is located towards the top of the Site. While it is located behind the existing dwelling and below the ridge line behind it, its size means that is quite prominent when viewed from Fernleigh Drive and other properties in the locality.
The Site is predominantly grassland with some scattered established trees. The Applicants keep alpacas (approximately 24) on the property but indicated at the hearing that this was not presently a commercial operation.
The surrounding area has a rural residential character. Directly opposite the Site is Fernleigh Park and the Fernleigh Park Community Hall.

Planning framework

When the DA was made, the LEP applied to the Site. On 14 November 2022, the LEP was repealed and replaced by the Queanbeyan‑Palerang Regional Local Environmental Plan 2022 (2022 LEP). Clause 1.8A of the 2022 LEP provides: 1.8A Savings provision relating to development applications. If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The LEP therefore continues to apply to the Site despite its repeal by the 2022 LEP.
In accordance with cl. 1.8A of the 2022 LEP and the Court's decision in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, the 2022 LEP is a "proposed instrument" and must be taken into consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act.
The Site is within Zone C4 Environmental Living under the LEP. The land adjoining the Site, except for Block 69 DP 775090 (opposite the Site entrance and used as a playground and public open space), is also within that zone. Block 69 is within Zone RE1 Public Recreation.
Development for the purposes of "dwelling houses" and "farm buildings" is permissible with development consent on land within that zone. The Dictionary to the LEP contains the following definitions: … dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing only one dwelling. … farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling. …
Clause 2.3(2) of the LEP provides that 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. The objectives of Zone C4 are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To encourage development that is designed to recognise the bushland character of the locality where appropriate and to minimise the impact of urban development, particularly on the edge of the urban area. • To ensure that rural residential development provides for integrated rural residential communities in its design.
Clause 4.3 of the LEP provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Site is not identified on the Height of Buildings Map as having a maximum building height. The DCP however provides that the maximum height of any building must not exceed 8.5 m. There is a dispute between the parties about whether that maximum is exceeded.
Clause 7.6 of the LEP imposes additional requirements where the consent authority is satisfied that the proposed development will penetrate the Limitation or Operations Surface. If so, the consent authority must not grant development consent unless it has consulted with the relevant Commonwealth body about the application.
Under the LEP, the Site: 1. is wholly mapped as Biodiversity in the Terrestrial Biodiversity Map; 2. includes a watercourse shown on the Watercourse Map; and 3. is within the catchment area of the Jerrabomberra Creek, which is identified as having biodiversity values on the Biodiversity Values Map published in accordance with the Biodiversity Conservation Act 2016 (BC Act).
Relevantly, under the 2022 LEP; 1. the Site remains within Zone C4 Environmental Living, and the land adjoining immediately north of the Site remains zoned RE1 Public Recreation. 2. the zone objectives for the C4 zone differ from those of that zone in the LEP and include a new objective: 'To encourage development that is visually compatible with the landscape.' 3. development for the purpose of Dwelling Houses and Farm Buildings remains permissible with development consent on the Site; 4. the Height of Buildings Map provides for a maximum height of a building on the Site of 9 m.
A number of provisions of the DCP are also relevant. These are: 1. Clause 5.4 - which imposes a minimum building setback of 25 m for sites between 4 ha and 80 ha in area; 2. Clause 5.5 - which imposes a maximum building height for all buildings of 8.5 m; 3. Clause 5.6 - which requires all buildings to be so designed as to be compatible with the rural character and landscape of the locality; 4. Clause 5.7 - which requires compliance with soil erosion and sedimentation controls; and 5. Clause 5.12 - which imposes a maximum total floor area of 300 m2 for sheds on lots with an area of 16 ha or less.

Public submissions

As noted above at par [9], the DA was publicly notified as the result of which the Council received 5 submissions (Ex 2, Tab 3.11). The issues raised by these submissions are summarised in the Council's Statement of Facts and Contentions (Ex 1) as follows: 1. The location of the Shed and associated earthworks will render the Shed highly visible from Fernleigh Drive and neighbouring properties. 2. The size of the Shed (540 sqm) is excessive for the locality, zoning, and lot size despite the application to vary the DCP. 3. The excessive earthworks associated with the levelling of the Shed site. 4. An internal access road, that is not part of the application, connecting the Shed to the established driveway runs along the southwestern boundary of the Site impacting neighbours by reason of noise and dust. 5. Sediment associated with the proposed works being washed into neighbouring farm dams and the environmentally significant Jerrabomberra Creek.

