Doyle v North Sydney Council

[2019] NSWLEC 1545

Land and Environment Court

New South Wales

Medium Neutral Citation:	Doyle v North Sydney Council [2019] NSWLEC 1545
Hearing dates:	30 October 2019
Date of orders:	12 November 2019
Decision date:	12 November 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application No. 428/18, for the construction of a masonry wall and a new timber fence on 22 Cairo Street, Cammeray (Lot 1 DP 1067809), separating the two entries to the semi-detached dwellings and connected to an existing fence which is located between the subject site and its adjoining property at No. 20 Cairo Street, Cammeray, is granted consent subject to the conditions of consent annexed hereto and marked “A”, and relies on plans marked “B”. (3)   There is no order as to costs. (4)   The exhibits, except for Exhibits 2, 3, A, B and F are returned.
Catchwords:	DEVELOPMENT APPLICATION – masonry wall and new fence – consent orders – character – amenity – heritage conservation area – works wholly on applicants land
Legislation Cited:	Access to Neighbouring Land Act 2000 Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013
Cases Cited:	Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC1126 Galea v Marrickville Council (2005) 141 LGERA 21
Texts Cited:	North Sydney Development Control Plan 2013 The Practice Note - Class 1 Development Appeals, Land and Environment Court
Category:	Principal judgment
Parties:	Michael Doyle (First Applicant) Sally Mitchell (Second Applicant) North Sydney Council (Respondent)
Representation:	Counsel: D Briggs (Solicitor) (Applicants) K Law (Solicitor) (Respondent) Solicitors: DG Briggs & Associates (Applicants) Matthews Folbigg Lawyers (Respondent)
File Number(s):	2019/198061
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 428/18 by North Sydney Council (hereafter the Council) for the construction of a masonry wall and a new timber fence on Lot 1 DP 1067809, also known as 22 Cairo Street, Cammeray (hereafter the site).

2. The new wall and fence are to be located wholly on the site, to separate the two entries of the semi-detached dwellings. The new fence will be connected to an existing fence, which serves as a boundary in the front setback between the site and 20 Cairo Street Cammeray.

Background

3. DA 428/18 was submitted to Council on 12 December 2018, and following notification, one objection was received from the adjoining resident at 20 Cairo Street. The grounds of objection related to: amenity impacts of solar access; lack of consent for access; inconsistency with heritage and streetscape character; and lack of necessity.

4. The applicants seek the construction of the masonry wall and new fence to provide a secure parking area located in the front of their dwelling.

5. The applicants appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which was formally refused by the Council on 17 June 2019.

6. The parties sought a hearing without conciliation, as consent orders could be made, pursuant to s 34C of the Land and Environment Court Act 1979 (the Court Act), which commenced in Court on 30 October 2019. No site view was requested by the parties. The resident objector of 20 Cairo Street was heard at the start of the hearing, on issues raised previously in their submission.

The site

7. The site is a rectangular shape oriented east-west, covering a total area of 267.8m².

8. The site has frontage of 5.95 m to Cairo Street (eastern boundary) and adjoins (along the southern boundary) for a length of approximately 40.85 m a semi-detached, separately owned dwelling, known as 20 Cairo Street. The front of the dwellings share an entry portal.

9. The site was recently approved (under a separate approval) as a two storey brick dwelling with front driveway and parking access, and is centrally located on the land. The Council’s heritage expert (in Exhibit 1) describes the existing dwelling on the site as “a 1940’s semi-detached dwelling … modified to present as a federation style dwelling”.

10. Extending through the front setback to the steps of the porch entry is an existing 1.2 m high timber slat/picket fence, which forms a boundary between 20 and 22 Cairo Street. The steps leading to and across the porch/entry way is currently open without obstruction.

11. The site is located within the Plateau Conservation Area, and according to the applicants’ heritage statement (Exhibit A) there are a number of other semi-detached dwellings with a physical wall/barrier separating the porch entry, as proposed in this DA, throughout the street.

