Danidis v Council of the City of Ryde Council

[2019] NSWLEC 1073

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Danidis v Council of the City of Ryde Council [2019] NSWLEC 1073
Hearing dates:	1 February 2019
Date of orders:	19 March 2019
Decision date:	22 February 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	Directions (see [44])  Orders (see [48])
Catchwords:	BUILDING INFORMATION CERTIFICATE APPLICATION: Secondary dwelling; height of building; dwelling ‘as built’ differs from approved plans.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Gosling v Penrith City Council [2016] NSWLEC 1288
Texts Cited:	Ryde Development Control Plan 2014
Category:	Principal judgment
Parties:	Poppy Danidis (Applicant) Council of the City of Ryde (Respondent)
Representation:	Solicitors: C Rose, Swaab Lawyers (Applicant) P Kapetas, Sutherland Shire Council (Respondent)
File Number(s):	2018/361350
Publication restriction:	No

Judgment

1. COMMISSIONER: Poppy Danidis (the Applicant) has appealed the refusal of the Council of the City of Ryde (the Respondent) to issue a Building Information Certificate (No. BC2018/0032) in relation to works carried out under Development Consent LDA 2017/0260 (dated 30 November 2017) and Constructions Certificate CC18/2/1 (issued on 27 March 2018), concerning the construction of a secondary dwelling (the proposed development) at 32 Morrison Road, Gladesville (the Subject Site).

2. The Subject Site is:

1. located on the south eastern side of Morrison Road;

2. has an area of 613m2; and

3. is zoned R2 Low Density Residential under Ryde Local Environmental Plan 2014 (RLEP).

3. The proposed development is for construction of a secondary dwelling through the addition of a first storey above an existing garage at the rear of the Subject Site, and which would include:

1. two bedrooms;

2. a lounge room;

3. a bathroom/laundry; and

4. a kitchen;

4. This appeal concerns the Respondent’s refusal to issue a building information certificate under Part 6 of the Environmental Planning and Assessment Act 1979 (EP&A Act), subject to the provisions of s 8.25 of the EP&A Act.

5. The appeal is heard under s 34(4)(b)(i) of the Land and Environment Court Act 1979 (LEC Act).

6. The Court convened a conciliation conference with the Parties, which was held on-site and at Court, on 1 February 2019.

7. During the on-site view the following individuals, who had both made written submission to Council in response to notification of the proposed development, made oral submissions to the Court in relation to the appeal:

1. Mr Todd Percy, an owner and resident of a lot adjoining the side of the Subject Site, who said that:

1. during the construction of the secondary dwelling he had made ‘a series of objections’;

2. the impact of the breach of the approved height, and encroachment of the secondary dwelling into the approved side setback, should not be accepted as it gave rise to unacceptable impacts on his property;

3. the impacts created by the ‘as built’ height and side setback breaches compared to the height and side setback in the approved plans would include increased overshadowing of his property;

4. he wished to see the ‘as built’ secondary dwelling modified such that it would comply with the approved plans for the development.

2. Mr Dan Concannon, an owner and resident of a lot to the rear of the Subject Site, who said that:

1. he was concerned that the windows at the rear of the upper storey of the proposed development would enable a resident of that structure to look into his rear yard;

2. he was concerned that the breach of height of the secondary dwelling compared to the height in the approved plans would impact on his property, particularly in relation to overshadowing;

3. he also wished to see the ‘as built’ secondary dwelling modified such that it would comply with the approved plans for the development.

Statutory Considerations

Environmental Planning and Assessment Act 1979

8. As discussed above at [4], this appeal addresses a refusal to issue a Building Information Certificate under s 8.25 of the EP&A Act which provides as follows:

(1) An applicant:

(a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3) On hearing the appeal, the Court may do any one or more of the following:

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

.

State Environmental Planning Policy (Affordable Rental Housing) 2009

9. The proposed development is for construction of a secondary dwelling and so requires consideration under Part 2 Division 2 of State Environmental Planning Policy Affordable Rental Housing 2009 (SEPP ARH).

10. The aims of SEPP ARH are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

11. Part 2 of SEPP ARH provides certain standards with respect to development for the purposes of a secondary dwelling on a range of land use zones, including land zoned R2, the zoning of the Subject Site.

12. The Parties agreed that the proposed development was consistent with the provisions of SEPP ARH with respect to secondary dwellings, including those in cl 9 of Schedule 1 in SEPP ARH, which provides development standards with respect to side setbacks as follows:

(1) Development for the purposes of a secondary dwelling or ancillary development must not result in a new building or a new part of an existing building or any new carport, garage, balcony, deck, patio, pergola, terrace or verandah having a setback from a side boundary of less than the following:

(a) 0.9 metres, if the lot has an area of at least 450 square metres but not more than 900 square metres,

(b) 1.5 metres, if the lot has an area of more than 900 square metres but not more than 1500 square metres,

(c) 2.5 metres, if the lot has an area of more than 1500 square metres.

