Land and Environment Court New South Wales Medium Neutral Citation: Geary v Cessnock City Council [2017] NSWLEC 1397 Hearing dates: 26 July 2017 Date of orders: 01 August 2017 Decision date: 01 August 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 8/2016/337/1 for the change of use of an existing garage to a dwelling, at 10 Glennie Street, Ellalong, is refused. 3. The exhibits, other than exhibits 1, 6, A, C and F, are returned. Catchwords: DEVELOPMENT APPLICATION: change of use from a garage in a shed to a dwelling; whether the proposal is consistent with the existing character of development in the street; privacy impacts. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Ireland v Cessnock City Council (1999) 103 LGERA 285 Texts Cited: Nil Category: Principal judgment Parties: Mr Allan Geary (Applicant) Cessnock City Council (Respondent) Representation: Counsel: Mr K. Nichols agent (Applicant) Mr A. Pickup solicitor (Respondent) Solicitors: Local Government Legal (Respondent) File Number(s): 2017/81584 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8/2016/337/1 for the change of use of an existing garage in a shed to a dwelling and ancillary alterations and additions (the proposal) at 10 Glennie Street, Ellalong (the site) by Cessnock City Council (the Council). 2. The appeal was subject to mandatory conciliation on 26 July 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. Issues 1. The Council's contentions can be summarised as: * The dwelling as proposed will be out of character with the existing character in Glennie Street and the proposal is contrary to the zone objectives; * The elevated verandah at the rear of the shed will result in overlooking of the rear yard of 12 Glennie Street; * Approving a change of use from a shed to a dwelling will set an undesirable planning precedent for the conversion and use of sheds as dwellings and it is not in the public interest to do so. The site and its context 1. The site has an area of 2131sqm with a frontage of 20m to Glennie Street. The site is on the eastern side of Glennie Street. The neighbouring dwellings on the eastern side of Glennie Street are single storey bungalows, some with a separate garage structure. The allotment sizes on both sides of the street vary widely and 10 Glennie Street is a comparatively narrow allotment when compared to some of the neighbouring properties. Background and the proposal 1. The shed currently accommodates a double garage with dwelling at the rear of the shed, consisting of a bedroom, a living/dining/kitchen room and a bathroom. There is a rear verandah elevated above the natural ground level. 2. The proposal is for a change of use from a garage in a shed to a dwelling and for ancillary alterations and additions for the fit out of the kitchen and bathroom. 3. A Construction Certificate was issued on 27/3/13 for Development Consent 8/2013/71/1 approving the construction of a garage on the site (exhibit 2, ff 2-3). 4. A Building Certificate for the structural adequacy of the shed was issued on 27/9/2016 (exhibit 2, ff 165-167). 5. The applicant applied for approval of the on-site wastewater management system, including a septic tank with a capacity of 3200L and an absorption trench, on 3 June 2016, and the application has not yet been determined (exhibit 2, ff 132-134). Planning framework 1. The site is zoned RU2 Rural Landscape under the provisions of the Cessnock Local Environmental Plan 2011 (LEP 2011) and the proposal is permissible with consent. The objectives of the RU2 zone, to which regard must be had at cl 2.3(2) of LEP 2011, are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To enable other forms of development that are associated with rural activity and require an isolated location or support tourism and recreation. • To ensure that the type and intensity of development is appropriate in relation to the rural capability and suitability of the land, the preservation of the agricultural, mineral and extractive production potential of the land, the rural environment (including scenic resources) and the costs of providing services and amenities. • To maintain and enhance the scenic character of the land. • To ensure that development does not create unreasonable or uneconomic demands for the provision or extension of services. • To minimise the visual impact of vegetation clearing in order to be consistent with the rural character of the locality. • To minimise disturbance to the landscape from development through clearing, earthworks, access roads and construction of buildings. • To ensure development does not intrude into the skyline when viewed from a road or other public place. 1. Clauses 7.14 Essential Services and 7.15 Groundwater vulnerability of LEP 2011 are in the following terms: 7.14 Essential services (1) This clause applies to land in Zone RU2 Rural Landscape. (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access. 