Expert evidence

Individual expert reports were prepared and filed on behalf of each party. For the Applicant, a report entitled Statement of Environmental Effects was prepared by Momcilo Romic, town planner, dated 20 November 2022 (Ex E). The Applicants also tendered a Certificate of Structural Review prepared by Chris Buchanan dated 20 December 2022 (Ex G) and a sediment control plan prepared by Haitham Kamaldene, a practising architectural designer. Mr Kamaldene did not prepare an expert report but gave oral evidence at the hearing about the preparation of the sediment control plan. For the Council, expert reports were prepared by Jeremy Swan, town planner, dated 21 November 2022 (Ex 4) and by Melinda Corey, environmental health and building surveyor, also dated 21 November 2022 (Ex 5).
The Council objected to the tender of the report by Mr Romic and the certificate by Mr Buchanan on the basis that, contrary to r 31.23 of the Uniform Civil Procedure Rules 2005 (UCPR) neither contained an acknowledgement by the author that he had read the Expert Witness Code of Conduct (Code) and agreed to be bound by it. Rule 31.23 of the Code provides that, "Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it."
There are numerous cases in which Courts have stressed the importance of compliance by an expert witness with the Code: see Wollongong City Council v Ensile Pty Limited ; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154 at [5] and [6] per Jagot J.
I allowed the tender of both Mr Romic's report and also the certificate by Mr Buchanan.
In the case of Mr Romic, he informed the Court by letter dated 16 December 2022, which became part of Ex E, that he had indeed prepared the report having read the Code of Conduct, that he understood his obligations to the Court, and agreed to be bound by the Code. He also gave oral evidence that he had previously appeared in other proceedings before the Court as an expert witness. I am satisfied that Mr Romic was aware of the substantive obligations in the Code when he prepared his report and accepted those obligations at that time, despite his failure to make reference to the Code in his report. I was satisfied in those circumstances that it was appropriate to "otherwise order" and to admit Mr Romic's report into evidence.
In relation to the certificate by Mr Buchanan, the structural adequacy of the Shed is a matter about which the Court would need to be satisfied before granting development for the use of the Shed. As Mr Buchanan's certificate was the only evidence available on this issue, I was not prepared to reject the tender of the certificate. However, I have given the certificate little weight in my determination of the DA because:

Mr Buchanan was not made available for cross-examination despite the Council's request that he attend the hearing for that purpose;
Mr Buchanan's brief one page report provides little information about the scope of his inspection and does not address the adequacy of the fill on which the Shed has been constructed;
The certificate does not indicate that Mr Buchanan was aware that the certificate was intended to be relied upon in these Court proceedings;
As noted above, the certificate does not contain an acknowledgment that the author had read the Code of Conduct set out in Sch 7 of the UCPR and agreed to be bound by it, as required by r.31.23 of the UCPR.

Momcilo Romic

Mr Romic gave evidence that the use of the Shed as a farm building is permissible in the C4 Environmental Living zone, is generally consistent with the aims and objectives of the DCP and "will not impede on important scenic corridors from public places". He says the proposal seeks to enhance the landscape character of the area by providing landscaping to mitigate the visual impact of the Shed.
Mr Romic referred to clause 5.12.2 of the DCP which states that certain types of shed may be erected without development consent. His opinion is that this is confusing when the LEP requires development consent for the same things and that the DCP should be amended to clarify this.
Mr Romic gave evidence that the Shed is constructed of Colorbond sheeting and contains roller doors and a pedestrian door for access. The Colorbond sheeting is "pale eucalypt" in colour. The Shed is constructed on a concrete slab with skeleton steel framing sections. In his opinion, the "introduced contouring on the site to support the farm building is within acceptable levels".
The evidence of Mr Romic is that the Shed is intended to be used by the residents of the main dwelling to store ancillary household equipment, rural equipment and supplies and for "all weather protection purposes". He says the Shed will not be used for commercial purposes and conditions of consent can be imposed to deal with the use of the Shed.
Mr Romic's report includes a Table in which he assesses the DA by reference to s 4.15 of the EPA Act. In the course of doing so, Mr Romic draws the following conclusions:

Soil erosion and sedimentation controls are required to reduce the loss of top soil and sedimentation of drainage lines;
As the Shed is located on a disturbed area of the Site, there is no indication that the Proposed Development may adversely impact on any threatened species, populations or ecological communities or their habitats;
While the Site contains a mapped watercourse, the Shed is located on a disturbed area of the Site and is located away from the mapped watercourse. In his opinion, threats to the hydrological environment are unlikely to be significant. His evidence is that stormwater runoff is currently managed and will continue to be managed for up to 5 years post construction or until all exposed soil has been stabilised.
The lighting installed on the Shed is of a domestic nature and necessary for security and safety purposes. In his opinion, it does not result in "unacceptable luminance intrusion". His evidence is that the nature of the Proposed Development means that it is not a controlled activity and does not penetrate the airspace or affect the operation of the Canberra Airport.
A soil assessment was carried out by ALS Water Resources Group for the Council in relation to samples taken from the fill on which the Shed has been constructed. That report, he says, indicates that the levels of Perfluorooctane sulfonate (PFOS), perfluorohexane sulfonate (PFHxS) and perfluorooctanoic acid (PFOA) are below human health soil screening criteria and his opinion is that the Site is suitable for the Proposed Development.
The side setback of the Shed is 10.3 m which is less than the minimum 25 m setback required by the DCP. His evidence is that the smaller setback is "satisfactory on merit". He says the Council has varied the setback control in the past and that a strict application of the 25 m setback would be unreasonable given the irregular shape of the Site. The proposed setback of 10.3 m is, in his opinion, appropriate "when you consider the locality and context where setbacks range from 3.5 m for 121 Fernleigh Drive and 3.87 m for others".
The LEP does not fix a maximum building height for the Site.
The Shed does not obstruct views and vistas and the colour choice, shape and traditional geometry of the Shed "would not be antipathetic with the rural landscape". His evidence is that the use of earth colours and the incorporation of landscaping will lessen visual intrusion on the landscape and that the Shed "would not be at odds with the existing landscape backdrop".
The location of the Shed on the already disturbed portion of the Site reduces environmental impacts including on native vegetation.
The Shed is consistent with the surrounding height and character of the area. It is set back from adjoining properties and this creates "a physical break". In his opinion the Shed, which does not contain highly reflective cladding, "would not be disruptive to the visual character of the landscape" and any impact will be reduced by the proposed landscaping. The proposed colour is acceptable for the setting.
While the fill placed on the Site exceeds the 1 m maximum prescribed by the DCP, this maximum is "difficult to adhere to because of the sloping nature of the land" and the resulting landform is not out of character with the topography of the Site and surrounding area. His evidence is that this control is more appropriate for smaller sites and is impractical on sites of the size of the Site. His evidence is that there are "extenuation circumstances" and "no detrimental impacts".
Mr Romic gave evidence that the Shed has a floor area of 540 m2, which exceeds the 300 m2 maximum allowed by the DCP by some 240 m2. (However, I note that in cross-examination Mr Romic agreed that this did not take account of the large mezzanine and that when this was included the total floor area of the Shed was 870 m2.) His evidence was that the external finishes of the Shed allow the building "to be camouflaged to fit into its surroundings" and that a landscaping embellishment strategy had been prepared "to assist in mitigating the feeling of visual intrusion". This includes the planting of cypress evergreen screening to reach a height of 7 to 9 m and foliage of 5 m. His evidence is that this would provide a suitable screen for adjoining properties. (I note that the DA before the Court does not include the "landscaping embellishment strategy" or any details of proposed landscaping).
In any event, Mr Romic says that the DCP controls must be applied flexibly. His evidence is that despite the non-compliance of the Shed with the DCP controls, the proposal "meets the desired outcomes of the DCP and LEP and is considered acceptable on merit".

Haitham Kamaldene

The Applicants rely on a sediment control plan (Ex B) prepared for the Proposed Development by Haitham Kamaldene, a practising architectural designer. Mr Kamaldene did not prepare an expert report but gave oral evidence confirming that he had prepared the sediment control plan in Ex B. In cross-examination he accepted that he had no qualifications in environmental science but said that he had read the publication, "Managing Urban Stormwater- Soils and Construction" (Landcom, 2004) (the Blue Book) and had prepared numerous sediment control plans which he said were "not that difficult".

Chris Buchanan

The Applicant relies on the Certificate of Structural Review prepared by Chris Buchanan of Sellick Consultants dated 20 December 2022 (Ex G). I have already indicated that I can only give this certificate little weight in the determination of the DA: see par [39]. In the certificate, Mr Buchanan, a professional engineer, says that he has carried out a structural review of the Shed, as constructed. He says the review included a visual inspection and desktop style review, which included solar panel loading. He states that the Shed's steel members "were observed to be in good condition" and that he was "satisfied that to the best of my knowledge the works are structurally sufficient for its intended purpose".

Melinda Corey

Ms Corey is an environmental health and building surveyor and the Program Coordinator - Environmental Health at the respondent Council. She gave evidence that insufficient information had been provided by the Applicants regarding the earthworks associated with the development and the importation of fill material. Her evidence was that this information is required in order to assess: 1. The effect of the earthworks on drainage patterns and soil stability in the area. 2. The effect of the development on the likely future use of the land. 3. The quantity of the fill or the soil to be excavated, or both. 4. The effect of the development on the existing and likely amenity of adjoining properties. 5. The source of the fill material and any potential for contamination of the fill. 6. The proximity to and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area. 7. Any appropriate measures proposed to avoid, minimise, or mitigate the impacts of the development.
The additional information Ms Corey says is necessary to assess the DA comprises: 1. Amended plans showing the full extent of the completed earthworks, finished levels and the height and dimension of the fill. 2. Hydrologist report detailing impacts on natural drainage lines including diversion of natural drainage lines. 3. Geotechnical engineering report detailing soil type and potential for dispersion and erosion. 4. Detailed site investigation investigating potential contamination of imported fill. 5. Erosion/Sediment control plan prepared in accordance with the Blue Book.
Ms Corey also gave evidence that insufficient information had been provided by the Applicants in relation to the potential contamination of the imported fill on which the Shed had been constructed. Her evidence is that the Applicants claim that the fill material comprises VENM is open to question because soil testing carried out by the Council has identified the presence of per- and poly-fluoroalkyl substances (PFAS) in the fill and this means the fill cannot be classified as VENM. Ms Corey says this warrants further investigation to determine whether the fill material is suitable for use in the circumstances of this DA.
Ms Corey's evidence is that the Site includes a mapped watercourse on the Riparian Lands and Watercourses Map in the LEP, and is within the Jerrabomberra Creek catchment, which is identified as biodiverse riparian land on the Biodiversity Values Map published under the BC Act. Her evidence is that any development on this Site has the potential for unsatisfactory environmental impacts and that additional information is required in relation to identify potential environmental impacts and the ways they can be managed.
Ms Corey also gave evidence that the development on the Site has had a detrimental effect on drainage patterns and soil stability on the Site and in the immediate locality. In her opinion, the lack of stabilisation to the fill batter means that the platform is likely to further erode during periods of heavy rain and that this will result in sediment migrating into drainage lines.

