Goulburn Mulwaree Council issues consent for Run-O-Waters shed

Instead, councillors at their meeting on Tuesday granted retrospective approval for the 20-metre by 12m structure on the corner of Knowlman and Pockley Roads.

But it only came after an hour-long debate and an independent review of the February decision. The owner's consultant, Plan and Co director Kate Cartwright, also argued in open forum that the structure, as it stood, complied with all planning laws.

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"It's compliant and merits approval and (two reviews) saw no reason for refusal," she said.

Mrs Cartwright contended the council had incorrectly applied a development control plan. She did, however, acknowledge that the 248 square metre shed was illegally built.

A neighbour first complained about the "unlawful building works" in December, 2018. Following an inspection in February, 2019, council planners advised the owner, who was a builder, that a DA was required for the "large steel-framed structure under construction."

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They alleged he ignored a stop-work order in March, 2019 and continued to build walls. Despite promises of a DA from Mrs Cartwright, and several time extensions, it had not arrived by early July, 2019 when the council issued a draft demolition order.

Mrs Cartwright challenged this and lodged the DA in late July, 2019. Planners recommended approval in February, 2020 but councillors didn't agree. They refused it on five grounds, including that it did not promote good design and amenity; did not satisfy sections of the LEP and development control plan and was not in the public interest.

They also ordered that the owner pay a $6000 penalty for the "unlawful work." A council spokesperson confirmed this had been paid.

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In the interim, Mrs Cartwright had requested a review of the February decision. The analysis by Purdon Planning found that while there were concerns with the shed's consistency with the LEP, "they were not so significant to warrant refusal." Nor was its impact so adverse that it justified rejection.

They also said there was no evidence to suggest the structure was not "ancillary" to the home, despite housing two offices, and recommended approval.

Environment and planning director Scott Martin recommended approval. He said although the structure would not have been approved in its current location in front of the house and given its bulk and scale, these aspects could be mitigated.

This could be achieved through landscaping with mature trees, a covenant to ensure they were maintained if the property changed hands, removal of a gate and second driveway to ensure the shed was indeed "ancillary," and a condition the shed could not be used for commercial purposes.

But Cr Margaret O'Neill stood by the February decision and moved refusal.

"We're setting a precedent here and...sending the message that people can do anything," she said.

"They have put up an illegal building and anyone else would be made to pull it down."

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She and several councillors questioned how a builder wouldn't know it was unlawful and why he ignored a stop-work order.

In response, Mrs Cartwright said it was a genuine belief but the owner was now apologetic and regretful.

Cr Sam Rowland argued that landscaping would not reduce the impact and that retrospective approval was not in the public interest.

"It sends the message that an ordinary, rather than a high quality outcome (is acceptable)," he said.

Cr Rowland also accused Mrs Cartwright of taking an "adversarial approach" in her dealings with councillors and staff and advised her to be "more respectful."

But Mayor Bob Kirk maintained the independent review had debunked the original refusal grounds. As such, he could not support Cr O'Neill's motion.

"I don't like the way it was done anymore than you do but we have to make a decision on the facts, not emotion," he said.

"...I don't believe it creates a precedent. We have to deal with it on its merits. Our responsibility is to adhere to the planning processes and part of that is a review, which we have before us."

He argued refusal was not legally defensible in light of the review's findings. General manager Warwick Bennett also advised that planning staff could not defend refusal in court because they had recommended approval.

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Cr O'Neill's motion to refuse the DA was defeated five votes to four. A second motion to approve with mitigating conditions was successful. Mayor Bob Kirk and Crs Alf Walker, Leah Ferrara, Carol James and Denzil Stugiss voted in favour, while Crs O'Neill, Rowland, Banfield and Deputy Mayor Peter Walker were against.

After the meeting, Mrs Cartwright said the decision was "vindication" for her client and the community.

"When presented with a clear explanation of the merits of an application, Crs Sturgiss, Walker, James, Ferrara, Deputy Mayor Walker and Mayor Kirk can be relied on to assess an application objectively and in accordance with the (Planning) Act," she said.

"The shed, having been partially constructed without development, presented too much of a roadblock for Crs Rowland and O'Neill, who struggled to...acknowledge the merits of the application before them."

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