Chapman v Warringah Council - [2010] NSWLEC 1339

Land and Environment Court

of New South Wales

CITATION: Chapman v Warringah Council [2010] NSWLEC 1339

PARTIES:
APPLICANT
Brian and Melissa Chapman
RESPONDENT
Warringah Council

FILE NUMBER(S): 10696 of 2010

CORAM: Tuor C

KEY ISSUES: BUILDING CERTIFICATE :- unauthorised works
impact on residential amenity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Warringah Local Environmental Plan 2000

CASES CITED: Ireland v Cessnock City Council [1999] NSWLEC 250
Taipan Holdings Pty Limited v Sutherland Shire Council [1999] NSWLEC 276

DATES OF HEARING: 21 October 2010

EX TEMPORE JUDGMENT DATE: 21 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Staunton, barrister
RESPONDENT
Mr N Howie, solicitor
of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

21 October 2010
10696 of 2010 Chapman -v- Warringah Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (council) of a building certificate application under s 149F of the Environmental Planning and Assessment Act 1979 (EPA Act) for unauthorised building works at 20 Ian Lane, North Curl Curl (the site).

2 The unauthorised works in the building certificate application relate to changes to floor levels and consequential changes to walls and roofs approved under development consent 2005/398 (development consent) for a new residential dwelling.

3 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the council.

4 A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 18 October 2010 and adjourned for further information until 21 October 2010. The parties did not reach agreement and the conciliation conference was terminated. The parties agreed to my disposing of the proceedings under s 34(4)(b)(i) and that the evidence on site and the site inspection would be considered as evidence in the proceedings.

Evidence

5 The Court heard evidence on site from residents who both supported and objected to the proposal. The residents who objected were principally concerned that the development had not been constructed in accordance with the consent. They noted that the development assessment had been a long process which had involved changes to the application and that the "illegal works” undermined the process.

6 The adjoining neighbours at 22 Ian Lane was concerned that the development consent had already severely impacted on their amenity and that the changes would have further impacts. In particular, they considered that the increase in height of the south eastern wall by 900 mm and the southern wall by 600 mm would increase the bulk of the building, reduce solar access into their north facing side windows and eliminate their views of the sky.

7 The owner of 24 Ian Lane was concerned about the bulk of the building and the loss of views from the increased roof height. The adjoining owner at 18 Handoube Parade considered that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1339
Decision Date: 21 October 2010

CaseChat Overview and Summary

Brian and Melissa Chapman appealed the Warringah Council's refusal of a building certificate application for unauthorised building works at 20 Ian Lane, North Curl Curl. The unauthorised works related to changes in floor levels and consequential changes to walls and roofs that were approved under a development consent from 2005. The Chapmans argued that the changes did not significantly impact the residential amenity of the neighbours and should be approved. The council opposed the application, arguing that the changes deviated from the approved plans and would negatively affect the neighbouring properties.

The court had to decide whether the unauthorised works had a material impact on residential amenity and whether the proposal was acceptable under the Warringah Local Environmental Plan 2000. The court considered evidence from expert planners and residents, and it was agreed that the changes were minor and did not significantly impact the residential amenity of the neighbours. The planners also agreed that the proposal was consistent with the planning controls and the desired future character for the locality.

The court accepted the expert planners' evidence that the impact of the proposal was acceptable and that the changes did not result in material impacts in terms of bulk, overshadowing, or view loss. The court found that the proposal had acceptable impacts and met the planning controls in the LEP 2000. The court also accepted the evidence that the privacy screen should extend at an additional 500mm height for a length of 5.7 m to provide acceptable privacy to both dwellings. The court concluded that a building certificate may be issued, subject to the changes being accurately shown on the plans.

The court ordered the applicant to serve the building certificate plans and Short Minutes of Order within seven days. The parties were to file the agreed Short Minutes of Order and plans within seven days of the date of service of the direction. The court granted liberty to restore on two days' notice and final orders were to be issued in chambers upon receipt of the agreed Short Minutes of Order and plans.

Orders