Land and Environment Court New South Wales Medium Neutral Citation: Sladen v Tweed Shire Council [2014] NSWLEC 1184 Hearing dates: 28 August 2014 Decision date: 29 August 2014 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is upheld. (2)Development consent is granted to DA 13/0678 for the erection of an outbuilding with shower and toilet at Lot 2 SP 38780, No 2/1 Beatrice Court, Pottsville subject to the conditions in Annexure A. (3)The exhibits may be returned except for 1, 2, A, B and C. Catchwords: Development Application: Outbuilding, compliance with zone objectives, excessive height, compatibility with neighbourhood in terms of streetscape, acoustic impacts on adjoining property Legislation Cited: Tweed Local Environmental Plan 2014 Tweed Local Environmental Plan 2000 Category: Principal judgment Parties: Janice Sladen (Applicant) Tweed Shire Council (Respondent) Representation: Mr P Sladen (Agent for the Applicant) Ms M Hawley (Respondent) Lindsay Taylor Lawyers (Respondent) File Number(s): 10357 of 2014 Judgment Background 1This appeal was lodged against council's refusal of a development application for an outbuilding on a corner lot located at 1 Beatrice Court, Pottsville. 2A number of contentions were identified for the appeal which can be summarised as follows: * Non-compliance with the primary zone objectives in terms of amenity impacts, particularly visual and acoustic impacts on the neighbouring property and streetscape. * Excessive height and incompatibility of the structure with the character of the area. 3The appeal was undertaken by way of a s 34 Conference, which commenced with the hearing of objectors and then an initial conciliation conference. 4During the conciliation conference the parties discussed various aspects of the outbuilding and associated impacts. Mr Lonergan initially agreed that a suitable outbuilding was permissible in the proposed location providing the amenity impacts were acceptable. 5After discussion of various options there was no agreement and the conciliation conference was terminated. The matter then proceeded to the determination phase in the s 34 AA proceedings. Proposal description 6This proposal is for the erection of an outbuilding containing a shower, toilet and a Colorbond fence with privacy screen to a height of 2.1m. The outbuilding has a building footprint of 41.7 sq m and a 450 mm setback from the rear boundary. It has a 4.4m wide front panel lift door and a smaller rear door to permit entry to the rear yard. The proposal does not include any formal crossing over the footpath area in Beatrice Court. 7The applicant confirmed that the purpose of the outbuilding was primarily to house a small boat and equipment trailer in the rear yard. The site 8The site is 2/1 Beatrice Court, Pottsville and is described as Lot 2 in SP 38780 and has an area of 402 sq m. It is generally rectangular in shape with an irregular 19.46 m eastern frontage to Beatrice court, a 12.89 m boundary to Andrew Avenue and a northern boundary of 18.74 m. 9The western boundary is a common boundary with the adjacent Lot 1, which forms the western half of this single storey attached Dual Occupancy, and Lot 2 also adjoins common property upon which a carport has been erected. Planning controls 10The primary control is the Tweed LEP 2000 under which the site is in the Low Density Residential Zone and the proposed land use is permissible. As the application was submitted on the 21 November 2013, it predates the Tweed LEP 2014 and the savings provisions in that LEP have the effect that it does not apply to the determination of this development application. 11The other controls include: * State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) * North Coast Regional Environmental Plan 1988 (NCREP 1988) * Tweed DCP 2008 applies to the site, particularly Section A1 and Tourist Code. The evidence 12Expert evidence was presented by: * Mr C Lonergan, Consulting Planner for the Respondent * Mr A Smith, Consulting Planner for the Applicant who supports the conditional approval of the application. 13As noted, the discussion of options in the conciliation phase resulted in the following amendments by the applicant: * The roof structure being lowered by 450mm to enable the eave line to substantially match the subject and adjoining dwellings * Reduction in the height of the front panel lift door from 2400 mm to 2100 mm * Option to amend the rear door to a panel lift and reduce its opening width to 1800 mm from 2400mm 14These amendment options arose in response to the following initial issues: * The size and location of the outbuilding in close proximity to the neighbouring bedroom at 2 Beatrice Court would cause unsatisfactory streetscape visual and safety impacts. * The proposed fenestration on the rear western wall would potentially cause acoustic disturbance to the occupants of No 2, depending on the uses undertaken in the outbuilding. 15After further consideration of the amendments, Mr Lonergan agreed that taking into account the context of Beatrice Court, being a relatively short and wide cul-de-sac; then: (i)The potential traffic safety issue arising from the occasional manoeuvring the boat into the outbuilding would be within acceptable safety limits for the environmental capacity of the street. (ii)The reduction in roof height of the building, which aligns its eaves with the adjoining dwellings is acceptable. (iii)Subject to conditions concerning the building specification/colours the streetscape impact would be basically acceptable. 