Land and Environment Court of New South Wales CITATION : Wallace v Queanbeyan City Council [2009] NSWLEC 1045 APPLICANT Stephen Donelly Wallace PARTIES : RESPONDENT Queanbeyan City Council FILE NUMBER(S) : 10499 of 2008 CORAM: Hoffman C KEY ISSUES: SECTION 121B ORDER :- Rural dwelling house and ancillary shed. Area and bulk of shed exceeds Development Control Plan provisions, retention of the rural landscape visual dominance over buildings, deterrent to unsuitable uses in oversized sheds in a rural residential zone. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Yarralumla Local Environmental Plan 2002 DATES OF HEARING: 29/01/2009 EX TEMPORE JUDGMENT DATE : 29 January 2009 APPLICANT Mr S. Wallace, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Herring, solicitor of Herring Associates & Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 29 January 2009 10499 of 2008 Stephen Donelly Wallace v Queanbeyan City Council JUDGMENT 1 This is an appeal No 10499 of 2008 between Wallace and Queanbeyan City Council in regard to an order issued under s 121B of the Environmental Planning and Assessment Act 1979, to require compliance with conditions 5 and 6 of development consent 500/2005 issued by the council on 18 September 2006 for a rural dwelling house and ancillary shed at No 32 Thoroughbred Drive, Royalla. This hearing follows an unsuccessful s 34 conciliation conference under the Land and Environment Court Act 1979 where the parties could not agree. 2 The Royalla subdivision was formerly a rural farm that has been subdivided over the past 20 years into Rural Residential lots zoned 1 (d) under the Yarralumla Local Environmental Plan 2002. During an amalgamation of local government authorities since then part of the Royalla subdivision has become Queanbeyan and another part the Palerang Shire. 3 The subject land is in Queanbeyan and is a 10 acre lot at one entry to the subdivision off Old Cooma Road. As one turns off Old Cooma Road into Thoroughbred Drive, for a short distance if one takes one's eyes off the road, the site can be seen uphill. The dwelling house is under construction and the shed was built, according to the applicant, as a necessary security store and garage and temporary accommodation precursor to the house. 4 The house and shed were approved in the consent however, conditions 5 and 6 required the shed to be reduced in size by annotation in red on the approved plans and by conditions so that the shed would have dimensions of 20 metres by 13.5 metres. The applicant built the shed to the size of the plans in the DA, namely, 20 metres by 18 metres. 5 The respondent's evidence was heard from Mr P Reynders, compliance town planner for the council. The applicant's evidence was heard from Mr S D Wallace, who represented himself. A brief summary of the circumstances of this case is: (a) Mr Wallace has two trucks with trailers and they are just short of 20 metres long. He needs a shed 20 metres long to house them. (b) Being a small rural residential lot the applicable Yarralumla Development Control Plan 1992 allows the garaging of two trucks with trailers and plant and domestic vehicles without consent, However, consent to erect a shed is needed and was duly obtained. (c) However, the shed conditions of consent reduced the size of the shed from 360 square metres to 270 square metres by deleting the north side bay of the 3-bayed building. The design of the shed is in the form of a traditional barn with a central gabled roof running the length of the building. This bay is nine metres wide and can house the two trucks with their trailers so they drive in one end and out the other. The north and south bays have skillion roofs pitched down to the outside from the central gable. The north bay houses a temporary residence for the Wallaces in a 13.5 metre length and in the remaining 6.5 metres a caravan and rural slashing equipment. The south bay houses various plant and equipment, some to do with the rural property and some to do with the trucks. It also houses 2 cars. (d) Mr Wallace said deleting the north side bay would remove the temporary residence that is permitted also by the development consent. The temporary residence is required to be removed within 12 months after the commencement of the dwelling house. In Canberra the north side of a building is the warm side for weather and is the appropriate side for accommodation versus the cold south side. Also, Mr Wallace said he could not securely store his furniture and equipment for the new house if the bay is deleted. (e) He felt he had been honest with the council in telling of his essential needs and the shed is only just big enough for those needs. (f) The council had considered this but required compliance with the 300 square metre maximum shed size permitted in the Development Control Plan. The council had allowed for a height exceedence above the 4 metre height limit in order that the door for the trucks could be high enough. The ridge of the roof is at 5.7 metres but in compensation Mr Reynders and the council required the floor area reduction of the building. (g) Due to the lack of any amended plans for the shed from the applicant during negotiations prior to the development consent, Mr Reynders chose to recommend approval of the house and shed with the amendments in red. (h) After the consent was granted Mr Wallace built the shed to his original plan and says in defence of that there are other sheds of the same size or larger in Royalla. Some of them have been constructed without council consent or not in compliance with any consent. His shed is low on the hillside and although seen from one part of Thoroughbred Drive referred to previously it is not seen from elsewhere. The shed is screened by topography and the house on his property from public view except from the one location previously referred to. (i) His trucks come and go quietly and do not disturb neighbours. There have been no objections from any neighbours. (j) The garaging of the trucks is not a truck depot as defined in the statute and controls. (k) Removing the north bay would make the building lopsided and ugly instead of the traditional barn form. (l) Alternate plans would not provide his essential needs. (m) The council conditions actually cut the building back to 270 square metres in area when he needs 360 square metres and 300 square metres is the permissible size. The council in correspondence had indicated that it would accept a 10% increase of the 300 square metre maximum size up to 330 square metres. (n) In Mr Wallace's opinion there are no significant impacts from keeping the shed as is. 6 On inspection of the site the shed is kept clean and tidy and is full of the two vehicles and the plant and equipment and the temporary residence previously mentioned. 