CSA Architects v Woollahra

[2004] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION:	CSA Architects v Woollahra [2004] NSWLEC 120
PARTIES:	CSA Architects Pty Ltd Woollahra Municipal Council
FILE NUMBER(S):	11466 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations and additions to an existing dwelling heritage impact visual impact
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan 23 Woollahra Local Environmental Plan 1995
CASES CITED:
DATES OF HEARING:	29/03/04
EX TEMPORE JUDGMENT DATE :	03/29/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Parry, barrister SOLICITORS Woolf & Associates RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11466 of 2003

Brown C

19 May 2004

CSA Architects Pty Limited
Applicant

v

Woollahra Municipal Council
Respondent

Judgment

Background

1 . This is an application for costs in relation to the Courts determination of DA 759/2003/1 (the application) for alterations and additions to the dwelling at 5 Victoria Street, Watsons Bay. The appeal was heard as an On Site Hearing on 29 March 2004 where it was determined that the appeal should be upheld and development consent granted subject to conditions. Notice of an application for costs was made at the hearing and the Court accepted that an order for costs may be fair and reasonable based on the evidence presented at the hearing. Directions were given for the filing and serving of written submissions.

The application

2 . The application proposes alterations and additions to an existing dwelling, generally involving:

construction of a glass and masonry addition to the southern side elevation,
construction of a new pedestrian entrance through the existing retaining wall,
replacement of the existing framed glass balustrading on the existing retaining wall and the first floor balcony, and
new smooth face sandstone wall to the existing brick retaining wall.
The issues


3 . The council filed a Statement of Issues containing 5 issues. Issues 1 and 2 dealt with the glass balustrading on the ground level retaining wall and first floor terrace and the detrimental impact to the heritage significance of the Watsons Bay Heritage Conservation Area and the visual amenity of Sydney Harbour. Issue 3 dealt with the inadequate southern boundary setback, Issue 4 with the public interest and Issue 5 with issues raised by objectors. At the hearing, only Issues 1 and 2 were pressed by the council.

The council's consideration

4 . The appeal was lodged as a deemed refusal and as I understand remained undetermined at the time of the hearing. The development application was however the subject of a delegated authority report from council officers. This report was dated 18 March 2004 and recommended refusal for two reasons. These reasons related to be unacceptable appearance of the proposed glass balustrading on the ground and first floor levels. Relevantly, the report states:
The proposed frameless glass balustrading is inconsistent with the provisions of Part 5.4, in that it would not be sympathetic to the historical context of the existing dwelling and heritage significance of the surrounding Watsons Bay Heritage Conservation Area. Further, the proposed frameless glass balustrading would be reflective and would appear solid when viewed from water. This would detract from the visual amenity of this section of the shoreline of the Watsons Bay Heritage Conservation Area and is unsatisfactory.


5 . This report also contains details of a previous development application submitted to the council on 9 July 2001. The report describes the previous application as "essentially the same proposal as that currently before the council" . The previous development application was approved on 23 November 2001 subject to conditions but has since lapsed. Notably, the development consent contained conditions requiring amendments to the balustrading on the ground level retaining wall and the first level balcony. In general terms, these conditions required the proposed glass balustrading to be replaced with a combination of steel and timber balustrades with tensioned stainless steel cables. An identical form of balustrade construction was required in the council's without prejudice conditions for the application.

The basis for an order for costs

6 . Prior to 2 February 2004, the practice of the Court was to award costs only where there were exceptional circumstances. From this date, the Land and Environment Court Rules (Amendment No 8) 2003 (the Rules) came into effect and amended the basis for costs in Class 1 cases. The relevant provision of Pt 16 of the Rules now reads:
(2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

7 . This change to the Rules was accompanied by an amendment to the Land and Environment Court Practice Direction 1993 that relevantly reads:

10. Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made, to that Commissioner or those Commissioner's (as the case may be).

Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order.


