Bown v Canada Bay City Council

[2004] NSWLEC 739

Land and Environment Court

of New South Wales

CITATION:	Bown v Canada Bay City Council [2004] NSWLEC 739
PARTIES:	APPLICANT Russell and Susan Bown v Canada Bay City Council
FILE NUMBER(S):	10797 and 10798 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- In Appeal 10797 of 2004 - appeal against a s 121B Order - in Appeal 10798 of 2004 - daylight and amenity impacts on neighbours - streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Drummoyne Local Environmental Plan 1986 Drummoyne Comprehensive Development Control Plan
CASES CITED:
DATES OF HEARING:	29/10/2004
EX TEMPORE JUDGMENT DATE :	12/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms F Sinclair, solicitor SOLICITORS Williams & Company RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 December 2004

10797 & 10798 of 2004 Russell & Susan Bown v
Canada Bay City Council

JUDGMENT

1 This judgment is in regard to two appeals heard simultaneously.

2 The first was appeal No. 10797 of 2004 between Russell Bown and Susan Bown v The City of Canada Bay Council. It was an appeal against conditions of approval of s 96(2) Development Application No. 409/00.

3 The second appeal was between the same parties and was appeal No. 10798 of 2004 against an Order to Demolish issued under s 121B of the Environmental Planning and Assessment Act 1979, the order being No. 15 thereto.

4 The property was 50 Russell Street, Russell Lea. It was a large two storey house that had been built as major extensions and alterations to an existing single storey house.

5 The details of the order to demolish were:

(1) Remove the unauthorised storage mezzanine that has been added to the garage.
(2) Remove the unauthorised extension to the garage.
(3) Remove the unauthorised roof extending from the garage described as an awning.
(4) Remove the unauthorised dark grey roof tiles that have been installed in lieu of terracotta tiles.

6 The conditions appealed against in the s 96 amendment consent were conditions (b) and (c). They stated:

(b) The council does not approve the following illegal works and resolves to take all necessary legal action to have those works reinstated to be consistent with the development consent 409/00.

and the condition then lists the items for demolition as already stated.

(c) That council as the responsible authority resolve to modify development consent No. 409/00 on land at 50 Russell Street, Russell Lea, insofar as will provide for those matters identified in clause (b) above.

7 The respondent’s issues in both appeals were:

(1) Whether the extension to the garage including the extended roof or awning over the garage is unacceptable.
Particulars :
The unarticulated length of the garage wall is contrary to council’s development control plan which provides a maximum unarticulated wall length of twelve metres, the wall length as constructed is 13.2 m, the extended garage is unacceptably bulky and too long, particularly having regard to its impact on the immediately adjoining neighbour and the extended garage gives rise to overshadowing to the immediately adjoining neighbour.
(2) Whether the use of dark grey concrete roof tiles in lieu of terracotta tiles is unacceptable.
Particulars :
The dark grey roof tiles are uncharacteristic of roof tiles of dwelling houses in the immediate vicinity and have a detrimental impact upon the streetscape, particularly having regard to the size of the roof area and its high visibility within the street.

(3) Matters of public interest and matters raised by objectors.
Particulars :
The extended garage and roof area together with the different tiles to the roof area are works which were undertaken not in accordance with the terms of development consent No. 409/00 of 16 April 2001. Such works have an unacceptable impact on the amenity of adjoining neighbours and the streetscape and accordingly is not in the public interest to allow such works to remain.

8 The applicant’s issues in appeal 10798 of 2004 were:

(1) Whether the extension to the garage has any adverse impacts on the amenity of the neighbouring property.

Particulars :


(i) The single storey garage extension does not significantly increase the bulk of the approved dwelling in circumstances where the structure has been set back a distance of one metre from the side boundary, a distance in excess of the required 900 mm prescribed by the council’s development control plan.

(ii) The increased length of the constructed garage is acceptable as the wall length is single storey and is unable to be viewed from the public domain and has minimal environmental impact.

(iii) The garage continues to comply with the comprehensive development control plan requirement as north facing windows of adjoining properties receive adequate solar access.
(2) Whether the unauthorised roof described as an awning has any adverse impacts on the amenity of the neighbouring property.
Particulars :
(i) The awning does not significantly increase the bulk of the approved dwelling in circumstances where the garage has been set back a distance of one metre from the side boundary, a distance in excess of the required 900 mm prescribed by the council’s development control plan.

