Land and Environment Court of New South Wales CITATION : Sturzaker v Queanbeyan City Council [2009] NSWLEC 1412 APPLICANT Laurie Sturzaker and Patricia Sturzaker PARTIES : RESPONDENT Queanbeyan City Council FILE NUMBER(S) : 10519 of 2009 CORAM: Brown C KEY ISSUES: BUILDING CERTIFICATE :- shed erected without development consent - whether Building Certificate should be issued LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environmental Plan 2002 DATES OF HEARING: 7 December 2009 EX TEMPORE JUDGMENT DATE : 7 December 2009 APPLICANT Mr P Herrald, solicitor SOLICITORS Jack C Herrald Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr A Herring, solicitor SOLICITORS Herring & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 7 December 2009 10519 of 2009 Laurie Sturzaker and Patricia Sturzaker v Queanbeyan City Council JUDGMENT 1 COMMISSIONER: This is an appeal under s 149F of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Queanbeyan City Council (the council) to issue a Building Certificate for a shed constructed at 1126 Old Cooma Road, Googong (the site). 2 The shed has an area of 144 sq m and is approximately 5 m in height and is open on its southern and eastern sides. The eastern side is used for access to the shed. It is described by the applicant has an "open car and tractor shed". At the time of the hearing, the shed was used for this parking of a truck and boat. 3 The appeal was conducted as an On-Site Hearing on 7 December 2009 and the judgement reflects the documentation provided with the appeal and the reasons given to the parties in the determination of the appeal. Relevant planning controls 4 The site is within Zone No 1(d)(Rural Residential Zone) under Yarrowlumla Local Environmental Plan 2002 (LEP 2002). The erection of a shed would be permissible if ancillary to the rural residential use of the site (and subject to other planning controls) or through cl 11(2) of LEP 2002 that states: 2) Consent may also be granted for land uses not specifically identified in the Table, if the use is consistent, in the consent authority's opinion, with the objectives of this plan and the objectives of the zone within which the land on which the use will be carried out is situated. 5 Clause 3(2) provides objectives for the plan and cl 10(2) provides objectives for the 1(d)(Rural Residential Zone). 6 Yarrowlumla Development Control Plan Rural and Rural Residential Zones Applying to the Queanbeyan City Council Area (the DCP) applies from 23 September 2008. Clause 33 of the DCP provides specific requirements for sheds. The clause provides the following relevant aim and objective: To enable the erection of sheds on rural properties within the Queanbeyan City Council area in a manner which complements the rural character and residential scale of the landscape and has minimal impact on the scenic qualities of the area. 7 Clause 33 provides specific requirements for Siting and Earthworks, Size and Height. For Siting and Earthworks, the relevant objective is "to integrate sheds with the landscape and existing development so that they complement the rural character of an area and are not visually dominant". The relevant objective states that "sheds shall not be visually prominent or intrude into the skyline". Other controls are provided for setbacks and relationship with any existing dwelling although there was no dispute that the proposed shed satisfies these requirements. 8 In relation to Size, the aims are "to control the number and size of sheds so as to minimise the visual dominance in the landscape" (aim (a)) and " to reduce the number of large sheds" (aim (b)). The specific requirements for the zone provide that the total cumulative floor area of all sheds on any one property shall not exceed 300 sq m. The shed does not satisfy this requirement, as there is an existing shed on the property (directly adjoining but not attached to the shed the subject of these proceedings) with an area of 288 sq m. 9 The aim of the Height requirement is "to control the height of sheds so as to minimise their dominance and bulk in the landscape" and the objective is that "sheds shall not dominate the landscape due to the bulk of the buildings or intrude into the skyline". The specific requirement for height is that no more than 50% of the roof is to exceed 4 m in height. The shed does not satisfy this requirement, having a height of around 5 m. The assessment framework 10 Section 149D(1) of the EPA Act provides: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 : (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. The council's position 11 The council maintains that refusal of the Building Certificate for the shed could be justified on the basis of s 149D(1)(a) because the shed breaches the DCP requirements for size and height and that in exercise of reasonable care and skill it could order the building to be demolished. The council argues that while the issue of the visual dominance is not necessarily a determinative matter, the cumulative size of the sheds on the site is likely to encourage the use of the sheds for commercial or industrial purposes that would be inconsistent with the objectives of the 1(d)(Rural Residential Zone). Past activities on the site by the applicant support such a conclusion. The applicant's position 12 By way of an affidavit sworn by the applicant on 11 November 2009, the applicant states that previous proceedings in the Land and Environment Court (Laurie Sturzaker and Patricia Sturzaker v Queanbeyan City Council, Appeal No 10700 of 2007, 25 January 2008) addressed the issue of the shed erected without development consent and the use of the property for an earthmoving business. These proceedings were finalised by the parties entering into consent orders. It was his understanding that the separation of the existing shed into two sheds, that is, the 288 sq m shed and the 144 sq m shed addressed council's concerns and that there was no requirements for the aggregation of the areas of the two sheds, based on the requirements of Yarrowlumla Development Control Plan 2002 that applied at the time, even though the 300 sq m requirement still applied. Findings 13 The Court has a wide discretion in determining this matter. Section 149F(3) of the EPA Act provides: ( 3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 14 With the benefit of the site view and an understanding of the council's planning controls that relate to sheds, I am satisfied that there is no reasonable basis to require the shed to be demolished. In the words of s 149D(1)(i), there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under the EPA Act to order the building to be demolished. The size and height requirements are not development standards and while these DCP requirements have to be given full and genuine consideration, the variations to the DCP requirements can be supported if tested against the objectives of the particular requirements. A consistent theme running through the DCP requirements for sheds is the need to ensure that any sheds are not visually dominant and adversely impact on the character of the rural locality. In this case, the shed is located some 250 m from Old Cooma Road and is fully screened from this road by existing vegetation and other features on the site. It is partially cut into an existing hillside and does not breach the skyline. I also did not understand the shed to be overly visible from any adjoining property. In my view, the shed, notwithstanding the variations to the DCP area and height requirements, does not offend any aims or objectives in the DCP or any plan or zone objectives. 15 The concerns raised by the council that the size of the shed, when combined with other sheds on the property, would encourage commercial or industrial uses must be given no weight. The proceedings deal with the question of whether a Building Certificate should be issued for the shed erected without development consent. It does not necessarily follow that sheds with a combined area of greater than 300 sq m would be used or would even encourage a use that may potentially be prohibited within the zoning. If this does occur, then there are options available to the council to address this through other proceedings. 16 These proceedings are limited to whether a Building Certificate should be issued and for the reasons mentioned in the preceding paragraphs there is no reason why the Court should not direct the council to issue a Building Certificate for the shed. Orders 17 The Orders of the Court are: 1. The appeal is upheld. 2. The council is directed to issue a Building Certificate for the shed with an area of 144 sq m constructed at 1126 Old Cooma Road, Googong by 15 January 2010. _____________ 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.