Inspection Committee Meeting
19 July 2008, 8:30AM
Notice of Meeting
Notice is given of the Inspection Committee Meeting, to be held at
The Inspection Committee inspects sites in order for Councillors to inform themselves and listen to any person who has an issue or concern about the proposal. It is appropriate that any debate and decision take place at a Council Meeting, not onsite.
Councillors enter premises at the invitation of the property owner/occupier, and Council encourages the property owner/occupier to allow relevant third parties to accompany the Committee on its inspection.
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Committee Meeting Procedures
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The Meeting is conducted in accordance with Council's Code of Meeting Practice. The order of business is listed in the Agenda on the next page. That order will be followed unless Council resolves to modify the order at the meeting.
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TABLE OF CONTENTS
Environmental Services Division Reports
1. Environmental Services Division Report No. 38
Environmental Services Division Report No. 38
Reference: Environmental Services Division Report No. 38
Record No: su1802 - 23619/08
Author(s): Peter Thomas
· A Notice
of Intention to Issue an Order was served on the owners of
· The owner has advised that the encroachment of the trampoline structure is up to 1.5m.
· Following negotiation with Council officers, an Order has been issued for the removal of the trampoline structure from the bushland reserve. Action on this has been deferred at the request of the owner.
· The owners of the property have approached Council to allow the trampoline structure to remain partially on the reserve.
· The recommendation is for the Order to be complied with and the structure removed in accordance with the Order.
· The matter is referred to the Inspection Committee at the request of the Mayor, Councillor Longbottom.
· November 2007: Council’s Bushland Manager advised of possible unauthorised work adjoining Council’s bushland.
· 26 November 2007: The property inspected by Council’s Building Surveyor and the owner (Mr Wymond). The inspection indicated possible enlargement of a timber deck, cubby house and trampoline structure with timber supports built at the rear of the property without Council consent. A tree has also been removed without authorisation. The owner advised that the tree was dead.
· 13 December 2007: A Notice of Intention to Issue an Order was served in relation to the unauthorised building works.
· 17 December 2007: Representation received from owners that they considered the development “exempt” and for Council not to proceed with the Order.
· 29 January 2008: Council advised the owners of the property that the Order will be deferred pending the applicant to:
§ Submit as-built plans of the cubby house and any other supporting documentation in order for Council to refer these documents to the NSW Fire Service.
§ Satisfy any requirements of the NSW Rural Fire Service with respect to the cubby house structure being built within that bushfire prone area.
§ Submit evidence that the cubby house is not located above Sydney Water sewer and water mains and /or easements.
§ Submit a certificate for the full height glazing stating that it is toughened glass to comply with AS1288.
§ Provide a balustrade and gate to secure the playground equipment at the lower level and to prevent a fall from the upper timber deck to the level below which is greater than 1m.
§ Remove the trampoline and timber support structure.
· 25 February 2008: Representation received with supporting documentation and a request that the trampoline structure be permitted to remain.
· 7 March 2008: Council responds that the documentation is satisfactory, but will given further time to remove the trampoline and supporting structure.
· 10 April 2008: Matter considered by Council’s Bushland Manager and retention of the structure is not supported.
· 24 April 2008: An Order pursuant to Section 121B of the Environmental Planning and Assessment Act was issued giving 28 days to remove the structure.
· 26 May 2008: A request was received from the owner of the property requesting a delay/deferral of the Order until mid August 2008 due to difficulties in getting a contractor to carry out the work and due to the owners taking holidays.
· 27 May 2008: An extension of time granted and owners asked to advise Council when the work had been carried out.
· 18 June 2008: A request made by the owner to the Councillors requesting that the trampoline structure be permitted to remain.
Following the Issue of the Notice to remove the structure the owners of the property made representation to the Councillors. The representation seeks Council agreement to allow the structure to remain.
The trampoline structure is a substantial structure and is located on a rocky outcrop above the bushland track. The structure is clearly visible from the track particularly when walking towards the south west on the track. A copy of the representations and photos of the unauthorised building works have been provided to Councillors separately.
In the absence of a survey report, the owner has advised that the structure encroaches on Council’s bushland reserve by 1.5m.
There has been considerable negotiation with Council officers, with the most recent being a stay on the Order to remove the structure due to difficulty of the owners getting contractors to do the work and holiday commitments. Subsequent to that Councillors will have received the request from the owner requesting that the structure be allowed to remain.
The land outside the property boundary is zoned Opens Space 6(b) – Bushland.
The objective is to preserve bushland areas within the Council’s ownership or control in their natural state.
The structure is prohibited by Clause 9 of the Local Environmental Plan and the draft Local Environmental Plan.
The land is affected by Development Control Plan 1 – Development Adjacent to Bushland. For sites identified in DCP 1 as being adjacent to bushland, it is a DCP requirement that a 10m buffer be provided from the rear boundary to any buildings on the site. A list of permissible encroachments into the buffer are listed in the clause, but they are not structures and relate to such things as services, drainage, paths and fire breaks. The structure is contrary to this requirement.
Clause 8 of DCP 1 also states in relation to development in the bushland as follows:
Development of this land is limited to that permitted under Clause 11 of the LEP. The Environmental Protection Area in the LEP is part of this area.
The relevant part of Clause 11 of the LEP states:
(3) The Council shall not consent to the carrying out of development on or with respect of land to which this clause applies where, in the opinion of the Council, the vegetation, topography or distinctive features of that land are likely to be adversely affected thereby.
For the purposes of Clause 11, development is defined as:
(a) The erection of any structure on the land;
(b) The erection of a fence on the land;
(c) The removal of soil or rock from the land;
(d) The deposit of soil, rock or any other matter on the land; and
(e) The destruction or removal of any tree or other vegetation on the land.
It is suggested that the structure is contrary to this control.
Further, Council at its meeting of 3 March 2008 resolved:
A. remove private access over Public Open Space;
B. not permit neighbours to have temporary access over Public Open Space for vehicles and materials and;
C. discourage encroachments into Public Open Space.
Further, that Council resolve that no action
be taken to remove the access off Elizabeth Parade behind the properties
D. further investigation has been undertaken into the interests of Sydney Water in respect of their use of the pathway for access to their sewer installations; and
E. Plans for the reconfiguration of Stringybark Creek have been formally approved by Council following consultation with affected residents and a report be referred to Council at its 1st meeting in April 2008.
The structure is an encroachment onto public open space, and in accordance with the Policy can not be encouraged, and as such should be removed.
Council’s in-house solicitor was requested to comment in terms of liability and has verbally advised that the continued presence of the structure increases Council’s exposure to actionable legal liability. This is in terms of “release and liability”; as in, Council’s risk of being sued by the owner in the event of an incident, or by a third party.
The retention of the structure is not supported for the above reasons in this report as such may set an undesirable precedent for other encroachments into Council reserves, as well as issues of liability.
That Council proceed with the Order issued under Section 121 of the Environmental Planning and Assessment Act, and require the removal of all structures from the reserve within 28 days of the date of this resolution.
Environmental Services Division