(ii) The awning is acceptable as the wall length is single storey and is unable to be viewed from the public domain and has minimal environmental impact.

(iii) The garage continues to comply with the comprehensive development control plan requirement that north facing windows of adjoining properties receive adequate solar access.


(3) Whether the grey roof tiles have any adverse impact on the amenity of the neighbouring properties.

Particulars :

(i) The grey colour of the tiles is characteristic of other roof tiles in the neighbourhood.

(ii) The grey colour of the tiles has no adverse impact upon the streetscape.

(iii) Terracotta tiles come in a range of colours, including grey.

(iv) There is no discernible difference between grey terracotta tiles and grey concrete tiles.

(v) The use of grey concrete tiles is reasonable in view of the site not being a heritage item and not being located within a conservation area.

9 Apart from these items under dispute, there were several other non-compliant aspects compared to the original consent and the council at the time of granting the s 96 amendment had agreed to them. At the on-site hearing, the Court was told that conditions on those approved changes had not yet been complied with.

10 The hearing was attended on site by several objectors and their evidence was taken there. The house No. 52 Russell Street on the east side of the subject was visited to observe the neighbours’ concerns. The Court was taken on a walk to see the streetscape in the vicinity of the subject site.

11 A Court appointed expert town planner Mr Kennan prepared a report and overall recommended in favour the applicant. Council officers had also recommended approval as contained in Exhibit 2 in reports at pp 14 and 35. During the hearing the respondent deleted its concern about the mezzanine storage area in the garage, however the other items remained at issue.

12 Between the garage extension in dispute and the swimming pool enclosure there was a paved area in the yard at the same level as the garage floor such that a vehicle could come through the rear door of the garage onto the paved area. The plans of the original consent showed this paved area as soft landscaping. The applicant said the paving was an approved amendment. The respondent did not agree for several reasons. The Court observed that the paving was not mentioned in the s 96 amendments or s 121(b) order. The parties agreed it would have to be dealt with by another procedure and was not part of this hearing.

13 The locality of the subject site is zoned Residential 2A under the applicable statute being the Drummoyne Local Environmental Plan 1986. Since the amalgamation of Drummoyne with Concord Council the responsible authority became Canada Bay City Council. The applicable controls were in the Drummoyne Comprehensive Development Control Plan, Guidelines for Residential Development, cl 6.1 says:

aims to provide a clear performance-based guide to residential development with a focus on desired outcomes.

14 The relative general objectives of this section is:

05 minimise the negative impacts of development on the amenity of adjoining properties.

15 There are performance criteria in cl 6.5:

P1 Building siting should ensure the views, amenity, and privacy and solar access for existing developments are maintained,
P11 Contemporary alterations and additions where appropriate are to be limited to rear extensions.

16 Minimum standards applicable are:

M5 side boundary setbacks for all building walls are a minimum of 900 mm for a single storey and 1.5 m for two storey dwellings,
M7 maximum unarticulated wall length 12 m

17 On solar access and overshadowing cl 6.9 says:

Residential developments should consider the orientation of siting to maximise solar and daylight access to living spaces and to minimise the degree of overshadowing of its neighbours.

18 There is no definition of living spaces in the DCP, however I assume that this equates to “habitable room” which is defined as:

Habitable room means room in a dwelling house used for normal domestic activities that includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom and sunroom but excludes a bathroom, laundry, water closet, food storage pantry, walk in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes drying room and other places of a specialised nature occupied neither frequently nor for extended periods.

19 The objectives of the solar access and overshadowing section of the Development Control Plan are:

01 to maximise sunlight to living spaces in order to improve residential amenity,
02 to ensure that daylight access is provided to all habitable rooms and other areas to improve amenity and energy efficiency,
03 to minimise the amount of overshadowing of neighbouring developments and outdoor spaces to maintain their amenity.

20 The relevant minimum standard is:

M2 New development including additions and alterations should be sited so that north facing windows of neighbouring properties receive at least three hours of sunlight between 9 am and 5 pm on 21 June.