Jeremy Swan

Mr Swan gave evidence in relation to each of the planning contentions raised by the Council.
Mr Swan's evidence is that the Applicants have been inconsistent in their description of the specific purposes for which the Shed is intended to be used and that this means the consent authority cannot reasonably be satisfied that the Shed will be used for a permissible purpose. He accepts, however, that this could be resolved by the imposition of a condition identifying the purpose for which the Shed may (or may not) be used.
Mr Swan gave evidence that the DA does not include a number of plans required by cl 50 and Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) (which still applies to the DA) and Schedule A of the Land and Environment Court Practice Note - Class 1 Development Appeals and says these are required to make a proper assessment of the DA. He says a survey plan is required, for example, to show the location of the Shed in relation to the boundaries of the Site and to enable the overall height of the building to be measured from ground level - existing (i.e. the ground level as it existed before the carrying out of unauthorised earthworks on the Site). Other plans required include a proper site plan, floor plans, elevations, sections, landscape plans and stormwater plans.
Clause 7.1(3) of the LEP sets out a range of matters the consent authority must consider before granting development consent for the carrying out of earthworks and Mr Swan's evidence is that these matters cannot be considered without additional information, such as the survey and the other plans referred to above. His evidence is also that the requirements of cl 7.6 Airspace Operations cannot be properly addressed without a survey which identifies the height of the Shed.
Mr Swan also gave evidence that the Proposed Development is not consistent with the objectives of the C4 Environmental Living zone in the LEP. His evidence is that the Proposed Development is not low impact because the size of the building exceeds the permitted 300 m2 maximum floor area by some 230% and the height of the building is likely to be more than the permitted maximum of 8.5 m (he says he needs a survey to be certain about the extent of the non-compliance with the height control). His evidence is also that the Proposed Development does not have regard to the Site's location and the environmental impacts associated with the development and does not appropriately manage its impacts on adjoining properties in relation to its size, use, setbacks, lighting and visual impact. Mr Swan added this qualification: he says he needs the further information referred to above to be able to properly consider the consistency of the development with the objectives of the zone.
In relation to the height of the Shed, Mr Swan's evidence is that the maximum height prescribed by clause 5.5 of the DCP is 8.5 m. His evidence is that while the Shed measures 6.59 m from the finished level to the pitched roof, it sits on fill and the depth of fill needs to be ascertained in order to determine the height above ground level (existing). In the absence of a survey, Mr Swan estimates the height to be a maximum of 10 to 11 m above ground level (existing), substantially more than the permitted maximum of 8.5 m. Further, Mr Swan's evidence was that the Shed does not satisfy the objectives of the height control because the Shed:

does not complement the character of the area, the Shed is too high, too big in physical footprint terms which is out of character with the conservation zone.
is visually prominent from Fernleigh Drive, which is caused by its height and size in footprint terms.
is visually prominent from adjoining properties including the Public Recreation area across the road from the Site to the North.
is not located to follow the contours of the Site requiring significant filling which results in an intrusive element within the conservation zone which is out of character with the area.

Mr Swan gave evidence that the Shed is excessive in size. He says that the relevant maximum size of a shed on the Site is 300 m2. His evidence is that the total area of the Shed is 540 m2 but, when combined with other existing sheds on the Site, the area of all sheds on the Site totals 690 m2, some 230% more than the maximum allowed. He also gave evidence that the Shed does not satisfy the objectives of the zone because:

The size and height of the Shed result in its being visually dominant and bulky in the landscape.
The Shed is visually prominent from Fernleigh Street and from adjoining properties, including the Public Recreation area across the road from the Site to the north.
The Shed is not located to follow the contours of the site requiring significant filling which results in an intrusive bulky element within the conservation zone which is out of character with the area.