7 Mr Reynders in giving his evidence indicated a number of times he sought amended plans for the shed and none arrived at the council. The applicant refused a suggestion to approve the house separately to the shed and deal with the non-compliances of the shed through another development application. As a result, Mr Reynders was obliged to consider both in the one application, one option being to refuse the application altogether. 8 He said, the council, in the end waived the 4 metre height limit in favour of the applicant and the additional height was compensated for by the deletion of building bulk in the other location. 9 The underlying reason for the controls on size and height was, according to his opinion, to limit the size of sheds in a rural residential landscape. And by preventing large sheds it deterred people from unsuitable uses in the rural residential area such as industrial or commercial. 10 In this case Mr Reynders agreed the shed is low on the hillside, but there is another large shed adjacent on another property higher on the hill, so he felt the conditions were reasonable to retain the visual dominance of the landscape over the buildings. 11 I asked about landscape screening on the approved plans. Mr Reynders showed me red markings on the plans that add a screen of trees and shrubs on the west side of the shed that would soften any view of it from the Old Cooma Road or Thoroughbred Drive locations. Other tree and shrub landscaping would provide softening to the house and add to the rural landscape setting. 12 Mr Wallace said he had planted $1000 worth of trees and shrubs during the recent Australia Day long weekend and the house is nearly to lock-up. Mr Wallace said the council had offered to permit the shed with a 330 square metre area at one stage to resolve the dispute. He had not accepted that as it meant taking 1.6 metres off the entire width of the building which would have meant the trucks would not fit or, as an alternative, taking 6.5 metres off either the north or the south bays of the building. Since the shed is full he had nowhere to put any displaced items. 13 It occurred to me that once the house is built his two cars can be garaged in the garage being built there and the furniture would go into the house. Also, the temporary accommodation is required by condition 9 to be removed from the shed so it would create extra space for plant and equipment. The area created by the removed accommodation would be approximately 13.5 metres by 4.5 metres plus the space currently used by the cars. 14 Overall there appeared to be a deal of misunderstanding or miscommunication or a failure to understand communication between the parties. There is the consideration of the merits of the impacts of reducing the size of the shed or leaving it as is under the provisions of zone 1 (d) objectives in cl 10(2)(c), (e) and (j) of the Yarralumla Local Environmental Plan 2002. 15 It seems to me Mr Reynders' evidence about the landscape screening and the low prominence of the building in the rural scene in any case renders cls 10(2)(e) and (j) as having been adequately complied with. The conditions in any case require landscaping to be completed before the occupation of the house and to be maintained thereafter, therefore ensuring that appropriate softening of the architectural form will occur. 16 In regard to cl 10 (2) (c) it seems to me the council no longer contests the fact that the statutory provisions and controls do allow the garaging of two trucks with their trailers and plant and equipment and domestic vehicles on the site. Therefore the use of the site is compatible with the rural residential amenity. As Mr Wallace pointed out, noise from heavy trucks on the nearby Old Cooma Road and children's and teenagers' motor bikes within the subdivision creates much more noise nuisance than his two trucks idling in and out. The trucks have no mechanical repairs done on site and do not bring materials home in their trays. Also, being garaged, there is no visual impact on the rural scenery of parked heavy vehicles. 17 There is, however, in this matter the public interest in upholding the duly adopted Development Control Plan controls that the council has subject to an an extensive process of public exhibition and adoption for the reasons Mr Reynders mentioned, namely, scenic protection and the prevention of rural industries and unacceptable uses within the rural residential area. I do not believe the control is in conflict with the Local Environmental Plan. 18 I put to the parties one of the options discussed on site, namely, deleting 6.5 metres of the north or the south bay, allowing the time to do that being six months from the date of completion and occupation of the house. 19 The powers of the Court in such an appeal as this enable me to substitute an order for those issued by the council that would maintain the integrity of the council controls and enable the Wallaces to complete their house and then bring the shed into reasonable compliance, namely, the 330 square metres or 10% variation of the Development Control Plan control that the council had indicated at one stage would be acceptable. 20 Therefore, the orders of the Court are: 1. The order issued under s 121B, order No 15 of the Environmental Planning and Assessment Act 1979 dated 21 April 2008 is modified by the deletion of the words under the headings Terms of Order , Period for Compliance with Order and Reason for Order and the insertion in lieu of the following. "Terms of Order: The south-east corner of the southernmost of the three bays of the existing rural shed on Lot 40 DP 1056538 known as No 32 Thoroughbred Drive, Royalla shall be removed as follows: (a) A 6.5 metre length of the southern bay starting at the south-east corner shall be removed to bring the internal area of the shed to approximately 330 square metres. The concrete floor slab may remain in place. (b) The exposed walls for the remaining shed are to be re-clad and enclosed with matching materials in type and colour to the rest of the shed. Period for Compliance with the Order: The demolition and re-cladding work on the shed shall be completed within six months of the occupation of the dwelling house approved in development consent 500/2005 issued on 18 September 2006. Reason for the Order: To provide sufficient compliance with conditions 5 and 6 of development consent 500/2005 issued on 18 September 2006 such that no further change to the shed is necessary." (2) The exhibits are returned to the parties except exhibits 5 and A. _________________________ K G Hoffman Commissioner of the Court ljr 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.