The proposal under appeal and issues for the Court’s consideration

12. The DA proposes construction of the following:

• A 3.3 m high and 1.9 m long brick/masonry wall with (two) glazed windows (of undetermined dimensions) set into timber frames, connected to the existing wall at the door entry and a new fence described below. The wall extends the length of the tiled area of the portal.

• A 1.2 m high and 0.9 m long timber picket fence down the stairs of the entry portal connecting the new wall to the existing (boundary) fence.

13. The new structures and all works will be wholly contained within the site.

14. The respondent has not provided any contentions in a Statement of Facts and Contentions (SoFC), although relies on the Council’s assessment report (Exhibit 1) and letter of refusal (Exhibit 2). The parties agree that the issues that led to the refusal of the DA under appeal are satisfactorily resolved. The key issue for refusal related to the denial of access from the adjoining property owners at 20 Cairo Street for construction and maintenance of proposed works.

15. The parties recognise that there is significant concern in the mind of the adjoining resident regarding the proposed development at this site. However, they consider that the issues raised are resolved by the proposed design of works provided in Exhibit B, jurisdictional provisions concerning access and the agreed conditions of consent (Exhibit 3).

16. As the parties agree that the issues raised by the objector are resolved and there are no outstanding jurisdictional issues relating to the proposed development, the parties seek the granting of consent for DA 428/18 to be determined through consent orders made by the Court. A signed version of the amended consent orders with agreed conditions was tendered at the hearing as Exhibit 3. By request of the Court after judgement was reserved, these consent orders were amended by the parties to accurately reflect the orders sought, and were refiled to replace Exhibit 3 on 4 November 2019.

17. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and whether it is appropriate for the Court to grant consent.

18. I am also required to consider the evidence and submissions of the objector. The Practice Note - Class 1 Development Appeals (Practice Note) of the Land and Environment Court sets out the procedural requirements at [99] for the Court’s consideration:

“[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

19. The Court heard from the adjoining resident of 20 Cairo Street, Ms Taffell, in Court at the start of the hearing.

Relevant planning controls

20. The requirements of s 4.15(1) of the EPA Act are relevant for the Courts consideration in the granting of this DA under appeal.

21. The Court must be satisfied that the proposed works can be constructed/maintained as required, particularly where consent for access by an adjoining owner is not given. The provisions as set out in the Access to Neighbouring Land Act 2000 (Access Act), namely s 7, are relevant for consideration in the granting of this DA:

7 Persons who may apply for a neighbouring land access order

(1) A person who, for the purpose of carrying out work on land owned by the person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order.

(2) A person who, for the purpose of carrying out work on land owned by another person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order with the consent of the person on whose behalf the work is to be carried out.

(3) The Local Court may waive the requirement for consent under subsection (2) if it thinks it appropriate to do so in the circumstances.

(4) A person may apply for a neighbouring land access order even if access to the land concerned, for the purposes for which access is required, may be obtained by way of an easement imposed by an order under section 88K of the Conveyancing Act 1919. However, a person may not apply for a neighbouring land access order if access to the land concerned, for the purposes for which access is required, may be obtained or granted under any other provision of an Act.

22. With regards to the proposed wall and fence, s 14 of the Dividing Fences Act 1991 (Fences Act) is acknowledged, although not contributory in the Courts assessment of the DA under appeal:

14 Orders as to fencing work

(1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:

(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b) the fencing work to be carried out (including the kind of dividing fence involved),

(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d) which portion of the dividing fence is to be constructed or repaired by either owner,

(e) the time within which the fencing work is to be carried out,

(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

(1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act).

(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

23. The site is located within an R2 Low Density Residential zone, as identified in the North Sydney Local Environmental Plan 2013 (NSLEP). The proposed alterations and additions are permissible in this zone with consent, and based on the proposed design the height of the masonry wall satisfies the height standard (of 8.5 m), pursuant to cl 4.3 of the NSLEP.

24. The site is located within the Plateau (heritage) Conservation Area, although the dwelling itself is considered a ‘neutral’ item and not a heritage item, and considered consistent with cl 5.10(2)(a)(iii) of the NSLEP. The objectives of cl 5.10(1) are relevant for the Court’s consideration in the granting of consent to this DA, as follows:

5.10 Heritage conservation

Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of North Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

25. There is no contention that any other relevant development standards of the NSLEP have not been satisfied by the proposed development.

