Land and Environment Court New South Wales Medium Neutral Citation: Elbaf & Anor v Campbelltown City Council [2014] NSWLEC 1074 Hearing dates: 14 - 15 April 2014 Decision date: 29 April 2014 Jurisdiction: Class 1 Before: Morris C Decision: In matter No 10969 of 2013 (a)The appeal is dismissed. (b)The application for a Building Certificate for those works at Lot 1 DP 1039153 Zouch Road, Ingleburn included in the application to Campbelltown City Council reference 957/2013/BC-UW dated 6 May 2013 is refused. In matter No 10970 of 2013 (a)The appeal is dismissed. (b)Development Application 879/2013 for the construction of a two storey dwelling at Lot 1 DP 1039153 Zouch Road, Ingleburn is determined by the refusal of development consent. Catchwords: Development application for completion of partially completed building; whether a dwelling; siting of structure in relation to setback requirements; Building Certificate Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Local Government Act 1993; State Environmental Planning Policy (Major Development) 2005 Edmondson Park South; Campbelltown (Urban Area) Local Environmental Plan 2002; Environmental Planning and Assessment Regulation 2000; Civil Procedure Act 2005 Cases Cited: Dobrohotoff v Bennic [2013] NSWLEC 61; Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094 Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2013; Development Control Plan 49 - Rural Environmental Protection Subdivision and Dwelling Policy Category: Principal judgment Parties: Abdulhalim Elbaf Amne Elbaf (Applicants) Campbelltown City Council (Respondent) Representation: Mr J Lazarus (Applicants) Mr J Burrell Burrell Solicitors (Applicants) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10969 of 2013 10970 of 2013 Judgment 1These are two appeals that relate to structures that have been constructed at Lot 1 DP 1039153 Zouch Road, Ingleburn. The parties agree that the matters are to be heard together, with evidence in one to be available as the evidence of the other. 2Matter Number 10969 of 2013 is an appeal under s149F of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of an application for a building certificate for the structures as built on the land. 3Matter Number 10970 of 2013 is an appeal under s 97(1) of the EPA Act heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act) against Campbelltown Council's actual refusal of a development application for the completion of a partly built structure and use of the completed building as a dwelling. No resolution was reached during the conciliation phase and the matter proceeded directly to hearing. Background and the proposals 4The applicants have partly constructed a dwelling with outbuilding on the site relying on a Complying Development Certificate (CDC) issued by a private certifier on 13 December 2012. 5Campbelltown Council (council) gave an order to the applicants to cease work on the basis that the CDC was alleged to be invalid. The validity of the CDC is the subject of Class 4 proceedings to this Court. Those proceedings are listed for hearing in June 2014. 6In response to the order, the applicants lodged Development Application 879/2013 on 22 April seeking approval for the construction of a two storey dwelling and outbuilding. The plans lodged with the application did not reflect the works identified in the CDC and involved a two storey dwelling rather than a single storey structure and a different outbuilding, now incorporating a lower level storeroom area rather than a single storey structure. The outbuilding shown on the CDC plans incorporated a large room described as "outbuilding" and a one bedroom "granny flat". 7The council refused consent on 25 June 2013. The applicants sought a review of that determination under s82A of the EPA Act. That review was considered by the Full Council at its meeting of 15 October 2013 when it confirmed the original decision to refuse consent. 8The plans that were the subject of the 82A review are the plans before the Court. Those plans reflect the extent of works as built, the works proposed to complete the development and include additional work to connect the outbuilding to the main dwelling. Retaining walls that have been constructed along the site's northern boundary and to the south and east of the building are also shown on the plans. 9The application for a building certificate applied to that work shown on the "Works as built" plans, part of Exhibit A. The council has deferred consideration of the building certificate application pending determination of the development application. 10The works proposed involve the completion of the structure and its use as a two storey dwelling. The lower level of what was originally the single storey dwelling as shown on the CDC plans, would contain a large subfloor area and a storage room, two bathrooms, two bedrooms, bar room and a rumpus room. The upper floor would contain a double garage, a further three bedrooms, study, family room, formal living and dining rooms, lounge, family dining, kitchen and a covered outdoor living area, ensuite, two toilet rooms, laundry and a bathroom. 11The ensuite and laundry, whilst constructed at the same level as the upper level to the main structure, would connect to the original outbuilding. A hall and stairway separate those rooms and provide a link to the remainder of the dwelling that is to be constructed in what was the outbuilding/granny flat shown on the CDC plans. That area would contain a storage room on the lower level and three bedrooms, two bathrooms, one of which incorporates laundry facilities, lounge room, dining and kitchen on the upper level accessed both through the aforementioned hallway/stairway and a separate entry foyer with stairs from a formal courtyard to be constructed on the south eastern portion of the platform that has been formed by the retaining walls described at [8]. 