21 Mrs Lopez lived next door at 52 Russell Street. Her house was slightly downhill of the Bown house and was probably of 1920s vintage. Mrs Lopez’ bedroom window was opposite the disputed extension to the garage. In the original approval the garage would have commenced just past the southern side of her west facing window and would extend southwards from there. Her kitchen also had a west facing window, and there were others to the back garden.

22 She said previously she had enjoyed good light into her bedroom, but the garage extension and the cantilevered awning roof had drastically reduced that, and she felt they caused loss of daylight that did not previously occur.

23 In the backyard she said the swimming pool had been built close to the boundary and about 500 mm above ground level at the fence line. Water splashed from the pool and drained to the fence and into her property. Often big splashes cleared the fence and the water and the drainage came into her outdoor covered area that was adjoining the boundary and the pool. Her covered area pre-dated the pool by many years and was a popular place for family and friends’ outdoor eating and relaxation. She said the noise and activity of children in the pool and the splashes and draining water had heavily impacted the amenity and enjoyment of her own back yard.

24 She noted that the consent required works that had not been built, some of which were a fence to prevent people on the pool surrounds being able to look over the fence easily into her previously private outdoor covered area. This reduction of privacy was due to the elevation of the pool beside the boundary. The pavement around the pool in 50 Russell Street was only 1.3 m below the top of the existing fence. Previously the fence had been a full 1.8 m high within 50 Russell Street so there used to be privacy in No. 52.

25 There was also a condition requiring a brick dwarf wall on the edge of the pavement around the pool beside Mrs Lopez’ boundary to stop water draining onto her land. There were also to be privacy screens on the upstairs balconies of the house at the rear, but these have not been installed and allow looking into her yard.

26 These and other concerns of Mrs Lopez were not the subject of this hearing. The applicant said it was awaiting the outcome of this hearing so all matters could be dealt with at the same time.

27 Mrs Lopez said the incomplete matters and the unauthorised works illustrated the frustration and amenity impacts her family had suffered for many months.

28 Directly related to the unauthorised garage extension it was noted a downpipe on the corner of the garage was not connected to the underground drainpipe and so stormwater from the downpipe ran through the fence onto Mr Lopez’s property. She said it kept her western side wall damp. The applicant said it too was awaiting the outcome of this hearing as the downpipe was at the corner of the garage extension.

29 Mr Kennan the Court appointed town planner had produced a report on the garage extension and the cantilevered awning roof. He said the main part of the garage had a second storey of the house above it. That should have had a 1.5 m side boundary setback but council had approved it with 2-storey a 1 m setback. The unauthorised garage extension was in line with the side wall, but it was only one storey and the minimum setback required was 900 mm so to that extent it complied. It did make the unarticulated wall length 13.2 m, but that could not be seen from the street, so Mr Kennan thought the streetscape and visual bulk aspects of the Development Control Plan were not offended by the non-compliance.

30 On overshadowing he noted that the council control only set solar access standards for north facing windows, and Mrs Lopez’ bedroom was west facing. Because the Lopez house was downhill of the Bown's he thought any structure including the old garage (now demolished) on the Bown property would have shadowed the window.

31 In considering this and having seen the impact on the interior of the Lopez house the Court could appreciate Mrs Lopez’ evidence. It was important to note that the Drummoyne Comprehensive Development Control Plan makes a distinction between sunlight, that is the direct rays of the sun, and daylight that is the ambient light not being direct rays. The standards for north facing windows apply to sunlight, that is the direct rays of the sun. For other habitable rooms objectives 02, 03, and performance criteria P2 and P3 apply. The master bedroom window was such a window.

32 The original approval of the Bown house with the garage and the house set to the south of the Lopez master bedroom window would have produced a far greater sense of airiness and space and daylight as seen from inside the bedroom. As built, the unauthorised garage extension and awning roof created a strong sense of enclosure and loss of daylight. Whilst there was some access to direct sunlight in the afternoon, this was not the feature that was necessarily dominant in consideration of access of daylight to the habitable room. Compliance with the direct sunlight access provisions of the Development Control Plan did not exonerate a development from needing to meet reasonable performance levels on other provisions. For example, cl 6.1 general objective 05 and performance criteria cl 6.5 P1, and in cl 6.9 objectives 02 and performance criteria P3.