Mr Swan also gave evidence that the Shed does not comply with the side setback control in clause 5.4 of the DCP, which prescribes a minimum side setback of 25 m for the Site. His evidence is that the side setback is only 10.3 m (although he says a survey is required to verify this). He also says that the reduced setback provided by the Shed does not satisfy the objectives of the control because the setback, combined with the Shed's size and height, result in a building that is out of character with the locality and impacts on the amenity of the locality. To be in keeping with the character of the area, Mr Swan says the Shed would need to be smaller in size and height with appropriate landscaping around it.
Mr Swan's evidence also addresses clause 5.12 of the DCP which includes specific controls for sheds. Mr Swan's evidence is that the Shed is inconsistent with these controls because: 1. The Shed is visually prominent because of its size and height and does not complement the scale of the landscape and results in an unacceptable impact on the scenic quality of the area. 2. The Shed has not been sited to minimise unnecessary disturbance to the natural environment, including the large areas for circulation around the Shed. The Shed does not follow the contours of the site, working against them resulting in the need for significant filling. 3. The Shed has not been designed and constructed to be consistent with the surrounding height and character of the area. The Shed exceeds the applicable 8.5 m height limit. 4. Earthworks, specifically filling has not been kept to a minimum. The fill exceeds the maximum fill control of 1 m and Mr Swan's estimate is that the filling is up to 4 m in height.
Mr Swan also addressed the Council's contention in relation to lighting impacts. He noted that the contention could easily be resolved by the provision of additional information but this had not occurred. His view is that, in the absence of details of any landscaping proposed to screen the lighting from adjoining properties, the Proposed Development results in an unacceptable impact on those properties resulting from light spill.

Applicants' own evidence

Leah Walker, one of the Applicants, also gave oral evidence. She gave evidence that her family included 5 children and that members of the family own a number of cars that would be garaged in the Shed. She said the Shed would not be used to provide residential accommodation, that it was not intended to use the Shed for the purposes of the Jaws Automotive business, which had been sold, or for any other car repair business. She gave evidence that the Shed would be used for breeding and shearing alpacas, and for breeding chickens and ducks. She gave evidence that erosion control measures had been undertaken in the form of mulching around the Shed and said that water in the dams was tested regularly for things that might harm her animals. Her evidence was that she did not make any income from the alpacas (nor had she in the past) and that when the alpacas were shorn, the wool was given away.

The Applicants' submissions

The Applicants submit that the Applicants and the Council agree that there is no contention that the DA must be refused. This, say the Applicants, leaves the Court with only two options: to grant consent unconditionally or to grant consent subject to conditions. Those conditions may require the carrying out of landscaping (including tree planting) and the implementation of soil erosion control measures, within 12 months from the date of consent.
The Applicants submit that they have unsuccessfully tried to negotiate consent orders with the Council.
Primarily, the Applicants submit that there is "enough and sufficient" information before the Court in order to grant development consent to use the Shed for the purpose of a farm building. They submit that: 1. an adequate soil erosion control plan (Ex B) has now been prepared and erosion and contamination containment measures have now been provided and maintained; 2. a condition can be imposed requiring landscaping to be carried out within 12 months; 3. both the structural engineer and builder say the building is sound, safe and stable for its intended purpose and use; 4. the Applicants' expert town planner's evidence (Ex E) should be accepted and in particular that: 1. the farm building "is presented in a simple shape and form and architecturally is appropriate for the locality and is not out of character"; 2. the retention of the Shed with the adoption of landscape embellishment does not result in land use conflict or amenity impacts; 3. there is sufficient information provided to enable a proper evaluation of the DA; 4. the Proposed Development is permissible with development consent and is consistent with the zone objectives and the public interest; 5. the Proposed Development will not adversely affect any critical habitats or species as it is erected on an existing cleared area of the Site; 6. the recontouring of the Site is within acceptable levels; 7. the Applicants carry out regular testing of the water on the Site; 8. the DCP setback control must be applied flexibly and the side setback is greater than the side setback of other sheds in the locality. 1. In relation to whether the fill used on the Site is appropriate, the Applicants submit that the testing carried out by the Council was unreliable and, in any event, found that the levels of PFAS in the soil were below recommended thresholds and did not pose an unacceptable risk to human life or the environment. They say that the soil sample was delivered to ALS Water Resources Group for analysis on 24 June 2021 and was stored in an unknown condition for 16 days before it was tested and analysed. The Applicants also submit that the identity of the person who carried out the testing is unknown so that it is also unknown whether they held the qualifications necessary to do the testing. They also say that the Council failed to carry out further testing of the fill or, if it did, it had not disclosed the results of the testing from which it should be inferred that the results did not show any contamination. The Applicants submit that the Court should accept the evidence of their town planning expert, Mr Romic, who gave evidence that the testing carried out was appropriate and indicates that the health soil screening criteria for PFOS, PFHxS and PFOA is below the threshold for residential premises. On this basis the Applicants submit that the results do not indicate the existence of contamination of sufficient significance to stop the use of the farm building for the proposed use. 2. The Applicants are critical of Mr Swan's evidence. They dispute that 4 m of fill was required to construct the Shed and submit that use of the Shed on the fill would not make the use of the farm building impermissible in the circumstances of this application. They say that the plans "show that the site was elevated in its natural state". They also say that Mr Swan did not provide any reason to oppose the use of the Shed as a farm building "based on the speculated 4 m fill". 3. They say that the Shed is not used for the purposes of the Jaws Automotive business and submit that a condition could be imposed precluding the use of the Shed for residential or commercial purposes. They say that, in any case, the Shed cannot be used for residential purposes as there are no toilet facilities provided in the Shed. 4. They say that Mr Swan's concerns about the lack of a structural engineer's certification and plans of the Proposed Development have been satisfied by the expert report by Mr Romic (Ex E) and the certificate from Mr Buchanan (Ex G). The Applicants submit that the Shed has now been certified as being "safe and sound" and is appropriately located. 5. The Applicants submit that Mr Swan's evidence about the size of the Shed cannot be accepted and that "he has nothing to oppose the use of the Shed, as is built". 6. In relation to lighting, the Applicants say they are prepared to accept a condition of the kind proposed by Mr Swan requiring the provision of landscaping around the Shed. 7. Overall, the Applicants submit that Mr Swan was not opposed to the use of the Shed but supported consent with conditions. In that regard, they submit that his views are consistent with the Applicants' own expert and, they submit, "any contrary view would have been in opposition to Council's initial experts reports in 2021", which they submit were favourable to the approval of the Shed.