12A brick fence with metal infills is proposed across the Zouch Street frontage of the site. The height of that fence varies however is approximately 2m stepping down the site. It is also proposed to increase the height of the existing wall that retains an area that has been cut into the site on its northern boundary. That wall, according to the evidence, is 100mm off the common boundary with an adjoining public reserve. There is no evidence that any drainage has been installed along the wall. 13The application is for the use of the completed structure as a dwelling and includes the construction of two driveway crossings, one to service the garage and the second to service extensive driveways around the perimeter of the courtyard platform. 14The landscape plan provides for formal planting within planters around the perimeter of the platform on its northern, eastern and southern sides. The driveway area extends across the front of the dwelling connecting the two proposed driveways with small planter beds provided adjacent to the entry. Additional trees are proposed at intervals along the front boundary and along the eastern and southern boundary of the site. No details of the treatment of the sloped area beyond the building platform are provided. 15As the site is not connected to the sewer, an area to the east of the proposed dwelling is to be made available for the on-site disposal of septic wastewater. The council has issued an approval under s68 of the Local Government Act 1993 for that work. 16The building certificate application applies to that work shown on the "Works as Built" plans and includes the lower floor of the main dwelling and the upper floor slab, the outbuilding to the roof level of the proposed rear dwelling section and the retaining walls. As the structural adequacy of the retaining walls could not be certified, the applicant has deleted those walls from the building certificate application however the intent to retain the platform with those walls remains. The maximum height of the wall that retains the platform is 1.426m. 17The proposed dwelling is constructed on a setback of setback to Zouch Road varying from 9.04m at the formal living area/lounge rooms to 9.94m to the garage and 10.24m to the family dining area. The front entry stairs and porch encroach that setback with the base of the stairs scaling at approximately 6.3m from the property boundary and the porch pillars on an alignment of approximately 8.9m. 18Setback from the northern (side) boundary is 4.96m for the main building and 4.88/4.9m for the outbuilding. The building is located at the high point of the site and well setback from the rear (eastern) and southern side boundaries. The site and its context 19The site is located on the eastern side of Zouch Road, Ingleburn at its southern extent. Zouch Road, whilst connecting to Campbelltown Road at its northern extent, does not provide road access from this point to its southern extremity. A closed section of roadway adjacent to the Edmondson Park South Release Area separates the two sections of carriageway with access to the site gained off Campbelltown Road via Brooks Road, Gibson Road and Keating Place. The M5 Motorway is located to the south of the site, separated by a battle-axe handle that services Lot 2 in the same Deposited Plan as the site. Lot 2 is vacant. Within the southern section of Zouch Road there are only four allotments that have frontage to that road. Those are the site, the adjacent battle-axe allotment to the east and No 9A Zouch Road and No 9 Keating Place, the latter, a corner allotment with frontage to both carriageways. 20The site is irregular in shape with a frontage of 115m to Zouch Road, depth of 90m (northern boundary) and site area of 1.017ha. The land sloped evenly from its north western corner to the south east. According to the Statement of Facts and Contentions in both matters (Exhibits 1 and 8), the site has been stripped of all existing vegetation and site levels re-graded. That regrading involves the creation of the building platform described above. The remainder of the site follows the natural contours. 21Land to the north of the site is within the Edmondson Park Release area with the lot adjoining the site zoned for Public Recreation and that land further to the north and east having been recently subdivided into large lot residential allotments in accordance with its E4 Environmental Living Zone under the provisions of State Environmental Planning Policy (Major Development) 2005 Edmondson Park South. No residential development has commenced within the subdivision. 22Land on the western side of Zouch Road is developed for large lot housing. That housing consists of large dwellings in landscaped settings. The planning controls 23The site is zoned 7(d5) - Environmental Protection 1 hectare Minimum Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP). Clause 25 applies to that zone and is in the following terms: (2) What are the zone objectives and what effect do they have?The objectives of this zone are: (a) to conserve the rural-residential character of the land by maintaining a minimum area of 1 hectare for lots used for rural-residential living, and (b) to protect environmentally important land and watercourses possessing scenic, aesthetic, ecological or conservation value, and (c) to allow some diversity of development, but only where it is unlikely to have a detrimental effect on the quality and character of the locality or the amenity of any existing or proposed development in the locality. Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development. 24The development application is for the use of the completed structure as a dwelling. 25The dictionary to the LEP contains the following definitions relevant to the permissibility of the development: dual occupancy (attached) means a dual occupancy comprising two attached dwellings on the same lot. dwelling means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile. dwelling house means a building containing one, but not more than one, dwelling. 26Dwelling houses and dual occupancies (attached) are the only forms of dwellings permitted with consent in the 7(d5) zone. 27Campbelltown (Sustainable City) Development Control Plan 2013 (DCP2012) applies to the site however it contains a savings provision at clause 1.1.9 that states: If a development application or an application under section 96 or 96A of the Environmental Planning and Assessment Act 1979 to modify a development consent has been made before the effective date of the Plan in relation to land to which this Development Control Plan applies and the said application has not bee finally determined before the commencement of this Development Control Plan, the application must be determined as if this Development Control Plan had not commenced. 28The effective date of DCP2013 is 3 July 2013 and accordingly, because the development application was lodged prior to that date, the repealed Development Control Plan 49 - Rural Environmental Protection Subdivision and Dwelling Policy (DCP49) is the relevant plan for the purposes of the application. 29The aims and objectives of the plan are to retain the rural/residential character of Campbelltown's scenic protection, rural environmental protection, rural and non-urban areas by providing guidelines for subdivision standards; provision of services and amenities; erection of dwelling; erection of outbuildings and the creation of dual occupancy buildings. 30Section C of DCP49 is relevant to the 1ha lots and contains setback controls (clause 24) and requires single storey dwelling houses and dual occupancies to observe a building line of 35m for single storey dwellings or 50m in the case of two storeys. A 10m setback is required for all dwellings from the side and rear boundaries. The issues 31The contentions in the case are whether the development is consistent with the zone objectives; the siting of the building is appropriate having regard to the setback provisions contained in the DCP; and the development is in the public interest. An issue raised by the Court is whether the development would constitute a dwelling as defined in the LEP as the result of a dispute between the parties in regard to the draft conditions proposed by the council. The evidence 32The hearing commenced on site with a view taken of the works completed to date and the adjacent development including that within Keating Place, Zouch Road (southern end) and Brooks Road. The Edmondson Park Release Area was observed however the parties agree that this is within a separate precinct and subject to distinct planning controls and it relevance to the case is one of a different context. 33A Joint Expert Report was prepared by Mr E Sarich for the applicant and Mr G Rahayogam for the council in relation to the building certificate application (Exhibit 5). That report recommended the submission of further details in relation to the works as built. That information was provided as Exhibit B and the parties agreed that, subject to the deletion of the retaining walls from the application for building certificate, there would be no reason that the Court should not uphold the appeal in that matter and direct the council to issue a building certificate for the works as built if the appeal for the development application is upheld. For that reason, the experts were not required for cross-examination. 34Expert planning evidence was heard from Mr E Sarich for the applicant and Mr R Blagojevic for the council. They agree that the extent of cut and fill for the retaining walls is excessive and could be addressed by having stepped retaining walls of lower heights or lower walls with graded fill and that an alternate solution may be a 1:2 or 1:3 batter to provide a softer landscaping solution. The council included the latter in its draft conditions of consent. The demolition of the northern wall would also address the council's contention in relation to the capture and concentration of overland flow from the upstream catchment as, from the evidence provided, there is doubt as to whether provision for drainage adjacent to the wall has been made. 35Mr Blagojevic agreed that, for consent to be granted, clause 25 of the LEP requires satisfaction that the development is consistent with only one of the zone objectives and agreed that the objectives of a, b and c are met by the development. In regard to the further objective, that requires the encouragement of a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development, he says that the development does not achieve this objective. He says that the siting of the development does not accord to the front boundary setbacks provided in the locality and that those greater front and rear setbacks on rural land assist in achieving a rural feel of the locality. 