7.15 Groundwater vulnerability (1) The objectives of this clause are as follows: (a) to maintain the hydrological functions of key groundwater systems, (b) to protect vulnerable groundwater resources from depletion and contamination as a result of development. (2) This clause applies to land in Zone RU2 Rural Landscape. (3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider the following: (a) the likelihood of groundwater contamination from the development (including from any on-site storage or disposal of solid or liquid waste and chemicals), (b) any adverse impacts the development may have on groundwater dependent ecosystems, (c) the cumulative impact the development may have on groundwater (including impacts on nearby groundwater extraction for a potable water supply or stock water supply), (d) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. Cessnock Development Control Plan 2011 (DCP 2011) relevantly includes the following in Part E – Specific Areas, Chapter 1: Ellalong Lagoon Catchment Area: 1.2.3 Erection of dweIIing houses a) Planning Principles • To ensure that new dwelling houses are designed and located to take into account the requirements for effluent disposal. • To ensure that all residential development is located to take into account on-site constraints including drainage, flooding and soil erosion. • To encourage the preservation of village character by: • separation of dwelling houses; • design and layout that provides for privacy; • visual screening through landscaping; and • siting of dwelling houses to maximise solar access. b) Specific Controls ii) Dwelling house b) Dwelling houses are to be located in such a manner that an aerated wastewater treatment system and associated irrigation area is able to be located in a logical position on the site (refer to Conceptual Lot Layouts at Map 2). iii) Setbacks b) In the Rural Precinct the minimum setback from the road frontage of an allotment shall be 18 metres in the RU2: Rural Landscape zone. v) Building Materials External cladding of dwelling houses and ancillary buildings shall be sympathetic to the local rural landscape in terms of colour and materials. Using building colours that echo the surrounding environment (ie. natural colours in the mid-tonal range or darker) have the effect of making the buildings appear to blend into the background. Highly reflective materials should be avoided where these are visible from the street o neighbouring properties. viii) Effluent Disposal Systems All dwelling houses and major extensions to existing dwelling houses will be required to install an aerated wastewater treatment system with an associated irrigation area, rather than a septic tank system. Refer to Section 1.2.4 Effluent Disposal for further detail. 1.2.4 Effluent Disposal a) Planning Principles • To reduce nutrient-enriched runoff received in Ellalong Lagoon and associated waterways, and in particular, to reduce the annual phosphorus budget entering the Lagoon. • To ensure that developments within the Ellalong Lagoon catchment are serviced by appropriate, well maintained wastewater treatment systems. b) Specific Controls d) All aerated effluent treatment systems shall comply with Council's policy for the installation and operation, the appropriate Australian Standards and the Department of Health guidelines. In installation and operation, particular attention should be given to the following matters: • siting of irrigation areas to avoid run off onto neighbouring properties or into stormwater drainage systems or watercourses; • the spray irrigation area shall be clearly defined and Council approval shall be gained prior to the relocation of disposal areas; • the ongoing performance of effluent disposal systems shall be continually monitored. To ensure that systems are operating, Council requires quarterly servicing and completion of service records; • disposal areas shall be turfed and/or landscaped to the satisfaction of Council. Public submissions 1. Two resident objectors provided evidence at the commencement of the conciliation conference on site. Their concerns can be summarised as: * The rear verandah provides an opportunity for the resident of the proposal to overlook the adjoining backyard of 12 Glennie Street; * The bathroom window of the proposal is visible from the pool deck of 12 Glennie Street; * In principle, a shed should not be converted to a dwelling because issues in relation to a dwelling, including siting, aesthetics, amenity impacts and so on were not considered by the Council when it issued development consent for the shed to be used as a garage; * The waste water tank drains towards dams used by animals on the adjoining property to the rear; * The raised plinth on which the shed has been constructed causes the overland flow of stormwater to channel on the adjoining neighbour's property and pool at the rear of their property. Expert evidence 1. The applicant relied on the expert planning evidence of Mr Matthew Egan and the Council relied on the expert planning evidence of Mr Garry Warnes. The experts prepared individual reports (exhibits B and 3) and a joint report (exhibit 4). I have considered those reports. 2. The experts disagreed on whether the use of the existing shed will have any impact on the character of the locality. According to Mr Egan, the use of the shed as a dwelling will not have any impact on the character of the area as it will not change the physical appearance of the existing shed. According to Mr Warnes, the existing shed is consistent with the appearance of other garages in Glennie Street, albeit larger in size, and the expectation is for a future dwelling on the northern side of the shed. In Mr Warnes' view, the proposal is out of character with the existing village character of development in Glennie Street because the proposal presents as a garage structure and does not have the characteristics of a domestic dwelling. 