Van der Zypp & Ors v Murray Shire Council [2010] NSWLEC 1242

Land and Environment Court of New South Wales

CITATION : Van der Zypp & Ors v Murray Shire Council [2010] NSWLEC 1242

APPLICANTS Michael van der Zypp Diane van der Zypp PARTIES : Neil Greaves

RESPONDENT Murray Shire Council

FILE NUMBER(S) : 10316 of 2010

CORAM: Pearson C

KEY ISSUES: SECTION 121B ORDER :-

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards LEGISLATION CITED: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Murray Regional Environmental Plan No 2 - Riverine Land Murray Local Environmental Plan 1989 Murray Development Control Plan

CASES CITED: KSK Developments Pty Ltd v Murray Shire Council

DATES OF HEARING: 19 August 2010

DATE OF JUDGMENT: 31 August 2010

APPLICANTS Michael van der Zypp LEGAL REPRESENTATIVES: Elisabeth Ulrich (agent) RESPONDENT Matthew Rogers, solicitor Kell Moore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

31 August 2010

10316 of 2010 Michael van der Zypp, Diane van der Zypp and Neil Greaves v Murray Shire Council

JUDGMENT 1 Commissioner: This is an appeal under s121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an order issued by Murray Shire Council (the Council) under s121B of the Act in relation to a structure on land at 93 Goldsborough Road Moama, lot 7 in DP 252159 (the site). 2 The Order was issued on 26 March 2010 and directed the applicants as owners of the site: To demolish or remove the two storey building (as detailed in Schedule 1) as such were erected without the prior Development Consent and Construction certificate from the relevant consent authority. 3 Schedule 1 provided: Works Required To demolish the two storey building clad in grey/blue colourbond that is positioned between the dwelling/inground pool and the Murray River. A picture of the illegal structure to be removed is shown below. 4 The photograph is annexed to these reasons. 5 Section 121ZK(4) confers the following powers on the Court: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. The site and the structure 6 The site is located adjacent to the Murray River, and has an area of 10.3ha. There is an existing dwelling on the site used for bed and breakfast accommodation. There is a swimming pool between the dwelling and the river, and a concrete slab for the proposed erection of a games room to the south west of the dwelling. 7 The parties prepared an Agreed Statement of Facts which includes a detailed description of the structure and its location. The structure is located approximately 17m from the identifiable high bank of the Murray River (measured 90 degrees to the structure) or 12.5m (measured 45 degrees to the structure). The structure is located approximately 47.6m from the existing dwelling and 8.020m from the adjoining property boundary. 8 The structure is approximately 5.15m high at its highest point, being the front of the structure on its northern face, and 4.6m at the rear. The ground floor has a height of 2.35m and the first storey a height of 2.8m. The structure is 5.385m long and 4.185m wide. The structure is clad in blue/grey colourbond corrugated iron. The western wall is entirely enclosed in colourbond cladding. The eastern wall consists of a glass sliding door providing access to the ground floor, and the first floor is clad with colourbond. The southern wall is a combination of colourbond cladding and fixed glass windows along the length of each floor. The northern face has fixed glass windows installed on the ground floor; the first floor has a glass sliding door positioned centrally and two smaller windows. There is a verandah on the northern side accessed by timber stairs along the eastern side of the structure. 9 Internally, the ground floor has timber framed walls and a concrete floor. The first floor is clad with gyprock. The eastern wall, and a section of the floor adjoining it, are tiled, and installed on the tiled floor is a bath, a toilet, and a vanity basin.