Wallace v Queanbeyan City Council [2009] NSWLEC 1045

Wallace v Queanbeyan City Council [2009] NSWLEC 1045

The Court modified the council's s 121B order because the shed's visual impact was low and could be softened by required landscaping, and garaging the trucks and equipment was compatible with the applicable rural residential controls; however, the public interest in maintaining Development Control Plan controls justified requiring a partial reduction so the shed would achieve sufficient compliance at approximately 330 square metres.

Jurisdiction
Australia
Judgment Date
29 January 2009
Procedural Posture
Appeal Against an Order Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment Following an Unsuccessful S 34 Conciliation Conference Under the Land and Environment Court Act 1979
Outcome
The s 121B order was modified to require partial removal and re-cladding of the shed; exhibits were returned except exhibits 5 and A.
Legal Topics
['section 121 B Order' 'rural Residential Development' 'development Consent Conditions' 'shed Size and Visual Impact' 'development Control Plan Compliance']
['planning and Environment' 'development Control' 'local Government'] ['section 121 B Order' 'rural Residential Development' 'development Consent Conditions' 'shed Size and Visual Impact' 'development Control Plan Compliance']

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Procedural Posture

Appeal Against an Order Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment Following an Unsuccessful S 34 Conciliation Conference Under the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the s 121B order requiring compliance with conditions 5 and 6 of development consent 500/2005 should be upheld or modified.' "Whether the existing rural shed's size and bulk were acceptable having regard to the Yarralumla Local Environmental Plan 2002 and Development Control Plan controls." 'Whether garaging two trucks with trailers, plant, equipment and domestic vehicles on the site was compatible with rural residential amenity.' 'Whether visual landscape impacts could be adequately addressed by landscaping and partial reduction of the shed.']

Ratio Decidendi

The Court modified the council's s 121B order because the shed's visual impact was low and could be softened by required landscaping, and garaging the trucks and equipment was compatible with the applicable rural residential controls; however, the public interest in maintaining Development Control Plan controls justified requiring a partial reduction so the shed would achieve sufficient compliance at approximately 330 square metres.

Court Disposition

The s 121B order was modified to require partial removal and re-cladding of the shed; exhibits were returned except exhibits 5 and A.

Orders

  • ['The order issued under s 121B, order No 15 of the Environmental Planning and Assessment Act 1979 dated 21 April 2008 is modified by deleting the words under the headings Terms of Order, Period for Compliance with Order and Reason for Order and inserting replacement terms.' 'A 6.5 metre length of the southern bay...