36Mr Sarich disagrees and says that the dwelling would be the only dwelling on the eastern side of Zouch Road and for that reason does not have a streetscape to fit into in the traditional sense as it will have no visual relationship with any other house on the same side of Zouch Road. The house will be bounded by the Edmondson Park Urban Land Release to the north and the Hume Motorway to the south. He says the south side of the dwelling can be well landscaped to ameliorate any perceived visual impacts in the same manner as has occurred directly opposite the site at No 9 Keating Place. 37Mr Sarich says that the setbacks in the locality are highly variable and for that reason, an alternate manner of looking at the setback is appropriate in the circumstances. He prepared a locality analysis and says that the structure as sited is more or less consistent with a 50m setback line drawn through the nearby properties in Keating Place and so an observer standing on the corner of Keating Place and Zouch Road looking north would interpret the new dwelling as having a major setback to the southern boundary in proximity to the Motorway rather than to the street. The Zouch Road setback resembles setbacks of the two closest dwellings being the side setback of 9 Keating Place and the front setback of 9A Zouch Road. 38Mr Blagojevic says that landscaping would not ameliorate the dwelling's mass on the allotment, particularly the two storey element and the dwelling's presentation to the street. In addition, the hard stand within the front setback would be significant and not consistent with the soft landscaping approach as experienced in the locality. He says the locality extends along Keating Place and Brooks Road, estimating that around 40-50 properties are included when accessing the locality from Campbelltown Road. When taking those properties into account, he conceded that there was no consistency in setbacks, that in Brooks Road, on its northern side, none complied with a 35 or 50m setback, however some may be around 30m. In Keating Place he says that all the properties on the southern side are setback in excess of 35m and those on the northern side at least 35m. 39No agreement was reached during the hearing as to the precise setbacks of the dwellings on the western side of Zouch Road however, it was agreed that No 9A Zouch Road did not comply with the 35m setback control and was in the vicinity of 13m. The dwelling at No 9 Keating Place is setback in excess of 35m and could be approximately 50m with the side setback, or that setback to Zouch Road being in the vicinity of 12m. Whilst no agreement was reached on these setbacks, it was agreed that the structure on the site is located closer to Zouch Road than the two dwellings on the western side of the road. 40The council's draft condition 15 requires the deletion of the kitchen located adjacent to bedroom 6. That is the kitchen within the "outbuilding". In addition, condition 12 reads as follows: The approved development shall not be used for more than one dwelling house. A separate development application shall be lodged with Council should approval be sought for more than one dwelling house on the land. 41The applicant opposed condition 15 and says that the proposed building as shown on the plans would be a dwelling regardless of the number of kitchens it contained and, in accordance with the provisions of draft condition 12, to use the building for any other purpose would be a breach of consent conditions. 42Mr Lazarus, for the applicant, submits that the intended use of the building is as a dwelling house to be occupied by the applicant and his family including a sub-group or branch of that family, a widowed relative and her family. That subgroup will occupy the rear wing of the dwelling, originally designated as the outbuilding and granny flat on the CDC but now joined to the main building structure as described at [11]. For the convenience of residents of that part of the dwelling, Mr Lazarus submitted that the second driveway was necessary to service the entry and provide ready access to the rear component of the building when occupants undertake activities such as delivering their groceries to the second kitchen. 43Mr Blagojevic expressed his concerns about the possible use of the space as a separate dwelling however did agree that such separate occupation of the space would be contrary to condition 12 if imposed in any consent granted. He says that the extent of driveway proposed would be better utilised for landscaping purposes. 44Mr Sarich says that a kitchen is a fundamental part of a dwelling house and the fact that a second kitchen is provided would make the building capable of being used as two separate occupancies however to do so would require illegal building works to divide the two areas. He also agreed that the extent of landscaping indicated on the plans was inadequate and that it should be improved and addressed through a draft condition tendered as Exhibit G. Conclusion and findings Is the development a dwelling? 45A fundamental issue for the Court is to determine whether the development as proposed is one dwelling. In this regard, the applicant has advised that it is intended to use the building for occupation by the applicant's family and a subgroup of that family, being a widowed relative and her family. The occupation and manner in which the building is used is one factor that would go to the determination of whether the building is a dwelling or more than one dwelling. So too would the facilities provided within the building. 