Alramon Pty Limited v City of Ryde Council

Case •

[2014] NSWLEC 1273

•

14 July 2014

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Alramon Pty Limited v City of Ryde Council [2014] NSWLEC 1273
Hearing dates:14 July 2014
Date of orders: 14 July 2014
Decision date: 14 July 2014
Jurisdiction:Class 1
Before: Dixon C
Decision:

See paragraph [40]

Catchwords: BUILDING CERTIFICATE – Consent orders - part extension of a dwelling – works required to render issuing of a certificate
Legislation Cited: Environmental Planning and Assessment Act 1979
Ryde Local Environmental Plan 2010
Ryde Development Control Plan 2010
Ryde Local Environmental Plan 2011
Category:Principal judgment
Parties: Alramon Pty Limited (Applicant)
City of Ryde Council (Respondent)
Representation:

Counsel:
Mr P Clay SC (Applicant)
Mr A Gough (Solicitor) (Respondent)

Solicitors:
Parisi & Associates Lawyers (Applicant)
Storey & Gough (Respondent)
File Number(s):10768 of 2013 and 10695 of 2013.

Extempore Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Introduction

  1. The applicant, Alramon Pty Ltd has two filed appeals with the Court in respect of the development of a residential property at 29 Vimieri Road, Eastwood (the site).

  2. The first appeal, matter no 10768/13, concerns the Ryde City Council’s refusal to issue a building certificate for the development.

  3. The second appeal, matter no 10695/13, concerns an order issued by the Council in respect of the development. In accordance with the parties’ request I have adjourned the order appeal until after the finalisation of the building certificate appeal.

  4. This judgement is in respect of consent orders proposed by the parties in relation to the building certificate appeal.

  5. Notwithstanding the agreed position between the parties, I am required to be satisfied that it is appropriate to make the orders requested by them. Therefore, in considering the consent orders I have had regard to the matters raised by the objectors at the commencement of the onsite hearing; the planning evidence in respect of the proposed works as detailed in the amended plans and draft conditions and, the written objections received by the Council following notification of the application.

  6. Before I deal further with those matters I need to set out my understanding of the facts which is based on the Council's amended statement of facts and contentions dated 25 June 2014 (exhibit 1).

The proposal

  1. The building certificate application BC 2013/0003 describes the works the subject of the application as “part extension of building (house) as marked out on plans”.

  2. The plans accompanying the building certificate application depicted the following works:

  • Extension of the dwelling house to the rear at ground level by 4 metres to accommodate a living and dining area.

  • Construction of a double storey addition within the northern side setback comprising of a parking area for 2 vehicles at ground level and a rumpus room and three bedrooms at the first floor level. The double storey addition extends 8.7metres towards the side boundary, has a depth of 11.20m and a height of approximately 7.11metres (double story addition).

  • Construction of a rear first floor balcony from the rumpus room.

  1. However, on 24 February 2014 the Court granted the applicant leave to rely upon amended plans.

  2. The amended plans prepared by Archi J Designs are described as Issue A, dated December 2013, drawing nos 369/04 to 2369/09. They are further modified by the draft conditions of consent in Annexure A to the consent orders.

  3. In order to understand the detail of the works the subject of the building application I asked Mr Clay, senior counsel for the applicant and Mr Gough the Council’s solicitor to explain the works by reference to the description under the heading “Proposal” in exhibit 1.

  4. They agreed that the works included the following :

  1. The replacement of the roof of the double storey addition with a hipped version and an increase in the overall height of the structure by 30 mm;

  2. The enclosure of the basement parking area via walls and a garage door;

  3. The removal of an internal wall in the existing dwelling to accommodate a large wardrobe;

  4. Relocation and redesign of all Street facing windows within the double storey addition;

  5. Construction of a new ground floor roof element over the garage door;

  6. New excavation adjoining the double storey addition

  7. New awning /roofs over enlarged rear facing balconies.

  1. They also said that the two handwritten additional conditions - marked 1A (a) and (b) which were inserted to address the residents’ concerns were also the subject of the building certificate application. They provide:

  1. The external louvres to the bedroom 3 on the northern facade should be fixed at 18° above horizontal, not less than 100 mm in depth and no greater than 100 mm apart.

  2. The privacy screen on the northern elevation of the balcony adjacent to the rumpus room shall be designed and constructed such that the gap between the horizontal slats shall be no more than 20 mm.

The site

  1. The context of the development is important in this case because the Council has raised concerns about the development’s consistency with the desired future character of the area and, the development’s impact on the existing streetscape.

  2. The site is described in the Council’s statement (exhibit 1) in the following terms.

  3. The property is located on the western side of Vimiera Road, Eastwood between Beauchamp Street and Vanimo Place. It is of an irregular configuration with a total area of 1130m2.

  4. The frontage of the site is of 20.62 m and the rear boundary extends for 16.705 m. The north eastern boundary has a depth of 49.865 m and, the south-western boundary has a depth of 50.29 m.The site has a fall in natural ground level towards the rear of the property by approximately 3 m

  5. A single storey 1920s federation style bungalow of brick construction with timber accents and a pitched roof is erected on the site. However, recent development works have been undertaken and a portion of the rear of the dwelling has been demolished along with an attached covered area and outbuilding. There has also been demolition of a detached garage to the side of the property and the construction of a double story addition within the side northern setback and other building works.

The locality

  1. The area surrounding the site is characterised by low density residential development. Development in the visual catchment of the subject property is predominantly single story, with a small's number of new two story structures. Dwellings in the locality are largely consistent in bulk scale architectural design with design and material.