(2) Development for the purposes of a secondary dwelling or ancillary development that involves the construction of a new building or additions to an existing building where the new or existing building will, at the end of the development, have a building height at any part of more than 3.8 metres must not result in the new building or any new part of the existing building or any new carport, garage, balcony, deck, patio, pergola, terrace or verandah, having a setback from a side boundary of less than the sum of:

(a) the amount of the setback specified for the relevant sized lot in subclause (1), and

(b) an amount that is equal to one-quarter of the additional building height above 3.8 metres.

Ryde Local Environmental Plan 2014

13. Development on the Subject Site is subject to the provisions of Ryde Local Environmental Plan 2014 (RLEP), under which the Subject Site is zoned R2 Low Density Residential.

14. The objectives of the R2 zone are:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide for a variety of housing types.

15. Within this R2 zone, a secondary dwelling, such as is proposed by the Applicant, is a permissible development.

16. The following further provisions of RLEP are also of relevance in this appeal:

1. Clause 4.3 concerning height of buildings, under which the Subject Site has a height of buildings development standard of 9.5m.

Ryde Development Control Plan 2014

17. Development on the Subject Site is subject to the provisions of Ryde Development Control Plan 2014 (RDCP), the purpose of which, as provided in the plan, is:

“to provide, in a consolidated format, guidelines, objectives and controls

relating to the future development of the City of Ryde.

The Plan provides detailed provisions relating to urban centres, special areas, specific sites, environment, engineering, administration and a variety of development types. It aims to achieve the best outcomes for all development permitted under Ryde Local Environmental Plan 2014.”

18. Part 3.3 of RDCP guides development associated with detached housing and dual occupancy (attached) development within the City of Ryde, and section 2.8.1 provides further guidance with respect to height controls for dwelling houses and dual occupancy. This section of RDCP:

1. confirms, consistent with the height of building control for land zoned R2 in RLEP, that the maximum height of building control for a dwelling house or dual occupancy (attached) building is 9.5m; and

2. establishes that the maximum wall plate height for a dwelling house or dual occupancy (attached) building is 7.5m; and

3. further establishes that maximum number of storeys for a dwelling house or dual occupancy (attached) building is two storeys.

Contentions

19. The Parties agreed that the principle contentions between them concerned the breaches of the ‘as built’ secondary dwelling in relation to:

1. its approved side setback to the boundary with the adjacent property at 30 Morrison Road which was 1.5m; and

2. the approved height of the secondary dwelling, which was 6.1m.

20. The Parties agreed that, notwithstanding these breaches, the ‘as built’ form of the secondary dwelling was compliant with the relevant setback development standard in SEPP ARH (see above at [11]) and the height of buildings standard in RLEP (see above at [16(1)]) and RDCP (see above at [18]).

21. During the on-site view, the expert planners Mr Ian Glendinning (for the Applicant) and Mr Kerry Nash (for the Respondent) confirmed evidence, provided to the Court in their joint expert report, in relation to the ‘as built’ secondary dwelling. This evidence included expert opinion on the potential impacts that may arise as a consequence of the differences in height and side setback between the ‘as built’ form of the development compared to the development as approved in the plans for which consent had been granted by the Respondent Council.

22. During the conciliation conference, the Parties agreed, based on the evidence of the expert planners, that:

1. in respect of the non-compliance of side setback of the first floor addition, this did not give rise to any additional impacts from overshadowing, nor loss of light or air, to the adjoining residence at 30 Morrison Road;

2. the non-compliance with the approved side setback could not give rise to any potential impact from overlooking as the first floor façade facing 30 Morrison Road did not contain any window opening;

3. there remained the possibility of direct overlooking of windows of the dwelling at 30 Morrison Road from the windows approved by the Respondent on the north eastern façade of the first floor addition. However, the expert planners agreed that these impacts could be remedied through the installation of obscure glazing to the upper window panels, to match the installed lower panels.

23. As a consequence of the evidence of the expert planners at [22], the Parties agreed that the contention in relation to setbacks was not a matter requiring resolution by the Court. Further, the Applicant embraced the recommendation of the planners at [22(3)] in relation to mitigating potential overlooking impacts to the adjoining property at 30 Morrison Road from the approved first floor windows of the secondary dwelling.

24. However, at the conclusion the conciliation conference, the Parties remained unable to resolve a contention in relation to the ‘as built’ height of the secondary dwelling.

25. More specifically, the Respondent said that the ‘as built’ addition to the garage at the rear of the Subject Site, exceeded the height of the approved plans by 200mm, and that this additional height had given rise to unacceptable bulk, scale and visual impacts on adjoining properties.