46The most relevant consideration however, is the definition of a dwelling as defined in the Dictionary to the LEP. That definition is at [25] and if the building is found to contain two or more dwellings, it would be a dual occupancy in accordance with that definition. The application before the Court is for a dwelling and not a dual occupancy and the parties agreed that the application could not be amended in accordance with clause 55 of the Environmental Planning and Assessment Regulation 2000 (Regulation) as that would be outside the provisions of that clause. 47In determining whether the building is a dwelling, the definition does not include the subjective intention of the applicant to use it in a particular manner. To be a dwelling, it must be a room or suite of rooms occupied or used, or so constructed or adapted as to be capable (emphasis added) of being used, as a separate domicile. The two limbs of the definition have been examined by Pepper J in Dobrohotoff v Bennic [2013] NSWLEC 61 where Her Honour noted: [33] The definition of "dwelling" has two limbs. The first concerns the actual occupation or use of a room or rooms as a separate domicile and the second deals with the hypothetical test of whether a room or rooms are "so constructed or adapted as to be capable of being occupied or used" as a separate domicile (Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 at 221; Warringah Shire Council v Jennings Group Ltd (1992) 75 LGRA 402 at 407; Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 at [28] and Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 at [19]).... 48The first limb requires consideration as to whether the actual occupation or use of a room or rooms would constitute a dwelling. Whilst the application is for the use of the building once completed as a dwelling and the second limb is more relevant, the two issues must be considered. From the evidence provided and the information detailed on the plans, it is clear that the building is capable of being occupied as two dwellings. That is because the rear or "outbuilding" section of the structure contains all of the facilities and services required for individual occupation as a home and, would be occupied by one family. So too would the main building. 49The provision of linkages between the two buildings does not alter the way in which the two sections of the building are capable of being occupied. Both have separate entries, entry foyers, kitchens, laundries, bathrooms, living spaces, dining areas and bedrooms. The suites of rooms are on different levels to each other. These two separate families, despite the fact that those families are related, would actually use those rooms independently of the other. The relationship between the families is irrelevant to the determination of the issue. There is no need for any interaction between the two occupancies, no facilities are absent that are required to use each area as a separate home and the independent use of each suite of rooms can occur without the need for any additional building works. 50The other important test is whether they are separate domiciles. This issue was also considered by Pepper J in Dobrohotoff and the line of authority considered at [45] where Her Honour states: 45 Furthermore, when considering the first limb of the definition of "dwelling", regard must be had to the notion of "domicile" contained within it (820 Cawdor Road at [24]), and the critical element of permanence. Inherent within the term "domicile" is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupancy (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 288; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B; KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 at [8]-[18]; City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; (2008) 158 LGERA 67 at [38]; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [35]-[36]; Najask Pty Ltd v Palerang Council [2009] NSWLEC 39; (2009) 165 LGERA 171 at [15]; Vic Vellar at [32]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [110]; 820 Cawdor Road at [24]; GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 at [20]-[27] and Haddad at [47]). 51The evidence is that both families would occupy the separate suite of rooms as their permanent residence. For the reasons outlined above, I conclude that the two suites of rooms would be so constructed as to be capable of being used as separate domiciles and are therefore two dwellings. 52Whilst I accept that a dwelling house can have more than one kitchen, in this case, the layout, configuration, levels and design of the proposal is such that it is capable of being used as separate domiciles. I distinguish this case from that of Murrell C in Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094, in that, from my reading of the judgment, that case involved a kitchen associated with an outdoor recreation space rather than formed part of a suite of rooms to be occupied as a separate domicile. 53The applicant accepts that if the proposed building is not a "dwelling" as defined in the LEP, consent cannot be granted. This conclusion means that the development application appeal must be dismissed. Merit assessment of development application 54Because of the conclusion I have reached concerning permissibility of the dwelling element of the proposal is one which might be challenged pursuant to s 56A of the LECAct, I also consider it appropriate, consistent with the objectives set by s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties to consider the remaining merit aspects relating to the overall siting of the proposal. 