33 The construction of this very large house compared to what previously existed on the site was always going to have some adverse impact on its neighbours. It is a matter of balancing what are reasonable impacts and what are unreasonable. The removal of the previously existing carport and garage from the Bown property and the relocation of the bulk of the new two storey house to the south of the Lopez master bedroom window was an implicit, if not, a conscious amenity compensation to the Lopez for some of the adverse impacts of the new Bown house.

34 It should be remembered the standards set are minimum standards. It does not preclude achievement in a design of conditions better than the minimum. Also, the hours of solar access set for north facing windows does not exclude consideration of daylight access to other windows with other orientation.

35 There is legal precedent for comparing any s 96 amendment with the original approval in determining whether a change is reasonable. In this case the original consent showed a landscaped garden area outside Mrs Lopez’ master bedroom and kitchen windows where she now has a garage wall one metre off the boundary in the bedroom, and concrete paving right to the boundary outside the kitchen with no potential for landscaping. The impacts have not been minimised as sought by the controls, the s 96 amendment would increase the impacts.

36 To permit an unauthorised structure that has such adverse impacts on amenity is not reasonable. The garage extension and awning roof should be removed.

37 In regard to the concrete grey coloured tiles versus the council condition requiring terracotta roof tiles, the applicant put that the condition only meant tiles of terracotta material and the surface finish of them could come in many colours including grey, and that given a grey colour, both terracotta or concrete tiles looked the same. The Court was shown several examples nearby of concrete tiles and colours other than the orange of terracotta. The site was not in a conservation area and not near a heritage item. It was said the diversity of roofs in the area meant the council condition, if it did mean orange colour, would not achieve much in the streetscape.

38 Mr Kennan did agree he would have interpreted the council condition to mean roof tiles of orange colour, and made out of terracotta. The Macquarie dictionary third edition handed up to the Court indicated similar meanings. The original development assessment reporting officer, named Ellen Robertshaw, said in describing the original house and locality:

Number 50 is opposite a public reserve. The dwellings either side of the subject property are both single level Californian bungalow style residences. Architectural styles along Russell Street vary considerably. There is also a mixture of single and two storey dwellings along the length of Russell Street. The existing dwelling is rendered brick coloured grey with a grey tile roof. It does not complement the adjoining dwellings in its present form.

39 In assessing design and bulk of the original application and objections to it, she said:

Design and bulk of development. Given that the adjoining dwellings are both single storey the proposed development will appear obviously larger. However it is noted that there are a number of other similar scenarios along the length of Russell Street. As such, the proposal will not be out of character with other development in the area. The existing dwelling on the subject land does not complement the adjoining dwellings in its present state, Grey rendered brickwork with concrete tile roof. Therefore even though the proposed development is not in keeping with the California bungalow look of these dwellings, it certainly does not exacerbate the situation. The design of the proposal with a hip roofline and recessed balcony along the front elevation has achieved …

40 The Court noted that the last sentence of that assessment appears to be unfinished, and the council officer’s final conclusion on the matter is unknown. In view of her earlier comments it appears most unlikely a grey tiled roof would have been her recommendation for approval, and the plan stating the roof tiles were to be terracotta would have conveyed to her that it was to be orange colour.

41 That said, on the original approved plans there are four notations that roof tiles are to be “selected terracotta”, and one notation saying “reconstituted slate-type roof tiles”. In Exhibit C, a brochure on terracotta tiles, there was a roof tile designed to look like slate roofing, but it is available in colours including two orange colours called Earth and Aurora. So the note on the plans saying slate-type tiles must refer to the shape of the tile not the colour, but in any event the applicant did not use slate-type roof tiles. The ones on the roof are Swiss or Roman type, and they are not made of terracotta.

42 The only specific condition to require terracotta is condition 1 of the consent which requires the construction in accordance with the plans. There is, however, condition 25 of the consent that required a schedule of external finishes including type and colour must be submitted with the construction certificate for separate approval of the principal certifying authority prior to the release of the construction certificate. The Court was not given any evidence of this condition ever having been complied with. The council officer’s report on the s 96 application with the author’s initials PLD said in regard to the changes to the building:

The amendments to the external finishes have completely changed the character of the two storey house. Comment: this statement is acknowledged. The use of black roof tiles in lieu of terracotta roof tiles, aluminium windows in lieu of timber windows, and glass balustrades in lieu of wrought iron all changed the presentation of the dwelling. Russell Street is predominantly characterised by inter-war bungalows with a consistent scale and appearance. Nevertheless, as the site is not a heritage item and is not contained within a conservation area, the amendments to the external finishes of the dwelling are not unreasonable.

