A Mulwala resident who illegally erected what has been described as an “unsightly and menacing shed” by a neighbour has now been denied any use of it by council.
Federation Council has voted to refuse consent to a Development Application (DA) for domestic use of a metal-clad shed situated at 44 Wanani Road, Mulwala at the July meeting two weeks ago.
The shed, constructed illegally in 2021, was brought to councillors’ attention during a monthly meeting on May 16, 2022, when a report on the unauthorised shed construction was considered.
The shed’s dimensions were in clear violation of the maximum roof height control for outbuildings, with its wall height and roof height exceeding the allowable limits significantly.
Despite director of development and environmental services Susan Appleyard recommending refusal of the shed, a surprising 7-2 majority vote favoured allowing the shed to remain with councillors Gail Law and David Fahey OAM the two to vote against.
The council’s planning department recommended the demolition of the shed in February 2023, but the matter was deferred to allow for an on-site inspection.
It was subsequently resolved that the shed would be retained, but certain conditions had to be met, including the lodging of a Building Information Certificate (BIC) application to document structural adequacy and addressing the intended use for the shed, landscaping plans to mitigate impact on neighbouring properties, and proper stormwater disposal.
The owner lodged a BIC application, which was only just approved on July 18, 2023
During last week’s meeting in Urana, the neighbour of 44 Wanani Road Mrs Clayton-Jones outlined her concerns about the future impact of the “unsightly and menacing” shed. She also raised objections to the approval of a BIC for the shed, as it was done without proper legal consideration.
“Friday afternoon at the 11th hour when agenda was released, I discovered that a BIC has been approved, when there was little opportunity to seek legal advice and issues still being under consideration within council,” she said.
“It is extraordinary that we have reached this stage. Since the May 2022 resolutions have been focused on an acceptable landscaping plan.
“I have repeatedly said that in all conscience I cannot consent to any landscaping design, purely to seek to retain an illegal and unauthorised structure.”
Included in the council’s July 25 meeting agenda was a letter from Barrister Dr. Steven Berveling of Martin Place Chambers in Sydney.
The barrister outlined reasons why council should refuse the DA for the shed’s use, stating that the proposed sequence of determining the DA before the BIC application was “contrary to the law, potentially leading to court proceedings”.
At last week’s meeting Cr Law moved a motion to refuse the use of the shed, citing the impact it had on the adjoining property.
“We should not give the owner use of the shed. I believe he was given advice that he would not get approval for it to be built where it was, and he built it anyway,” Cr Law said.
“That is going against everything this council stands for.”
Councillors engaged in a spirited debate over the implications of refusing the use of the shed and how it would be policed.
Cr Shaun Whitechurch questioned the appropriateness of approving the DA when it appeared to be legally problematic.
“Does it get padlocked by council and never used again? How does this help the neighbour if the shed is still there?” he asked.
Cr Sally Hughes raised a critical concern regarding the letter from the barrister.
“The proposed sequence of determining the DA prior to the determination of the application for a BIC for the shed is contrary to law. I don’t understand how we can approve when it is contrary to law,” Cr Hughes said.
“We must also take into account the reputation of our council.”
Council voted 7-1 in favour of Cr Law’s motion to refuse consent for the unauthorised shed’s use, overturning the previous recommendation with Cr Andrew Kennedy the sole member to vote in favour of granting consent.
Mrs Clayton-Jones said she was relieved by the decision.
“However, I am still left with an unsightly structure and even more questions,” she said.
“Will the owners obey the orders considering their past behaviour of non-compliance? Very doubtful.
“It is in the public interest that the shed is demolished.”