55Having regard to the site view and the evidence provided, I am satisfied that the proposed development would be consistent with the objectives of the 7(d5) zone provided the extent of hardstand and retaining walls is reduced and softened by landscaping so as to be consistent with the scenic qualities of the locality. 56I also consider that in the circumstances of this case, there are sound planning grounds to justify variation of the setbacks of either the 35m or 50m required under the DCP controls. That is primarily due to the unique location of the site within the locality. The DCP does not contain any objectives for the setbacks however, I accept the evidence of the planners that the usual considerations of streetscape and amenity would be the primary considerations of the control with building separation and the consistent application of that control also relevant. 57The existing streetscape of Zouch Road that is visible in the vicinity of the site contains the site, the adjacent vacant battleaxe allotment and the dwellings at 9 Keating Place and 9A Zouch Road. The Zouch Road dwelling does not comply with the setback control however does provide landscaping between the built form and the property boundary as does the Keating Place dwelling that accords to front setback requirements, that landscaping being so dense along the Keating Place property boundary that it obscures much of the built form from view with a tennis court constructed wholly within the setback to Zouch Road. The 9A property is more visible and is constructed on an approximate setback of 12m. The landscaping of that site is also more open however there are extensive grassed and planted areas, particularly between the buildings and the roadway. This is an important element of the streetscape and the locality. 58The structure currently built of the site is in proximity to the dwelling at 9 Keating Place and follows, in accordance with Mr Sarich's evidence, a similar alignment to the dwellings on the northern side of Keating Place. It also accords, though closer to the boundaries by around 3m, with the reduced setback of those building located on the opposite side of Zouch Road. The variation of the setback is not so great as to be a discordant element in the streetscape. 59Within the broader locality that includes Keating Place and Brooks Road, the setbacks vary considerably, particularly in Brooks Road, the means of access to the site. Those setbacks are, according to the evidence in Exhibit 3, in the vicinity of 10-15m for the majority of the road with others setback further. As those streets have their individual character, allowing a variation to the setback control for this site would not result in a precedent for future development within the 7(d5) zone. 60The location of the site adjacent to a proposed public reserve is also a factor that provides for a reduction in the side boundary setback. 61For the reasons outlined above, I consider that it would be appropriate to allow variation of the setback controls provided extensive landscaped areas were provided at the front of the site. That would require the deletion of the extensive driveway and paved area across the front to the main building structure however provide for the completion of a building in the location of the current works. 62As the character of the locality is one that incorporates buildings in a landscaped setting, the impact of the proposed extensive retaining walls would be a foreign element within that character. For that reason, any retaining of the cut and filled areas and platform should be by way of landscaped or grassed batters, preferably more in keeping with the contours of the land rather than the 1:2 batters suggested by the council. I accept that it would be necessary for the batter along the northern boundary may need to be steeper due to the area available. The Building Certificate 63As the development application is to be refused on the basis of the development that is proposed not being a dwelling, the works as shown on the plans as built should not be authorised until such time as a legitimate consent applies to the site. That may be achieved through the resolution of the Class 4 proceedings currently on foot in this Court or through the submission of a fresh development application to the council. 64Until such time as either option outlined above, it is not appropriate to direct the council to issue a building certificate for any of the works on site. As a consequence, the building certificate appeal should also be dismissed. 65The Orders of the Court are: (1)In matter No 10969 of 2013 (a)The appeal is dismissed. (b)The application for a Building Certificate for those works at Lot 1 DP 1039153 Zouch Road, Ingleburn included in the application to Campbelltown City Council reference 957/2013/BC-UW dated 6 May 2013 is refused. (2)In matter No 10970 of 2013 (a)The appeal is dismissed. (b)Development Application 879/2013 for the construction of a two storey dwelling at Lot 1 DP 1039153 Zouch Road, Ingleburn is determined by the refusal of development consent. (3)In both matters, the exhibits, other than exhibits A, B, C, 1 and 8, can be returned. _____________________ Sue Morris 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. Decision last updated: 29 April 2014