Soren Holm & Anor v Hornsby Shire Council [2009] NSWLEC 1074

Land and Environment Court of New South Wales

CITATION : Soren Holm & Anor v Hornsby Shire Council [2009] NSWLEC 1074 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Soren Holm & Anor PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 10035 of 2009, 10656 of 2008, 10814 of 2008, 10815 ; of 2008

CORAM: Bly C

KEY ISSUES: BUILDING CERTIFICATE - DEVELOPMENT APPLICATION - MODIFICATION APPLICATION :- Demolition Order

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan

DATES OF HEARING: 09/03/2009 and 10/03/2009

DATE OF JUDGMENT: 10 March 2009

APPLICANT Ms S. Duggan, barrister Instructed by: Hones La Hood LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Clay, barrister Instructed by Storey and Gough

JUDGMENT: - 19 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

10 March 2009

10035 of 2009 Soren Holm & Anor v Hornsby Shire 10656 of 2008 Council 10814 of 2008 10815 of 2008

JUDGMENT 1 These four appeals involve lot 1 DP 556129 being 1431-1433 Old Northern Road, Glenorie. The 2.1 ha property is presently used for residential, agricultural, home industry and associated uses. The appeals are as follows: · 10815 of 2008: development application for a new front fence, internal alterations to certain existing buildings, installation of underground rainwater tanks, installation of solar panels, use of buildings and the demolition/removal of buildings. · 10035 of 2009: modification application to amend existing consent for the conversion of a rural workers dwelling into staff amenities for workers associated with agricultural activities. · 10814 of 2008: application for building certificate for three existing buildings. · 10656 of 2008: demolition order for several existing unauthorised buildings. 2 The site is zoned Rural BA (Small Holdings-Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan and in this zone the existing land uses and the proposed works are either permissible or permissible with development consent. 3 The essential issues in dispute in relation to these matters involve · Whether the design of the proposed front fence and existing gate structure would be appropriate in this rural locality. · Whether size, appearance and character of several of the existing large sheds on the site would be appropriate in this rural locality. · Whether the arrangements for on-site treatment and disposal of effluent are satisfactory. · Whether the industrial use complies with the definition of home industry in the LEP. · Whether there would be unreasonable noise impacts on neighbouring properties. · Whether the arrangements for stormwater through and within the site satisfactory taking into account the existence of a stormwater easement in favour of the council. 4 When the hearing began on-site I had the opportunity of hearing from the parties' experts (waste water, stormwater, geotechnical acoustic and town planning). I also have the opportunity of reading their reports and other materials on the Court's files including the various statement of facts and contentions and statements of environmental effects. 5 I also heard from a neighbour/objector who explained his concerns in relation to stormwater discharges that might affect his property as well as dust and noise emissions. 6 Following the site inspection the applicant made a number of modifications to the development and now agrees to a number of conditions including deferred commencement conditions such that the parties have now entered into consent orders. 7 Taking into account the evidence of the experts and having inspected the site in the company of the advocates, the experts and the concerned neighbour and having inspected the locality with the agreement of the parties and there being no remaining matters in dispute I have decided to make the orders as sought. Orders 8 For matter 10815 of 2008, by consent the Court orders that: 1. The appeal be upheld; 2. Development consent is granted for: a new front fence; internal alterations to buildings 14 and 4; installation of underground rainwater tanks; installation of solar panels; use of buildings; and demolition/removal of buildings. on Lot 1 DP 556129 being Numbers 1431 -1433 Old Northern Road Glenorie subject to the conditions in annexure A hereto. 3. The Applicant is to pay the Council's costs of proceedings 10034 and 10035 of 2009, 10814 and 10815 of 2008 and 10656 of 2008 agreed in the amount $8,000 within 3 months of the date of this order. 4. Exhibit A is retained. 9 For matter 10035 of 2009, by consent the Court orders that: 1. The appeal be upheld; 2. Development consent DA 484/88 be modified in accordance with s.96(1A) of the Environmental Planning and Assessment Act in accordance with the conditions in annexure A hereto. 10 For matter 10656 of 2008 by consent the Court orders that: 1. The Appeal be upheld; 2. The order issued by the Respondent and directed to the Applicant dated 25 June 2008 is hereby revoked. 3. The Court notes that the proceedings were resolved on the basis of the Applicant agreeing to undertake certain work in connection with the subject matter of the order. 11 For matter 10814 of 2008, by consent the Court orders that: 1. The appeal be upheld; 2. The Council is directed to issue a building certificate for the buildings identified on drawing number 942-08-DA01 sheet 1 amendment C March 09 as buildings 4, 7 and 14 subject to completion of the following works within a period of 9 months : a. demolition of building 12 including the slab; b. the internal works to building 1 as identified on drawing number 942-08-DA01 amendment A 4 March 09 sheet 1; c. the demolition of the rear portion of building 14 including the slab and the carrying out of the internal works as shown on drawing number 942-08-DA01 amendment C March 09 sheet 2; d. the internal works to building 4 as identified on drawing number 942-08-DA01 amendment B March 09 sheet 3; e. the completion of the drainage works as identified on drawing number 4638-CATCH_A (sheets 2 and 3); f. the Positive Covenant created pursuant to s88B Conveyancing Act by the registration of Deposited Plan 647739 to be amended at the cost of the Applicant as follows: i. by adding to sub-clause (b) on sheet 3 of 6 sheets the words: It is also imposed because the proprietor of the lot burdened has constructed a pipe within the Easement site without the consent of the Authority benefited ("the Pipe"). ii. by adding sub-clauses (i) and (j): (i) The Owner will at the Owner's cost regularly inspect and to maintain the Pipe in good and sound condition capable of conveying the water flowing into it along the Easement site. Without limiting the generality of the foregoing if the Pipe is damaged the Owner will forthwith repair the damage to the reasonable satisfaction of the Authority benefited. (j) In the event of the Pipe failing for any reason whatsoever the Owner shall indemnify and keep indemnified the Authority burdened against any liability for damage as a result thereof. The parties shall do all things necessary to give effect to this condition.