The Council's submissions

In its closing submissions, the Council submits that the DA should be refused for the following reasons: 1. The Shed is unlawful and it would be contrary to (a) the objectives set out in the EPA Act and (b) public policy to permit a use of something which itself is unlawful. Whilst it might be possible to regularise the Shed, no application for a building information certificate has been made. 2. The fill on which the Shed is located is also unlawful. It being a work, a building information certificate cannot be issued in respect of it. The fill causes environmental impacts which remain a relevant matter for consideration in this DA given the passive use of the fill for supporting the Shed the subject of proposed use. 3. There is ambiguity in relation to the proposed use of the Shed as this is described differently in various documents lodged with the DA. 4. The DA did not include documents required by the EPA Act and the EPA Regulation and as a result, the DA has not been validly "made". Further, in the alternative, if the Court concludes that the DA has been validly made despite the absence of relevant documents, it is submitted that: 1. the absent documents are documents necessary to provide a better indication, or at least an indication in a different form of information required to be contained in the application, in contrast to other documents accompanying a DA which provide information as to effects of the Proposed Development; and 2. their absence precludes the grant of development consent to the DA. 1. The physical attributes of the Shed and fill become relevant in the question of whether to grant consent to the use of the Shed. Granting consent to this DA for use elevates and excuses their unlawfulness, and possibly compromise further action regarding the continuing Development Control Orders. Just as Bignold J, in Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 (Ireland No 2), contemplated the assessment of a notional DA in considering whether a building certificate should be issued for an unlawful building, conversely the Council submits that it is appropriate in the present case to consider a notional application for a building information certificate. 2. Little, if any, weight should be attributed to the expert evidence tendered by the applicant, as the evidence: 1. does not address the contentions set out in the Statement of Facts and Contentions filed 9 August 2022; and 2. does not refer to Sch 7 of the UCPR - Expert Witness Code. 1. There is insufficient evidence before the Court to enable it to properly consider and assess the DA. What evidence there is can only lead to the conclusion of refusal.

The Applicants' submissions in reply

The Applicants submit that the Shed having been erected unlawfully does not preclude the grant of development consent for the use of the Shed as a farm building. They say they are seeking development consent for the use of the Shed and that, on the merits, development consent should be granted.