8 . In this case, the applicant has asked to Court to invoke the provisions of Pt 16 of the Rules.

The applicant's case

The applicant raised the following reasons why an order for costs should be successful:
the applicant succeeded in the appeal,
while the council raised heritage and planning issues in relation to the replacement of the balustrade, it called no expert or lay evidence in relation to this issue. The applicant contends it was unnecessary to go to the expense of having to call a qualified expert to address these issues,
the expert planning evidence the council sought to tender was contrary to Expert Witness Practice Direction 2003 or the previous Practice Direction, in that it did not contain an acknowledgement by the authors of their obligation to the Court, and
the issues ignored the reality of the situation in that the development application was only for alterations and additions and the existing unsympathetic balustrades could have been retained.


The respondent's case

9 . The respondent opposes an order for costs for the following reasons:
success in the appeal is not a basis for establishing fairness or reasonableness,
the respondent was under no obligation to file and serve any expert statement evidence. The council officers report could be considered a Position Paper and as such the Expert Witness Practice Direction does not apply,
while the respondent was unsuccessful in tendering the council officers report as a Statement of Evidence, the document would ordinarily form part of the council's bundle of documents. For this reason it is difficult to establish how the adducing of a council officers report would be unfair or unreasonable to the applicant, and
the appeal process allows each party to put their case to the Court and the relevancy of any matters is a matter for the Court to determine.


Findings

10 . In relation to the applicant's submission that costs should follow the result, I accept the respondent's submission that this is not, in itself, an indication of fairness or reasonableness.

11 . Combining the second and third reasons, the essential difference between the parties is whether the council adequately defended the issues it raised. The applicant contends that it did not, as it provided no expert evidence. The council contends that the issues are adequately defended through the contents of the council officers report.

12 . It has been the practice in Class 1 matters for both parties to provide expert evidence on issues in the expectation that the Court will adjudicate on this evidence. However, as the Chief Judge has made plain, such an approach is not necessary in all cases. It must also be remembered that the Court brings a level of specialist knowledge to Class 1 proceedings because of the qualifications and experience required of a Commissioner by s 12 of the Land and Environment Court Act 1979 (the LEC Act). Additionally, s 38(1) of the LEC Act states Class 1, 2 and 3 proceedings "shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matter for the Court permit". Clearly, the emphasis is on the content and quality of the evidence that will allow the Court to carry out its statutory duty rather than the exclusive use of expert reports. In many, cases an issue raised by the council will be sufficiently supported by an understanding of the plans and an appreciation of the site and its environment. Although the calling of an expert may add another opinion about the matter it may add little if anything to the knowledge that the Court may need to resolve the issue.

13 . In this case, the council supported and explained the issues through the tender of the council officers report. The position, which the council adopted in relation to the balustrade, comes from the council's Heritage Officer, Mr Zoltan Kovacs. Although Mr Kovacs is no longer employed by the council, his report was used in the first application and replicated in the current application. While the Court did not form the same view as Mr Kovacs, I accept that the amendments sought by Mr Kovacs had some merit and were not entirely without a rational basis.

14 . Mr Rigg correctly submits that there is no obligation on any party to the proceedings to tender expert evidence. Indeed, as I have indicated earlier, the Chief Judge has on a number of occasions expressed concern that a "culture" has developed where expert evidence is thought to be required before a party can expect to succeed on an issue. This is clearly not the case. If there are deficiencies in an application these can be identified and explained to the Court which in many cases will not require expert evidence to understand the alleged difficulties or to come to view as to whether the proposed development should be approved.

15 . Mr Parry's submission that the council officers report could not be an expert report because it did not contain an acknowledgement by the authors that they had read the Practice Direction is correct, however it is not of great significance as the report was ultimately admitted into evidence as a document relating to the council's decision and accordingly of relevance to the proceedings.

