Land and Environment Court New South Wales Medium Neutral Citation: Hand v Hornsby Shire Council [2017] NSWLEC 1063 Hearing dates: 1 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Class 1 Before: Dickson, C Decision: The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA/180/2016 for the completion and use of the free standing double carport at 32A Castle Howard Road, Cheltenham is refused. 3. The exhibits are returned with the exception of exhibits 1, and the Class 1 application filed on November 4 2016. Catchwords: DEVELOPMENT APPEAL: consent sought for illegal carport – encroachment into road reserve – impact of encroachment on public land and services - streetscape and visual impact of structure. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Ireland v Cessnock City Council, [1999] 103 LGERA 285 Signorelli Investments Pty Ltd v Sutherland Shire Council, [2001] NSWLEC78 Texts Cited: NSW Streets Opening Conference: Guide to Codes and Practices for Streets Opening, 2009 Category: Principal judgment Parties: Peter Hand (Applicant) Hornsby Shire Council (Respondent) Representation: Peter Hand, Litigant in person (Applicant) Solicitors: T Bush, Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/00330342 Publication restriction: No Judgment 1. COMMISSIONER: This appeal was lodged against the refusal by Hornsby Shire Council of development application DA/180/2016. The application sought approval for the use and completion of a double space carport that had been partially constructed without approval in the front yard of 32A Castle Howard Road, Cheltenham, (the Site). 2. The appeal was subject to mandatory conciliation on 1 February 2016, however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) Land and Environment Court Act 1979 (LEC Act)). 3. In hearing the appeal the role of the Court is to assess and determine the development application based on the evidence in the proceedings and the amended plans (cl 39 of the LEC Act). 4. The issue for the Court to determine is: 1. Whether the unauthorised development should be allow to remain, and therefore consent be given for the completion of the works and the use of the carport 2. The site and its context 1. The subject site has an area of 1029m² and is legally described as Lot 3 DP617006. The site contains a brick dwelling house and a partly constructed double space carport comprising of concrete block walls, which are in part functioning as a retaining wall. 2. The site is bushfire prone and is located within the Beecroft/ Cheltenham heritage conservation area. Directly opposite the site is a bushland reserve. The adjacent properties are residential homes with relatively consistent setbacks and landscaping within the street verge and front yards. The property slopes significantly (a 7m fall) towards Castle Howard Road and has been excavated as part of the unauthorised works to provide a concrete platform for vehicular parking. Planning Controls: 1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. 2. It is agreed between the parties that the proposed development does not fall within State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as complying development and requires consent. 3. Hornsby Local Environmental Plan 2013 (LEP 2013) applies to the site. Pursuant to LEP 2013 the site is zoned R2 Low Density residential. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The site is mapped within the Beecroft/ Cheltnam Heritage Conservation area, and cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Hornsby and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). 2. The Hornsby Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are in Part 3.1 Dwelling Houses. The relevant clauses for these proceedings are: Cl. 3.1.1 Scale, which has the following objectives: Development with a height, bulk and scale that is compatible with a low density residential environment. Cl. 3.1.2 Setbacks, which has the following objectives: a. Setbacks that are compatible with adjacent development and complement the streetscape. b. Setbacks that allow for canopy trees to be retained and planted along the front and rear property boundaries And controls which requires a minimum 6m setback to the front boundary; Cl. 3.1.7 Vehicular access and parking which requires: a. Car parking for dwelling houses should be provided behind the front building line 1. Additional provisions are contained in Part 9 Heritage. The relevant clauses for these proceedings are: Cl 9.3.1 General Design Provisions, in particular performance measure (h) which states: h. New buildings should be located so that they are compatible with predominant front setbacks in the street, particularly the setbacks of immediately adjoining buildings. Cl 9.3.2 Carports which has the following relevant desired outcome, b. Garages and carports that are designed as secondary structures and do not dominate the streetscape of heritage conservation areas. and prescriptive measures: a. Garages and carports should be located to the rear of the property. b. A garage or carport may be considered adjacent to the building where access to the rear is not available, provided it is setback behind the building line and to the side of the dwelling. c. Garages and carports should not dominate the street elevation or main façade of the building, and should be designed to: " be consistent with the Character Statements; " complement the existing dwelling in terms of design and materials; " present as secondary to the dwelling; " avoid double garages visible from the street; and " preferably comprise open sided carports rather than solid, enclosed structures. d. The alteration or demolition of any part of a building to enable construction of a carport or garage should be avoided, except where topography or the building design allows for the change. e. A maximum of one hardstand parking space should be located within the front setback area. Landscaping and garden layout should complement any hardstand area. 1. Where unauthorised development has occurred, and the development is permissible with consent, it is possible to seek a Building certificate to prevent orders being made for demolition in the future. This was established in [1999] 103 LGERA 285 Ireland v Cessnock City Council, where Bignold J held that a s149A building certificate could be used to 'regularise' an unauthorised structure. However, a new consent cannot be granted for a structure which was built without development consent, thus this application seeks development approval only to complete the works and approval for the use of the structure once completed. If consent was granted by the Court, Council seeks a deferred commencement requiring lodgement of building certificate for the works that have been completed without consent. 