43 Mr Kennan in his report said:

During an inspection of the site and the surrounding area I observed that the tiles which have been used in the construction of dwelling houses in the immediate vicinity of the site comprise a variety of both materials and colours. There is no dominant material of roof tile nor colour of roof tile in the immediate area. Indeed the roof tiles on the adjoining dwelling house at No. 48 Russell Street are not dissimilar to those which have been used in the amendments to the subject dwelling house. I have observed that there are a number of dwelling houses in Russell Street which have concrete roof tiles, and indeed many have roof tiles of a dark grey or similar colour to that of the subject dwelling house. I am of the opinion that the dark grey colour of the roof tiles used in the construction of the subject development is not uncharacteristic of roof tiles of dwelling houses in the immediate vicinity. I do not consider that the use of those roof tiles will have an adverse impact on the streetscape to warrant refusal of the application.

44 Turning to the Drummoyne Comprehensive Development Control Plan, the site is located in the Character Unit 3 Central Area of the Drummoyne peninsula. Its objectives are:

Description

The central area has an established, relatively consistent character. It is characterised by single detached housing which is consistent in scale but varies according to architectural trends and preferences in taste. Pitched roofs are the predominant roof form. The streets are generally wide and form a grid pattern. Most streets are lined with trees ranging in size from small to mature. This area contains a number of conservation areas.

Desired future character objectives

01 Maintain low scale suburban character of the area and a mix of housing styles.
02 ensure that the relative mature tree canopy is maintained.
03 encourage the use of brick and terracotta tiles as building material.

Performance criteria and minimum standards

P1 Development should comprise some pitched roof elements and reflect predominant surrounding roof forms.

45 The previous reports in regard to this matter, each acknowledged that the subject house is bigger than most in the locality and not particularly in character with them. The reports indicated the lack of compliance with the design and materials as originally approved and that has made it even less of a fit into the character of the area.

46 One aspect is the block of land is wider than most allotments in the street. The reason for this is not known, but the original consent, in allowing the two storey extensions with one metre side setback instead of the 1.5 m setback laid down in standard M5 of cl 6.5 has contributed to the house being a poor fit into the low-scale urban character.

47 The roof tiles are visible, particularly from up and down the street, and from across the road, and in the park opposite. In contrast to Mr Kennan, the Court found in travelling up and down the street whilst there are other houses with roofs of various ages, some of which use concrete tiles in colours other than terracotta orange, the most common roof tile is a terracotta orange colour.

48 The objectives of the Drummoyne Comprehensive Development Control Plan contain qualitative objectives as well as numerical controls. The evidence that this house does not fit very well into the desired future character objectives does not justify its departure under a s 96 amendment from the few aspects of its development consent conditions that would cause a better fit. The statute and controls are about achieving a better outcome in the future, notwithstanding what might have occurred in the past.

49 The parties agreed the s 96 amendment application items were severable.

50 Therefore, in regard to appeal No. 10797 of 2004 the orders of the Court are:

1. The appeal is upheld in part.

2. That Condition B of the s 96(1)(A) amendment determined by Canada Bay City Council on 4 May 2004 in respect of premises at 50 Russell Street, Russell Lea, is hereby altered by the deletion of the words:

“The unauthorised storage mezzanine added to the garage”.

3. The exhibits be returned to the parties except Exhibits A, C, 1, 3, 4, 5 and 9.

51 In regard to appeal No. 10798 of 2004 the orders of the Court are:

1. The appeal is upheld in part.

2. That the Order No.15 under s. 121B of the Environmental Planning and Assessment Act 1979 issued by the City of Canada Bay on 10 June 2004 in respect of premises at No. 50 Russell Street, Russell Lea, is hereby amended by the deletion of the words:

“Remove the unauthorised storage mezzanine that has been added to the garage”.

3. The exhibits be returned to the parties except Exhibits A, C, 1, 3, 4, 5 and 9.

________________
K G Hoffman
Commissioner of the Court
Nm/rjs