16 . The applicant's submission that the opposition to the development application ignored the reality of the situation should be rejected. While the Court ultimately found in favour of the applicant on the merits, I am not convinced that the proposed development was not so lacking in merit as would justify an order for costs.

Orders

17 . For the foregoing reasons, the application for an order for costs is dismissed.

________________
G T Brown
Commissioner of the Court
Rjs


Conditions of Development Consent

Annexure A

CSA Architects Pty Ltd
v
Woollahra Municipal Council

PROPERTY: 5 VICTORIA STREET, WATSONS BAY



The Development application has been determined by granting of consent for Alterations and additions under Section 80(1)(a) of the Act, subject to the conditions specified in this Notice.

The conditions of the consent are set our as follows:

1. Approved Plans

This consent relates to the work, shown on plan numbered DOM-01, dated 30/07/03, Rev A, drawn by CSA Architects, , except where amended by the following conditions.
2. Modification of the proposed first floor glass balustrading
Deleted
3. Detail and height of the proposed sandstone block facings to the existing retaining wall
The new sandstone block facings shall not be smooth & saw-cut, as proposed instead they shall have a rock faced finish.

This condition has been imposed to preserve and enhance the visual amenity of the shoreline of the surrounding Watsons Bay Heritage Conservation Area as viewed from the waters of Sydney Harbour, the Camp Cove beach frontage of the site and other areas of the public domain.

4. Modification of the proposed glass balustrading over the retaining wall
Deleted
5. Requirement for a Construction Certificate


In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979, the erection of the building must not be commenced until:

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:

(i) Council; or

(ii) an accredited certifier; and


(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

(c) at least two days notice, in writing, has been given to Council of the intention to commence work.

6. Materials
Details of the colour, texture and substance of all external materials must be submitted to Council or the accredited certifier prior to the issue of a Construction Certificate and are to be to the satisfaction of an authorised Council assessment officer or the accredited certifier. For properties that are located in a Conservation Area or that are Heritage Items, the proposed materials must be to the satisfaction of Council's Heritage Officer.
7. Drawings to show levels and heights
The reduced levels of the ground floor, first floor and the overall height of the roof in relation to Australian Height Datum must be shown on the drawings submitted with the Construction Certificate Application to ensure that building construction complies with the development consent.
8. Structural adequacy
A statement from a qualified practising Structural Engineer, certifying to the adequacy of the existing structural members, walls and footings to support the additional loads imposed by the proposed development, must be submitted with the Construction Certificate application.

This condition is imposed to ensure the structural integrity of the proposed building work.

9. Demolition and construction hours
Demolition and construction work must not take place outside the hours of 7.00am to 5.30pm Monday to Friday and 7.00am to 1.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Noise from construction activities associated with the development must comply with the guidelines contained in the NSW EPA Environmental Noise Control Manual Chapter 171.
10. Building Inspections
The Applicant, Owner and Builder, jointly and severally, must ensure that they call their Principal Certifying Authority ("the PCA") to carry out such critical phase building inspections required by the PCA, the PCA Service Agreement and that the PCA is satisfied with the level of compliance achieved before the Builder proceeds to the next phase of construction. Ample notice of required inspections must be given to the PCA in accordance with the PCA Service Agreement. The Applicant, Owner and Builder must comply with the PCA Service Agreement (Service Contract) and any lawful direction given by the Principal Certifying Authority.

Note: It is the responsibility of the PCA to ensure that critical phase building inspections are undertaken in accordance with a PCA Service Agreement and issue to the Applicant, Owner and Builder appropriate Notice under Section 109L of the Environmental Planning & Assessment Act 1979 ("the Act") where any breach of this consent occurs. Failure of the PCA to issue such notice may result in Council taking action under Section 109V of the Act. Failure of the Applicant, Owner and Builder to comply with a PCA Service Agreement and comply with lawful directions of the PCA under this condition may result in Council issuing fines, notices, orders and commencing legal proceedings. Council will only enter into PCA Agreements with the Owner of the land being developed. Council, if appointed as the PCA, will report to the owner of the land being developed.

