Land and Environment Court of New South Wales CITATION : Sheargold v Baulkham Hills Shire Council [2009] NSWLEC 1294 APPLICANT Paula Sheargold PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10439 of 2009 CORAM: Pearson C KEY ISSUES: SECTION 121B ORDER :- An awning/carport structure erected without development consent Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005 Baulkham Hills Shire Council Development Control Plan Kellyville/Rouse Hill Release Area Part E Section 15 DATES OF HEARING: 25 August 2009 EX TEMPORE JUDGMENT DATE : 29 August 2009 APPLICANT Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr C Winn, solicitor The Hills Shire Council JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pearson C 25 August 2009 10439 of 2009 Paula Sheargold v Baulkham Hills Shire Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This appeal arises from an order made under s 121B of the Environmental Planning and Assessment Act 1979 (the Act) on 4 June 2009 in respect of an awning/carport structure erected at 2 Lightwood Way Beaumont Hills (being lot 427 Deposited Plan 1015685). The basis for the order was that the structure had been erected without development consent where such consent was required under the relevant local environmental plan, being Baulkham Hills Local Environmental Plan 2005, and secondly that the structure did not comply with the requirements of the Baulkham Hills Shire Council's Development Control Plan Part E Section 15 Kellyville/Rouse Hill Release Area (September 2007). Clause 2.4 in Part E Section 15 of that Development Control Plan establishes a minimum setback of 2.0 metres for secondary street frontages. 2 The applicant lodged an appeal to the Court under s 121ZK of the Act on 2 July 2009. There have been further discussions between the applicant and the council, culminating in the application today for the making of consent orders. The Baulkham Hills Local Environmental Plan 2005 (the LEP) applies to the site, which is zoned 2(a) Residential. Development consent is required for additions and alterations to existing dwelling houses. The LEP defines "additions and alterations" to mean "additions or alterations to a lawfully erected dwelling house, including garages, swimming pools, and outbuildings, or structures incidental to a dwelling house". The building setback requirement under the Development Control Plan as noted is 2.0 metres for a secondary street frontage, in this instance Forest Crescent. Part 3.4 Setbacks in the Development Control Plan provides the following objectives: (iii) to provide visual separation of built forms, privacy and opportunities for landscaping, (iv) to protect sunlight and daylight to habitable rooms, protect and optimise usable open space around buildings, and protect adjoining buildings from excessive overlooking, overshadowing, and general loss of amenity, (v) to provide sufficient space for vehicle parking, manoeuvrability, and clear sight lines, (vi) to provide a usable area of private open space to the rear of a dwelling. 3 The order was issued following investigation arising from an anonymous complaint made to the council. 4 The two central issues for the council are compliance with the 2.0 metre setback and the visual impact on the streetscape. As part of the discussions between the council and the applicant, local residents have been consulted and the evidence before me is that there are no outstanding objections or concerns raised by local residents. There is a survey report, which indicates that the fence along the frontage to Forest Crescent encroaches on the council's street verge to a minimal extent, and the council has raised no issue in that regard. The awning/carport structure is within the boundaries of the applicant's property. There is additional evidence that an engineering certification has been provided showing that the existing structure is structurally sound. 5 In order to address the council's concern with the visual impact on the streetscape, the applicant has planted six Blueberry Ash plants along the fence line which fronts Forest Crescent, and one of the conditions in the proposed consent orders requires the applicant to maintain that planting at no cost to the council. There is also some additional work to be done relating to the appropriate collection of stormwater from the structure, and this work forms part of the proposed consent orders. 6 Having regard to the objectives of the Development Control Plan and the steps taken by the applicant to minimise visual impact on the streetscape through the planting that has been undertaken, I am satisfied that the objectives of the Development Control Plan are met. In relation to the issue of the requirement for development consent, the evidence before me establishes that while consent was not obtained and thus there is a breach of the requirements of the Act, the awning and carport structure is structurally sound; that appropriate arrangements have been made or are in the course of being made to ensure proper drainage of stormwater; and that the structure itself does not encroach on council land. 7 In those circumstances, I accept that it is appropriate for the consent orders to be made. Orders The Court makes the following consent orders. 1. The order dated 4 June 2009 issued to the applicant pursuant to s 121B of the Environmental Planning and Assessment Act may be varied as follows. The existing metal awning carport structure at the property known as 2 Lightwood Way, Beaumont Hills (the property) be permitted to remain on the property provided the following occurs: a) The applicant supplies to the council written certification from a suitably qualified engineer attesting to the structural soundness of the metal awning carport and any other ancillary items; b) The applicant supplies to the council a survey confirming that there are no encroachments of the metal awning extending beyond the property boundary or onto or over council land (being the secondary road at Forest Crescent); c) The applicant plant and maintain at no cost to the council Blueberry Ash trees along the secondary street frontage being Forest Crescent; d) The downpipes collecting stormwater from the metal awning carport be piped and connected to the street in accordance with council's guidelines. 3. The applicant is to provide to council documentation/evidence referred to in the previous order within twenty-eight days of the date of this order. 4. No order as to costs. 5. Exhibits are to be returned. ___________________ Linda Pearson 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.