Development consent should be refused

I have decided that development consent should be refused.
I am prepared to assume for the purposes of this appeal that the use of the Shed as a farm building is permissible with development consent on land with Zone C4 Environmental Living under the LEP. This was the Applicants' position which was not disputed by the Council. However, to fall within the definition of "farm building" in the LEP, the building must be ancillary to an agricultural use of the land carried on "for commercial purposes" - see the definitions of "agriculture" and "extensive agriculture" in the LEP. In the present case, Ms Walker, in her oral evidence, indicated that she is currently keeping 24 alpacas on the Site. She expressly denied that the alpacas were being kept for commercial purposes and said that, after shearing, the alpaca wool is given away. Given the conclusion I have come to, and the position taken by the Council on the issue of permissibility, it is unnecessary and perhaps inappropriate for me to make a final determination about permissibility. It does, however, seem to me that there is some room for doubt about whether the evidence establishes that the Shed will be ancillary to any commercial agricultural use of the land.
I accept the Applicants' submission that the fact that the Shed was erected unlawfully does not, of itself, preclude the grant of development consent to the use of the Shed as a farm building. The issue of the relevance of past unlawful conduct to determining whether a development consent should be granted has been considered in a number of Court decisions in the past. The Courts have consistently held that past unlawful conduct is not a relevant factor: see Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 per Preston CJ at [19] to [33].
However, while the fact that the Shed was erected unlawfully does not preclude the grant of development consent, I have found that it would be inappropriate to grant consent to the use of the Shed unless and until a building information certificate has been issued that regularises the breach of the planning law.
The Council gave the Applicants a Demolish and Restore Works Order on 16 December 2021 requiring the Applicants to demolish the Shed and remove the mound of fill on which the Shed has been constructed. The Applicants have not complied with the terms of the order and have not appealed against the giving of the order. It would be open to the Applicants to apply for the issue of a building information certificate under Div 6.7 of the EPA Act in relation to the Shed, but they have not done so. If issued, a building information certificate would, in accordance with s 6.25(3) of the EPA Act, operate to prevent the Council from, amongst other things, taking proceedings for the making of an order or injunction under the EPA Act requiring the Shed to be demolished.
In my view, while the past conduct of the Applicants in erecting the Shed may not preclude the grant of development consent, it would be inappropriate to grant development consent for the use of the Shed in circumstances in which the Shed has been erected without development consent. It is the subject of an order requiring its demolition and removal, and is not the subject of a building information certificate confirming that the Shed is structurally sound and fit for its intended use as a farm building.
In Ireland v Cessnock City Council (1999) 103 LGERA 285; [1999] NSWLEC 153 (Ireland No 1), Bignold J was asked a number of preliminary questions of law in relation to appeals then before the Court for the issue of a building certificate (as certificates of that kind were then known) and development consent for the use of a shed which had been erected without development consent. Having found that it was open to a consent authority to issue a building certificate "to regularise a breach of the planning law" (at [59] and [69]) and that a building certificate should be issued in the proceedings then before the Court, his Honour then considered whether it was possible for development consent to be granted for the use of a building which had been erected unlawfully. His Honour held that, on the assumption that a building certificate had been issued, development consent could be granted for the use of a building the erection of which was unlawful (at [95] and [96]). It seems to me, however, to be implicit in the way his Honour answered that question, that the answer may have been different had the Court not already decided that a building certificate should be issued to the applicant. In this regard I note that in Ireland No 2 (at [37]) his Honour found on the evidence in that matter both that the shed the subject of the application for a building certificate was structurally adequate and also that there was a probability that development consent would have been granted for the erection of the shed had such consent been sought before the building was erected. For reasons I will discuss below, the evidence in this appeal is insufficient to establish that the Shed is structurally adequate. In addition, unlike the situation in Ireland No 2, the grant of development consent for the erection of the Shed, had such an application been made prior to its erection, could not reasonably be described as a probability in the circumstances of this appeal.
With one possible exception discussed below, I have been unable to find any Court decision in which development consent has been granted authorising the use of an unlawfully erected building without a building information certificate having first been issued in relation to the building. My reading of Bignold J's decisions in Ireland No 1 and Ireland No 2, is that he treated the issue of such a certificate as fundamental to the regularisation of the breach of the planning law caused by the unlawful erection of the shed in that case. This is also the basis of what Moore SC (as he then was) described in Griffis v Tweed Shire Council [2011] NSWLEC 1126 (Griffis) at [9] to [10] as the "proper sequence" of assessment, requiring determination of an application for a building information certificate first, before then considering whether development consent should be granted for the future use of the building. That sequence enables a determination to be made about whether the Shed is fit and properly constructed to be used as a farm building.
The possible exception is the decision of Moore AJ (as he had then become) in Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197 (Marshall). In that case his Honour was required to consider a challenge to the validity of two similar development consents for the use of buildings which had been granted subject to a condition requiring a building certificate to be obtained in respect of unauthorised building work prior to the issue of an occupation certificate for each building. His Honour said (at [197] to [198]): "[197] The process that has been followed, conventionally, in such circumstances is that which was discussed by Bignold J in Ireland v Cessnock (1999) NSWLEC 153; 103 LGERA 285. This process involves obtaining a building certificate through the process provided for in s 149D of the Planning Act and making a development application for the use of the structure. This two-step process has, in the ordinary course of events, involved a determination that the structure is fit to be used for the proposed purpose and, once that is established, then consideration is given to whether, having undertaken a conventional planning assessment…, the proposed use of the certified compliant structure should be permitted. [198] In this instance, the Council adopted a different approach to the two steps. The approach adopted was to consider whether or not the use (in this case the temporary use as a "function centre" pursuant to cl 2.8 of the LEP) was acceptable in a planning sense, but to require that a building certificate to guarantee building compliance was obtained prior to the commencement of the use."
The different approach adopted by the Council in Marshall resulted in proceedings being taken challenging the validity of the development consents on the basis that the Council had invalidly deferred a matter that should have been determined prior to the development applications being considered and determined. While Moore AJ dismissed the challenge to the validity of the development consents on this ground, it is apparent that his Honour did not wish to be seen to be encouraging the course taken by the Council in that case, saying (at [209]): "[209] Whilst the process adopted in each Council resolution may be unconventional, and might be regarded by some as not being best practice, nonetheless the protective position that the use of either building as a "function centre" could not lawfully commence until an occupation certificate was obtained and such occupation certificate would not be available until after a building certificate had been obtained achieved the same outcome to practical effect as the process adopted in Ireland."
I also note that, unlike the position here, the Council in Marshall had not issued any orders requiring the demolition of the unauthorised building work the subject of the consents. That, in my view, is sufficient of itself to render the course followed by the Council in Marshall inappropriate in the circumstances of this appeal.
I have considered whether, as the Council submits, it is appropriate to consider a "notional" application for a building information certificate in the determination of the DA. However, I have decided that this course should not be followed in the circumstances of this appeal for two reasons. The first reason is that to do so would effectively reverse the "proper sequence" or "conventional process" described in Ireland, Griffis and Marshall with the result that the breach of the planning law would not be regularised before development consent is granted to the use of the unauthorised building. That seems to me to be highly undesirable. The second reason is that the Court does not have before it sufficient and appropriate evidence to be able to determine that a building information certificate would be issued if an application for such a certificate were to be made.
I have therefore concluded that development consent should not be granted for the future use of the Shed unless and until a building information certificate has been issued which determines that the Shed is structurally sound and fit to be used as a farm building. That determination will, it seems to me, also necessarily involve a determination as to whether the fill on which the Shed has been constructed is suitable for the use to which it has been put.
The Applicants have submitted that the evidence in this appeal establishes that the Shed is sound, safe and stable for its intended purpose and use. They rely on evidence from Mr Buchanan (Ex G) and a builder, Sean Doble whose letter is attached to Ex D and is reproduced at [18] above.
I have indicated at [39] why I have decided that the certificate provided by Mr Buchanan should be given little weight. In my assessment, Mr Buchanan's certificate is inadequate to enable a determination to be made that the Shed is structurally sound and fit for use as a farm building.
While Mr Doble's letter forms part of the Applicants' Statement of Facts and Contentions in Reply (Ex D), it was not tendered as an expert report and does not contain an acknowledgment that the author had, before its preparation, read the code of conduct set out in Sch 7 of the UCPR and agreed to be bound by it, as required by r.31.23 of the UCPR. There is no indication in the letter that Mr Doble understood that the letter would be relied on by the Applicants in this appeal and he was not made available for cross-examination. In those circumstances I am unable to place any weight on the letter for the purpose of determining whether the Shed is structurally sound and fit for use as a farm building.
Given my conclusion that development consent for the use of the Shed should not be granted until a building information certificate has been issued which determines that the Shed is structurally sound and fit for use as a farm building, it is unnecessary for me to resolve many of the other issues that were the subject of evidence and submissions in the appeal. It is also inappropriate for me to make findings on those issues that may arise for determination in connection with any future application for a building information certificate. Those issues should be addressed if and when any such application is made having regard to the evidence then available. I will, however, make some brief observations about some of the other issues raised in this appeal:

I agree with the Applicants that the Council's concerns about the precise uses to which the farm building may be put could be dealt with by the imposition of conditions prohibiting the use of the Shed for residential and business purposes.
The screening of the Shed, in my opinion, is an important issue for the Applicants to address given the location of the Shed in the C4 Environmental Living zone, its location relatively high on the Site and its potential impacts in terms of privacy, visual impacts and light spillage. The proposed landscaping to achieve that screening is not something that, in the circumstances of this application, can appropriately be dealt with as a condition of consent (as proposed by the Applicants). A proper landscaping plan showing the proposed species to be used, their expected size at maturity, and their proposed location is required before any future application for the use of the Shed could be determined.
Issues such as whether the height and size of the Shed are acceptable cannot be satisfactorily resolved without a survey plan that includes information about the depth of the fill. A survey would also enable the side setback of the Shed to be determined accurately.

Conclusion

For the reasons I have set out above, I have decided that development consent should not be granted to the DA unless and until a building information certificate has been issued that determines that the Shed is structurally sound and fit to be used as a farm building. It follows that the appeal should therefore be dismissed.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development Application DA 2021.1060 for development consent to use an existing building located on the land described as Lot 30 DP 747879 known as 159 Fernleigh Drive, Googong for the purpose of a farm building is refused. 3. Exhibits 1, 2, 4, 5, 8, 9, A, B, D, E, F and G are to be retained. Exhibits 3, 6, 7, 10, C, H, and J are returned.

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. Decision last updated: 31 January 2023

(1999) 103 LGERA 285

(1999) 110 LGERA 311

(2006) 144 LGERA 408

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