16However, he remained dissatisfied with the retention of the rear door because he did not consider it necessary due to the small size of the remaining rear yard and also because of the potential adverse acoustic impacts on the occupants of No 2, particularly the nearby bedroom. Conclusion 17For the determination of this matter, I have carefully considered the evidence, the submissions and undertaken a view. 18I understand from Mr Lonergan's evidence that an outbuilding of the form proposed is permissible. The proposed building envelope complies with all the relevant numerical controls, including its rear setback. 19In my assessment, the amendment to lower the building and bring its eave line in line with neighbouring properties, together with its subdued colours to match the existing dwelling should result in an acceptable streetscape impact, particularly taking into account that the building profile will be screened to some extent and framed by other building background. 20It seems to me that various types of outbuildings are common in this neighbourhood and therefore it is not an unreasonable expectation for the applicant. With regard to the impact on No 2, I am satisfied that the amended proposal does not impact on the outlook from the front bedroom window to such an extent to warrant refusal. The primary outlook is directly towards the front lawn/garden area and the outbuilding is in a secondary viewing corridor, as agreed by Mr Lonergan. 21Consequently, the main impact is potential noise arising from uses within the outbuilding and any emissions through the opening of the rear door proximate to the neighbour's bedroom window in No 2. 22These concerns are that excessive noise will result from the use of the proposed outbuilding and also that the provision of the rear door to the yard area will cause a reduction in acoustic amenity. 23In this regard I note the applicant's submission that the intent of the rear opening is to enable a small trailer to be parked and pass through in order to dispose of grass clippings and other materials. Accordingly, I have considered the applicant's further option that the rear door be reduced in width to minimise its usage and also to incorporate a door operation specification which minimises noise emission. 24Having viewed the surrounding neighbourhood, it is apparent that many neighbouring dwelling incorporate outbuildings, which are of different forms and sizes. I am therefore satisfied this application is reasonable in the circumstances and it does not warrant refusal on the basis of speculation that it will result in undue noise nuisance. Assuming the subject residents adopt a good neighbour approach - noise minimisation should not be an issue - or it could be subject to other Orders. 25In summary then, I consider this amended application for an outbuilding merits conditional consent. 26The prevailing control is the Tweed Local Environmental Plan 2000 (the LEP) under which the site is in the 2(a) zone and the proposal is permissible. 5.2 The primary objective of this zone is as follows: to provide for and maintain a low density residential environment with a predominantly detached housing character and amenity. The secondary objective of this zone is as follows: to allow some diversity of housing types provided it achieves good urban design outcomes and the density, scale and height is compatible with the primary objective... to allow for non-residential development that is domestically based, or services the local needs of the community, and does not detract from the primary objective of the zone. 27Clause 8 of the LEP relevantly provides: 8 Consent considerations (1) The consent authority may grant consent to development (other than development specified in Item 3 of the Table to clause 11) only if: (a) it is satisfied that the development is consistent with the primary objective of the zone within which it is located, and (b) it has considered those other aims and objectives of this plan that are relevant to the development, and (c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole. 28In accordance with the aforementioned reasons, I am satisfied that the proposal is consistent with primary zone objective and it is acceptable within the aims and objectives of the plan and that its approval will not have unacceptable cumulative impacts on the locality and community. Therefore the cl 8 consent considerations are satisfied. I am also satisfied that the amended proposal demonstrates reasonable compliance with the DCP 2008. 29Accordingly the Court orders that: (1)The appeal is upheld. (2)Development consent is granted to DA 13/0678 for the erection of an outbuilding with shower and toilet at Lot 2 SP 38780, No 2/1 Beatrice Court, Pottsville subject to the conditions in Annexure A. (3)The exhibits may be returned except for 1, 2, A, B and C. R Hussey 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: 08 September 2014