11. Stormwater disposal
Stormwater must be disposed of by an appropriate method specified in Council’s Draft Stormwater Development Control Plan and Local Approvals Policy. Details of the proposed method/s of disposal must be submitted with the Construction Certificate Application.
12. Long Service Levy Payment
A Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided prior to the issue of a Construction Certificate.

The Levy can be paid directly to the Long Services Payments Corporation or to Council.

13. Display of Council’s warning sign for soil and water management
Throughout the demolition, excavation, remediation, and construction # delete whichever is inappropriate period, Council’s warning sign for soil and water management must be displayed on the most prominent point of the building site, visible both from the street and site.

A copy of the sign is available from Council.

14. Stockpiles
Stockpiles of topsoil, sand, aggregate, soil or other material must not be located on any drainage line or easement, natural watercourse, footpath or roadway, or within the dripline of any Street Tree. Stockpiles within the construction site must be protected with adequate sediment controls, in accordance with Council’s Code for Sediment Control.
15. Standard for demolition
All demolition work must be undertaken in accordance with the provisions of Australian Standard AS2601-2001: The Demolition of Structures.
16. Site fencing
The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. Permits for hoardings and or scaffolding on Council land must be obtained and clearly displayed on site.
17. Damage security deposit
A security deposit of $4,000 for the cost of making good any damage to Council property caused as a consequence of the construction work, plus an administration fee of $150.00, must be paid to Council prior to the issue of the Construction Certificate. The security deposit, which may be in the form of a bank guarantee, has been calculated in accordance with the following schedule.

Estimated cost of work Deposit

Works up to $50,000 $2,000

Works in excess of $50,000 & up to $100,000 $4,000

Works in excess of $100,000 $4,000+$200/$10,000 estimated

cost>$100,000

Council may use all or part of the Damage Security Deposit to complete damage restoration works if they do not meet Council’s requirements.

18. Support for Council roads, footpaths, drainage reserves, etc
Council property adjoining the construction site must be fully supported at all times during all excavation, demolition and building construction works. Details of shoring, propping and anchoring of works adjoining Council property, prepared by a qualified Structural Engineer or Geotechnical Engineer, must be submitted for the approval of Council’s Development Engineer, or certified as structurally adequate by the accredited certifier, before the commencement of the works.

Backfilling of excavations adjoining Council property, or any void remaining at completion of construction between the building and Council property, must be fully compacted prior to release of the Damage Security Deposit.

19. Storage of materials and plant on Council’s footpath

Building, excavation or demolition materials and plant must not be stored on Council’s footpath and/or roadway unless prior written approval has been obtained from Council’s Development Engineer.
20. Public footpaths
A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footpaths fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of AUS-SPEC.

Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 “Traffic Control Devices for Work on Roads”.

If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may carry out remedial works and deduct the cost from the Damage Security Deposit.

21. Compliance with Building Code of Australia
(a) All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(b) This condition does not apply to the extent to which an exemption is in force under Clause 187 or 188, of the Environmental Planning and Assessment Regulation 2000, subject to the terms of any condition or requirement referred to in Clause 187 (6) or 188 (4) of the Regulation.

22. Residential building work
(a) Building work that involves residential building work (within the meaning of the Home Building Act 1989 ) must not be carried out unless the principal certifying authority (PCA) for the development to which the work relates:
in the case of work to be done by a licensee under that Act:
(i) has been informed in writing of the licensee's name and contractor license number; and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act; or

in the case of work to be done by any other person:

(iii) has been informed in writing of the person's name and owner-builder permit number; or
(iv) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act,

and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

Note: The amount referred to in paragraph (a) (iv) above is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $5,000. As those regulations are amended from time to time, so that amount may vary.

(b) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

23. Excavations and backfilling
(a) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

(b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

24. Retaining walls and drainage

If the soil conditions require it:

(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and

(b) adequate provision must be made for drainage.