2. In submissions Mr Bush, for the Council, relied on [2001] NSWLEC78 Signorelli Investments Pty Ltd v Sutherland Shire Council which detailed the principal at [17] that the applicant as the unlawful user of the land, should gain no advantage from having established an unlawful use and the determination at [22] that it is open to the Court to give consideration to the development application on the basis that it seeks only consent to the future use of that part of the building which has been constructed or altered without development consent. Public submissions 1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2013. No submissions were received. Expert Evidence 1. The Court heard expert engineering evidence from Mr Clair, and planning evidence from Mr Vergison of Hornsby Council. Mr Vergison also prepared an expert report which was tendered as Exhibit 2. Council did not press any contention in relation to the impact of the structure on the heritage conservation area, subject to the application of the deferred commencement condition which requires screen planting to soften the carport from public view and the finishing of the structure in an agreed colour palette. 2. Mr Hand called no experts, however submitted a range of exhibits and made submissions to the Court during the hearing to refute Council's contentions. Council's position 1. At the commencement of the proceedings Mr Bush, for the Council, submitted that it would accept the carport structure being maintained with the imposition of the following deferred commencement condition on any approval given by the Court (Exhibit 5): Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until the following has been completed to the satisfaction of Council: That portion of the besser block retaining wall adjacent to the south-eastern side boundary of the subject site that encroaches within Council's road reserve is removed; A batter where the excavation has been made to locate the layback driveway within Council's road reserve is constructed. The batter shall be 4 horizontal to 1 vertical. A survey plan prepared by a suitably qualified, registered land surveyor certifying that no remaining part of the besser block retaining wall adjacent the south eastern side boundary of the subject site encroaches within Council's road reserve is submitted to Council. To regularise the works already completed, a building certificate application is lodged with respect to the existing concrete slab and the surrounding besser block retaining walls that define the carport structure. 1. In submissions Mr Hand stated that he sought an unconditional consent from the Court as the conditions proposed by the council where, in his view, unnecessary and expensive. Moreover it was his view that the alternative proposed by the Council of a combination of a batter (in the road reserve) and the retention of the wall (within his property) would be visually unappealing and would not sit well in the streetscape context. Noting that this alternative is contained in Council's development consent conditions and the evidence of Mr Vergison. 2. Accordingly Mr Hand seeks the Court's determination of the suitability of the development application as proposed, without the potential amelioration of the deferred commencement consent and I have proceeded on this basis. Should the unauthorised development be allowed to remain, and consent given for the completion of the works? 1. Mr Hand makes the submission that the setback controls in DCP 2012 have not been consistently applied by Council. To support this he provided evidence to the Court by way of a compilation of photographs demonstrating the existing built form within the vicinity of the site, with a proportion of these photographs taken within 100m of the subject site. As part of the management of the proceedings an adjournment was provided to allow the experts from Council adequate time to review this information. 2. In his submissions Mr Hand referred to the approval of car parking at his adjoining neighbours (32 Castle Howard Road) as precedent for his works being forward of the front setback control. In Exhibit B photographs of 38, 58 and 64 Castle Howard Road also show carport structures forward of the houses on these lots. 3. In submissions Mr Bush took the Court to the assessment report for the alterations and additions at 32 Castle Howard Road, and demonstrated that the alterations and additions proposed (and subsequently built) at the adjoining neighbours are compliant with Councils setback controls. 4. Following a review of the Exhibit B, Mr Vergison agreed that they demonstrate that the Council has, over time, accepted variations to the setback controls and that a strictly consistent setback is not a broad feature of the vicinity. In oral evidence Mr Vergison emphasised that in considering the applicability of these variations to the current application the circumstances of these approvals are relevant. In particular they may have been approved under earlier, superseded controls or may have warranted the application of the controls flexibly due to site constraints whilst still achieving the objective of the controls. It was also his evidence that as the works that are the subject of this appeal had not followed the appropriate regulatory process there was not the opportunity for alternative locations on the site for the carport structure, or variations to Councils controls to be assessed. 5. In his written evidence Mr Vergison stated that Councils expectations in respect of the front boundary setback of development in the low density zone is that set out in Part 3.1.2 of DCP 2013, namely that 'setbacks are compatible with adjacent development and complement the streetscape'. It was his view that the carport with a setback of 2.58m fails to comply with the numerical and performance standards of this control. 6. Mr Vergison, assessing the visual impact of the structure states: … it is noted that the character of the adjacent streetscape is typified by development by development that complies with, or exceeds the 6 metre front boundary setback. The front yards of adjacent properties support well developed landscaping, with low, if any fencing to enhance the open nature of the street… Approval of a carport with a width of 7m and a ridge height of 3.8m and at a 2.5m front boundary setback would be inconsistent with the established street character. (Exhibit 2) 1. It is agreed between the parties that the works, as constructed, encroaches approximately 4m into public land (road reserve). Mr Clair in his oral evidence provided evidence that there was two key impacts from the encroachment: 1. The works interrupt Council in discharging their asset maintenance and construction functions in the road reserve, noting that the road reserve contains sewer, water and stormwater assets. Mr Clair stated in oral evidence that any structure contained in the road reserve becomes an asset or a burden of the public and the retention of the wall (in any form) has the potential to increase complexity and costs of future works; 2. Council has a role in maintaining clear access to services by providing underground 'corridors' within the road reserve to allow utility services to be efficiently provided and maintained. These service allocations are relied on by electricity, telecom and other service providers. Mr Clair in his evidence explained that the management of these service allocations by reference to the NSW Streets Opening Conference: Guide to Codes and Practices for Streets Opening (Exhibit 7). 