3. The experts disagreed on whether the proposal resulted in unacceptable overlooking of the rear of the adjoining property at 12 Glennie Street. According to Mr Egan, the application does not increase any impacts on privacy; however, he would accept the imposition of a condition of consent requiring screening if considered necessary. According to Mr Warnes, the opportunity for an occupant to overlook the rear yard of the neighbouring property from the rear raised patio is unacceptable. 4. Mr Egan accepted that a development application for the proposal made to the Council, including both the use and the erection of the building, would be unlikely to be approved. 5. Exhibit E shows a possible alternative street elevation for the proposal including a front verandah. Mr Warnes is of the view that dressing up the street façade of the existing shed does not alleviate his concerns regarding the character issue. Findings 1. The application before the Court is confined to the proposed use of the building and does not include any "alterations and additions" as described by the application form (exhibit 2, f 23) or "ancillary alterations and additions" as described by the Statement of Facts and Contentions (exhibit 1) because the so called (ancillary) alterations and additions are works that have been completed (Ireland v Cessnock City Council (1999) 103 LGERA 285 [90] and [95]-[96]). Therefore any grant of development consent could only be for the prospective use of the building and the unbuilt proposed works. The proposed use as a dwelling is permissible with consent. 2. The Building Certificate does not retrospectively provide consent for the works undertaken that are beyond the development consent issued for the shed in 2013, but it does "prescribe certain forms of legal immunity (by no means complete or absolute)" in respect of the shed pursuant to s 149E of the EPA Act (Ireland v Cessnock City Council (1999) 103 LGERA 285 [44] and [93]). 3. On that basis, I do not accept the evidence and submissions made on behalf of the applicant that the completed shed, as shown on the site survey and including the rear verandah, "falls within the confines of the building certificate" and that the use of the rear verandah in association with a dwelling will therefore not have any additional amenity impacts on neighbouring properties. The siting of the rear verandah, directly adjacent to the shared boundary, is inconsistent with the desired location for private open space for a dwelling in a rural setting. The proposal does not achieve a design and layout that provides for privacy. 4. I am not satisfied that the proposed use of the shed as a dwelling is consistent with the RU2 zone objective of maintaining and enhancing the scenic character of the land. I do not accept Mr Egan's evidence that there is no discernible character in Glennie Street, nor that the change of use will not will not have any impact on the character of the area as it will not change the physical appearance of the existing shed. 5. Glennie Street is on the outskirts of the small town of Ellalong and has a residential character within a rural setting. The existing shed, used as a dwelling, is inconsistent with the established character of Glennie Street and the locality. The proposal does not preserve the village character of Ellalong. I accept the submission on behalf of the Council that the expectation in approving a garage in a shed on the site was for the future construction of a dwelling, and that the future dwelling should be consistent with the established residential character within a rural setting in Ellalong and Glennie Street. 6. A dwelling uses simple architectural devices to create a transition of spaces on a site in order to delineate the public domain from the private interior and open space; consistent with our expectations of a dwelling. The cladding materials are not necessarily determinative of whether a residential character is achieved. The proposal is contrary to our expectations of a dwelling; because it is a shed perched on one side of an otherwise undeveloped site with a rear entry; because it does not create a transition of spaces on the site consistent with our expectations of a dwelling; and because it is inappropriately sited for use as a dwelling. As a consequence, the shed, without any other development on the site, is at odds with the residential character and rural setting established by the surrounding development. 7. As the proposal is contrary to the zone objectives for the RU2 Rural Landscape zone; and as the Council's contentions regarding character and amenity have been made out, it is not necessary to deal with the remaining contentions. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 8/2016/337/1 for the change of use of an existing garage to a dwelling, at 10 Glennie Street, Ellalong, is refused. 3. The exhibits, other than exhibits 1, 6, A C and F, are returned. ____________ Susan O'Neill Commissioner of the Court ********** Amendments 01 August 2017 - Formatting error 01 August 2017 - Formatting error 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: 01 August 2017