25. Support for neighbouring buildings
(a) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:
(i) must preserve and protect the building from damage; and
(ii) if necessary, must underpin and support the building in an approved manner; and
(iii) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

(b) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

(c) In this condition, allotment of land includes a public road and any other public place.

26. Protection of public places
(a) If the work involved in the erection or demolition of a building:
(i) is likely to cause pedestrian or vehicular traffic on a public place to be obstructed or rendered inconvenient, or
(ii) building involves the enclosure of a public place;
(iii) a hoarding or fence must be erected between the work site and the public place.

(b) If necessary, an awning must be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

(c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

(d) Any such hoarding, fence or awning must be removed when the work has been completed.

Note: Prior to the erection of any hoarding, fence or the like on any footpath or other property owned or controlled by Council, permission must be sought and obtained from Council and the prescribed rental fee paid.

27. Signs to be erected on building and demolition sites
(a) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:
(i) stating that unauthorised entry to the work site is prohibited; and
(ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

(b) Any such sign must be removed when the work has been completed.

(c) This clause does not apply to:

(i) building work carried out inside an existing building; or
(ii) building work carried out on premises that must be occupied continuously (both during and outside working hours) while the work is being carried out.
28. Residential building work over $12,000 in value
Council must be provided with the following information prior to the commencement of any works;

(a) the proposed builder's details (in writing); and

(b)proof of payment of the required insurance premium pursuant to Part 6 of the Home Building Act 1989.

Reasons for Conditions:
To safeguard the future and present amenity of the locality.

OTHER APPROVALS This consent does not include any other approvals granted under Section 78A(5) of the Environmental Planning and Assessment Act 1979.

NOTES:

(1) To ascertain the date upon which the consent becomes effective refer to Section 83 of the Act.

(2) To ascertain the extent to which the consent is liable to lapse refer to Section 95 of the Act.

(3) Section 82A of the Act confers on the applicant a right to seek review of Council’s determination provided that such is undertaken by way of an application made to Council pursuant to Section 82A of the Act within 12 months of the determination. However, there is no right of review under Section 82A of the Act in respect of Designated or Integrated Development.

If you have any enquiries, please contact our Assessment Officer, Mr R Byrne, on 9391-7162 between 8.30am and 11.00am Monday to Friday.

ADVISINGS:
You will also need to have regard to the following requirements:-
1. Application for a Construction Certificate
The required Application for a Construction Certificate may be lodged with Council. Alternatively, you may apply to an accredited private certifier for a Construction Certificate.
WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is also a criminal offence which attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

2. Occupational Health and Safety

All site works must comply with the occupational health and safety requirements of the NSW WorkCover Authority.
3. Relocation of stormwater drainage
Council is not responsible for the cost of relocating Council’s stormwater drainage pipes through the subject property.
4. Modifications to the consent
Changes to the external configuration of the building, changes to the site layout or any changes to the proposed operation or use will require the submission and approval of an application under Section 96 of the Environmental Planning & Assessment Act 1979 before the issue of a Construction Certificate.
5. Tree preservation
Where tree work has not been approved by this Development Consent the developer is notified that a general Tree Preservation Order applies to all trees in the Municipality of Woollahra with a spread of branches greater than three (3) metres and also on all trees, irrespective of the spread of branches, with a height greater than five (5) metres. This order prohibits the ringbarking, cutting down, topping, lopping, pruning, transplanting, injuring, or wilful destruction of such trees except with the prior written consent of the council. Written consent from Council for such tree works must be in the form of a Tree Preservation Order Permit for Pruning or Removal of Protected Trees obtained from the Parks and Streetscape Section of Council.
6. Long Service Levy (To accompany the above as an advising)
The current rate of the levy required by this consent is 0.2% of the cost all building and construction work costing $25,000 or more.

__________________

G T Brown
Commissioner of the Court
rjs