26. As this height related contention could not be resolved in conciliation, the conciliation conference was terminated. Under the provisions of s 34(4)(b)(i) of the LEC Act, the Parties consented to me disposing of the matter at a hearing held forthwith.

27. At the commencement of the hearing, the Parties once again confirmed that the only issue requiring resolution by the Court was whether the height of the ‘as built’ addition to the garage at the rear of the Subject Site, which, it was contended, exceeded the height of the approved plans by 200mm, was acceptable.

28. During the hearing the Respondent identified, within documentation submitted by the Applicant in support of its appeal, an inconsistency concerning the exact height of the ‘as built’ secondary dwelling.

29. In order to resolve this inconsistency, and to provide certainty to the Court concerning the quantum of the Applicant’s height breach, the Parties agreed that following the finalisation of the hearing, a further survey of the building would be undertaken to confirm its ‘as built’ height of the secondary dwelling, and thus the extent of the height breach compared to the approved plans.

30. Shortly after the conclusion of the hearing, the Parties filed the further survey which confirmed that:

1. the height of the ‘as built’ secondary dwelling was 6.42m, as compared to the approved height of 6.1m;

2. the breach of the ‘as-built’ secondary dwelling was, therefore, 0.32m higher than the plans for which the Applicant had been granted consent;

3. the breach in height represented a 5.2% exceedance against the approved height of the secondary dwelling, and is a 10% exceedance against the approved height of the additional first storey which created the secondary dwelling.

31. At the hearing, the Parties had agreed that:

1. if I determined that the height of the ‘as built’ secondary dwelling was acceptable, then the Applicant should be directed to prepare, and file with the Court, agreed plans of the ‘as built’ structure, which would then be the basis for the issue of a Building Information Certificate by the Respondent; or, in the alternative,

2. if I determined that the height of the as built secondary dwelling was unacceptable, the Applicant would be directed to:

1. undertake works to modify the ‘as built’ structure such that it would be consistent with the plans approved by the Respondent under LDA 2017/0260, and

2. prepare and file plans reflecting the modified ‘as built’ secondary dwelling with the Respondent Council, upon receipt of which, the Respondent would issue a Building Information Certificate following its review of the plans and having reached a conclusion that they, and the modified secondary dwelling as built, were satisfactory.

Is the height of the ‘as built’ addition to the garage at the rear of the Subject Site, which exceeds the height of the approved plans by 320mm, acceptable?

32. Further expert evidence on the contention concerning the height of the as built secondary structure was provided by Mr Nash and Mr Glendinning, as follows.

1. Mr Nash said that:

1. he was concerned about the visual dominance of the secondary dwelling when it was viewed from 30 Morrison Road; and

2. the height of the of the ‘as built’ structure when viewed from Morrison Road was an incompatible element in the streetscape. He said that this incompatibility was accentuated by the skillion roof form of the secondary dwelling.

2. Mr Glendinning said that:

1. the increased building height arising from the breach was not a dominant feature of the secondary dwelling;

2. the visual impacts arising from the breach in the approved height were minor, and no material impact was created by the building height breach; and

3. any impacts to the streetscape were minor and not discernible.

33. The detail of the final secondary dwelling survey levels (identified in red), including the breach, are provided in the following plan filed with the Court.

34. Mr Glendinning had also confirmed in his evidence at the hearing that, notwithstanding the inconsistency in documentation provided by the Applicant in the process of making the application for the Building Information Certificate, he did not consider that the ‘as built’ secondary dwelling, as viewed during the site view, gave rise to any additional visual impacts. He said that he held this opinion whether the difference were 200mm, as stated by the Respondent in its Facts and Contentions in this matter, or 350mm as might have been inferred from other documents submitted by the Applicant.

35. Having considered the evidence of the expert planners, and having visited the Subject Site to take a view the secondary dwelling from the street front and from the rear yards of the adjoining properties at 30 Morrison Road and 23 George Street, I have concluded that:

1. as confirmed by the expert planners, and in my assessment, there are no impacts arising from the ‘as built’ breach of approved side setback of the secondary dwelling;

2. the principle impact of the new secondary dwelling on adjoining properties, and most notably on the property at 30 Morrison Road, arises from its bulk and scale as perceived by adjoining residents of that property;

3. the bulk and scale, and therefore visual, impacts of the ‘as built’ secondary dwelling are not substantially attributable to the 320mm breach in approved height of that structure. The height breach in the ‘as built’ structure gives rise, in my assessment, to only minor, if any, additional impact, given that it is the approved secondary dwelling height which accounts for 95% of the overall bulk and scale of the ‘as built structure’, or 90% of the ‘as built’ additional floor.