The statutory controls

  1. The relevant planning controls are: Ryde Local Environmental Plan 2010 (LEP 2010), the Ryde Development Control Plan 2010 (DCP 2010) and the Draft Ryde Local Environmental Plan 2011 (LEP 2011).

  2. The site is within the R2 low-density residential zone under LEP 2010. Relevantly, alterations and additions to a dwelling house are permissible with the consent of the Council. The site is also within the R2 low-density residential zone under the draft LEP 2013 and the works are permissible with consent. The draft plan was exhibited between 30 May 2012 and 13 July 2012 and is currently before the Minster for determination and gazettal. The draft plan is said to be both imminent and certain.

Actions of the Council

  1. The application was lodged originally with the Council on 17 January 2013 and following notification the Council received two submissions objecting to proposal. Ultimately, the application was refused by the Council on 16 July and in response the applicant filed this appeal on 12 September 2013.

  2. After the lodgement of this appeal the applicant received development consent for alterations and additions to the existing dwelling. The plans approved by the development consent number LDH 2014/0115 dated 6 May 2014 differ from the amended plans before the court I respect of the double storey addition.

Contentions

  1. The council has raised several contentions in respect of the design of the development and its impact on the street and the neighbouring properties (Part B, exhibit 1).

  2. In particular, the Council was concerned about the building’s setback from Mr Raymond’s property and, the visual impact of its roof in the streetscape and when viewed from the adjoining residents. The council also complained that the application contained insufficient information to enable an informed assessment in respect of stormwater.

  3. The contentions raised by the objectors are:

  • the development results in the overlooking of adjoining neighbour and a reduction in privacy;

  • the development results in the overshadowing of the adjoining dwelling on a private open space;

  • The development increases the amount of hard paved areas and results in drainage and run off issues.

Objectors’ evidence

  1. At the commencement of the hearing the Court received oral evidence from the following residents who object to the application - Mr Roots of 7 Cassia Place, Eastwood, Mr Mooney of 31A Vimiera Road, Eastwood and Mr Raymond of 31 Vimiera Road, Eastwood. The Court also viewed the development from Mr Raymond’s kitchen and laundry and rear yard.

  2. Mr Raymond told me that his major concern is privacy. In particular, his privacy within his kitchen, laundry and backyard. It was clear at the view that there was opportunity for direct overlooking from the development’s bedroom window numbered 3 into those areas of Mr Raymond’s property.

  3. In response to that evidence the applicant offered to treat the bedroom window numbered 3 with louvers. The treatment is detailed in condition 1A (a) of Annexure A to the proposed orders at [13].

  4. The applicant also offered to install a privacy screen (as detailed in condition 1A (B) of Annexure A of the proposed orders) on the northern elevation adjacent to the rumpus room to ensure that any person standing on the balcony cannot directly overlook into the Raymond property.

  5. The other objectors who addressed the Court own the properties behind the site. They were also concerned about overlooking but their complaint related to the rear balcony of the development. They also raised concerns about the stormwater runoff from the development site onto their land.

Expert planning evidence

  1. The parties’ consultant planners, Mr Tesoriero on behalf of the Council and Mr Martin for the applicant, assessed the amended plans and the draft conditions in their joint report which is exhibit 2. They also gave oral evidence at the hearing onsite and concurrently in the Courtroom.

  2. In short they agreed that subject to the works as outlined in the amended plans and draft conditions, the development is acceptable. They believed that it is appropriate that the Council be directed to issue an occupation certificate and a building certificate after the completion of the works.

  3. With respect to the objectors’ concerns they told the Court that in their expert opinion, subject to the imposition of the recommended conditions, there was no direct privacy issue to the properties at the rear of the site or adjoining the site.

  4. I was also told that the stormwater disposal proposed for the site had been further explained by the applicant and was now acceptable as it addressed the objectors’ concerns and the council’s contention in exhibit 1.

Jurisdiction

  1. On hearing an appeal under s149F of the Environmental Planning and Assessment Act 1979 by an applicant who is aggrieved by a Council's refusal to issue a building certificate the Court may do one or more of the following:

  1. it may direct the Council to issue a building certificate on such terms and on such conditions of the Court thinks fit,

  2. it may revoke, alter or confirm a notice under section 149C,

  3. it may make any other order that it considers appropriate

Consideration

  1. I am satisfied on the evidence of the planners and after an inspection of the site that the applicant should receive a building certificate from the Council upon completion of the works. I am also satisfied that the conditions imposed satisfactorily address the residents’ concerns particularly those raised on-site at the hearing.

  2. The applicant has asked for some time to complete the works and suggested a period of six months. The Council consents to that time period.

  3. While the period in which to complete the works is lengthy I accept it is appropriate in this case. I am mindful that the applicant well appreciates that the timeframe of six months runs from the date of this order and requires the carrying out of the works in the Orders and for the Council to inspect those works within a 14 day period thereafter before the issue of an occupation certificate and a building certificate.

Orders

  1. Accordingly, for the reasons stated, I make the consent orders in the following terms:

  1. The appeal is upheld.

  2. The applicant shall within six months from the date of this order, carry out the building work stipulated in plans prepared by Archie J Designs, Issue A dated 23 dated December 2013 and drawing Nos 369/04 to 369/09 in accordance with the conditions in annexure A.

  3. The Council is directed to issue a building certificate pursuant to s149F (3) (a) of the Environmental Planning and Assessment Act 1979 within 14 days from the completion of the building works and issuance of the occupation certificate.

  4. I note that proceedings matter number 13/10695 (which concerns the order appeal in respect of the same site) is adjourned for a period of eight months until 14 March 2015.

Susan Dixon

Commissioner of the Court

10768 of 2013 - Annexure A (61.3 KB, pdf)

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Decision last updated: 05 March 2015

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