1. In submissions Mr Hand proposed that the component of the wall that encroached into public land could be reduced in size to 150mm and maintained as part of the carport. He argued that nothing was to be gained by the complete removal of the wall and the creation of a batter to retain the slope (as was sought by the Council in the deferred commencement condition). It was his view that his proposal of a reduced wall (to a height of 150mm) would not impede Councils access services or assets. Findings 1. When undertaking construction works the onus is on the land owner to ensure that such works are undertaken wholly within their land, or with owners consent of land owners on whose land the works are proposed. 2. Significant evidence was adduced during the proceedings referencing the process that has occurred since the works on site commenced, including the processing of the development application, the s82A review application and the filing of the Class 1 appeal. The role of the Court in a Class 1 appeal is to assess and determine the development as required by s79C of the Act, to which this evidence, whilst significant to the parties, has little relevance to the determination of the appeal. 3. At the commencement of the proceedings I participated in a site view and was able to view the subject site and the relevant streetscape. When viewed from the street the existing unauthorised works are imposing and dominant in the streetscape due to their reduced setback and uncharacteristic materiality. The emphasis of built form, over landscape, is not characteristic within the front verge and setback area of Castle Howard Road. The majority of properties have a wide front setback with low or no fencing and a prominence of informal canopy trees and gardens. 4. Front setbacks and the way they are treated are an important element of urban character and new development should strive to reflect these elements in some way. Mr Hand provided examples in Exhibit A to support the compatibility of his structure with precedents that exist in the street, or in proximity to the subject site. My review of these is that, in the majority, existing structures are setback from the street and retain a significant verdant area in the presentation of the homes to the street. This is not achieved by the proposed development. 5. The proposed conditions seek additional landscaping which would assist in screening the structure, but without details of these works I am not of the view that the excavation and dominance of the structure would be sufficiently ameliorated. On balance I prefer the evidence of Mr Vergison and conclude that the works are inconsistent with the established street character. 6. I do not accept Mr Hand's submission that the retention of the wall, even at a reduced height, would not impede Councils access services or assets. It is clear from the oral evidence of Mr Clair, and a reading of the NSW Streets Opening Conference (Exhibit 7), that the public land in question has a clear public purpose of ensuring adequate provision of space for services. This purpose would be impeded by the retention of the encroachment. Conclusion 1. One of the objects of the Act is to encourage the 'promotion and co-ordination of the orderly and economic use and development of land' (s 5(a)(ii)). In part, this is achieved through the making of Local Environmental Plans supported by more detailed Development Control Plans. Indeed, the Act and the Environmental Planning and Assessment Regulations 2000 specify how such plans are to be made and detail the planning approval process. These DCPs are informative to the community as to the form of development that may occur in the vicinity of their properties. 2. To ignore the approval process by not seeking development consent is counter to the orderly development of land and the planning system. This is aggravated in this case by the fact that the works in question are not wholly contained within Mr Hand's property. 3. On the basis of the evidence, and my s79C assessment, I do not accept that the proposed modification meets the objective of the DCP in relation to scale (cl. 3.1.1) which seeks development with a height, bulk and scale that is compatible with a low density residential environment or setbacks (cl 3.1.2) which seeks development with setbacks that are compatible with adjacent development and complement the streetscape. 4. For the reasons in the preceding paragraphs, I am satisfied that the proposed works have an unacceptable impact on the built environment in the locality (s79C(1)(b)) such that the works to complete the carport should not proceed for this reason alone. 5. For completeness my assessment concludes that without the ameliorative outcomes sought by Councils proposed deferred commencement condition the works are not consistent with cl 5.10(4) of LEP 2013, and when considering the effect of the proposed development on the heritage conservation, I find the impact is unacceptable. 6. Having considered the evidence of the Council on the impact of the works encroaching on the road reserve (public land) I am satisfied that the retention of the structures and completion of the works to allow the use of the carport is not in the public interest (s79C(1)(e)) and warrants the refusal of the application. 7. Given that I have found that Consent is not warranted for the completion and use of the carport, it will be a matter for Council to consider the most effective means of addressing the unauthorised works that remain on site and within the road reserve. 8. Orders: The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA/180/2016 for the completion and use of the free standing double carport at 32A Castle Howard Road, Cheltenham is refused. 3. The exhibits are returned with the exception of exhibits 1, and the Class 1 application filed on November 4 2016. ……………. D M Dickson 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: 16 February 2017