36. In summary, I have concluded that:

1. the greatest impact, and offence, to neighbours arises, in my assessment, from that portion of the secondary dwelling height that was approved by the Respondent Council, and which represents some 95% of the final ‘as built’ form;

2. while the ‘as built’ breach in height would, by preference, have best been avoided through a construction that was consistent with the approved plans, the bulk, scale and visual impacts caused by the height breach, compared to that due to the approved height, is minimal, and, in my assessment, acceptable.

37. I accept the submission of the Applicant that the breach arose in a manner other than by intent, and in all probability as a consequence of poor project oversight and management.

38. Notwithstanding this, given the relatively small, and in my estimation marginal, variance between the approved building design and the ‘as built’ form of the secondary dwelling, I have concluded that the work required to restore the structure to its approved height is out of proportion to any impact, and offence, caused by the breach.

37. As noted earlier, the ‘as built’ dimensions of the secondary dwelling remain compliant with the setback and height controls applicable to the development under the provisions of SEPP ARH, RLEP and RDCP.

Conclusions

40. As confirmed by the Commissioner in her judgement in the matter of Gosling v Penrith City Council [2016] NSWLEC 1288 (Gosling) (at [43]):

“… The Court’s discretion to direct the issue of a building certificate is broad under s 149(3) [now s 8.25 of the EP&A Act]…”

41. The Commissioner had also observed in Gosling (at [42]) that:

“The EP&A Act allows for a direction that the Council issue a building certificate to the applicant subject to condition.”

42. Having considered the submissions of the Parties, and the evidence of the expert planners, I am satisfied that:

1. as proposed by the expert planners, and as embraced by the Applicant (see above at [22(3)]), the proposed additional treatments identified to mitigate potential overlooking impacts from the approved first floor windows of the secondary dwelling onto the rear of the adjoining property at 30 Morrison Road should be implemented;

2. as agreed by the expert planners, the side setback of the ‘as built ‘secondary dwelling:

1. is compliant with the relevant development standard in SEPP ARH;

2. does not give rise to any significant impacts on adjoining properties and their residents;

3. is acceptable, and does not form a basis for refusal of a Building Information Certificate by Council;

3. the height of the ‘as built’ secondary dwelling is:

1. compliant with the height of building controls in RLEP and RDCP;

2. only marginally higher than the approved height of the secondary dwelling for which consent was granted by the Respondent Council;

3. such that the work required to restore the structure to its approved height is out of proportion to the minor, and in my assessment, not significant impact that arises from the ‘as built height breach’ compared to the approved height;

4. acceptable, and does not form a basis for refusal of a Building Information Certificate by Council.

43. I have, therefore, concluded that:

1. the ‘as built’ side setback and height of the secondary dwelling are acceptable;

2. a Building Information Certificate for the ‘as built’ secondary dwelling, but incorporating the proposed treatments to the first floor windows of the secondary dwelling as discussed above at [42(1)], should be issued by the Respondent Council.

Directions

44. The Court directs that:

1. the Applicant is to prepare, and file with the Court, agreed plans of the ‘as built’ secondary dwelling, and including additional detail, to be agreed with the Respondent, confirming the treatments to be applied to the approved first floor windows, as discussed above at [42(1)];

2. the plans referred to above at [(1)] are to be filed with the Court by no later than Friday 15 March 2019;

3. this matter is listed for mention on Tuesday 19 March 2019 at 4pm;

4. if directions [(1)] and [(2)] are complied with by the Parties, final orders will be made in chambers which will direct City of Ryde Council to issue a Building Information Certificate for the secondary dwelling on the Subject Site, and the mention on Tuesday 19 March 2019 will be vacated;

5. the Parties are granted liberty to restore on 2 days’ notice.

Addendum made on 19 March 2018

45. I have previously directed that:

1. the Applicant is to prepare, and file with the Court, agreed plans of the ‘as built’ secondary dwelling, and including additional detail, to be agreed with the Respondent, confirming the treatments to be applied to the approved first floor windows, as discussed above at [42(1)];

2. the plans referred to above at [44(1)] are to be filed with the Court by no later than Friday 15 March 2019;

46. The plans which the Court directed should be prepared have now been filed with the Court.

47. As a consequence, the Court is now able to make final orders in relation to this appeal.

Orders

48. The orders of the Court are:

1. The appeal is upheld;

2. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, City of Ryde Council is directed to issue a Building Information Certificate in respect of the secondary dwelling at 32 Morrison Road, Gladesville, and in relation to works carried out under Development Consent LDA 2017/0260 and Construction Certificate CC18/2/1, which have been completed consistent with the ‘as built’ plans attached hereto at Annexure ‘A’;

3. The exhibits are returned with the exception of Exhibits A and 1.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (723 KB, pdf)

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Amendments

21 March 2019 - See Addendum made on 19 March 2018 for Orders added

Decision last updated: 21 March 2019