26. In consideration of the granting of the DA, the parties agree that the relevant controls of the North Sydney Development Control Plan 2013 (NSDCP) are generally satisfied. The non-compliance with side (southern) setback (of 0.9m) is not considered significant due to the lack of amenity impacts on the adjoining dwelling and that access can be resolved. The proposed height of the new fence above 1m (control for a front setback) is acceptable as the proposed fence height is consistent with what already exists on the site and which it will directly connect to. It is also noted that the actual works are behind the building line and not part of the front setback.

Evidence

27. The parties provided no expert evidence in the hearing and relied on the supporting documents of the DA and the Council’s assessment reports, as tendered.

Access

28. This primary issue for refusal of the DA by Council and that raised by the objector, relates to whether the proposed works, particularly the masonry wall, are accessible during construction and for future maintenance.

29. In refusal of the DA under appeal, the Council relied on the Planning Principle established in Galea v Marrickville Council (2005) 141 LGERA 21 (Galea judgement) by former Senior Commissioner Roseth, as it relates to building on a side boundary.

30. Paragraph [17], below, of the Galea judgment was relied on by Council to provide the test as to whether the proposed location of works was appropriate. For the DA under appeal, it found as neighbour access was not consented, and refusal determination was warranted.

“[17] To test whether building on the boundary is appropriate, the following questions should be asked:

• Is the street characterised by terrace housing?

Building to the boundary is likely to be appropriate in streets where the existing form of development is terrace houses or villa homes, ie where building to the boundary follows the existing pattern of development.

• What is the height and length of the wall on the boundary?

Short lengths of single storey walls (such as garages) are usually acceptable on the boundary.

• Has the applicant control over the adjoining site(s) or the agreement of their owners?

Where the applicant has control over the development of the adjoining sites or their owners agree to a wall on the common boundary, such walls are likely to be appropriate.

• What are the impacts on the amenity and/or development potential of adjoining sites?

Building to the boundary may be appropriate, even where the above tests are not answered favourably, provided it can be shown that a wall on the boundary does not diminish the amenity or the development potential of the adjoining site.

• Are there arrangements in place for the maintenance of the wall or gutters?

The question of maintenance should be considered at the time of the development application to avoid disputes later.”

31. The Council in its refusal interpreted that without consent for access by the adjoining land owner, the DA could not be granted as it was contrary to s 4.2(1)(a) of the EPA Act and cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

32. However, the parties agree that the application of this Planning Principle was not appropriate for the DA under appeal due to the different circumstances of this proposed development to what was considered in the Galea judgment. The respondent accepts that, as addressed by Senior Commissioner Moore (as his Honour was then) in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC1126 at [58]-[59], a Planning Principle need not be slavishly followed.

“58 Third, planning principles are not binding. They are not the stone-inscribed commandments that Moses is described, in Exodus Chapter 20, as bringing down from Mount Sinai.

59 Planning principles published and adopted by the Court are intended to provide guidance to those who bring similar cases to the Court for determination and are also intended to provide assistance and guidance for local consent authorities. They do not and cannot have the same force as some form of statutory prescription. They certainly cannot automatically displace or override the provisions of a local environmental plan or a development control plan that deals with the topic of a particular planning principle in a fashion differing from that enunciated by the planning principle itself.”

33. The respondent accepts that consent for access from the adjoining owner is not a jurisdictional requirement for the works proposed in the DA. The proposed works are wholly contained on the site, the subject of the DA. This is shown on the plans supporting the DA and described in conditions of consent, specifically condition B6.

34. I am satisfied that access for construction and maintenance of the proposed works can be achieved, even without access being consented by the adjoining property owner, by application pursuant to s 7 of the Access Act.

35. On this basis, I am satisfied that consent for access is not a jurisdictional issue to concern the Court in the granting of the DA under appeal, therefore s 4.2 of the EPA Act and cl 49 of the EPA Reg are satisfied.

Amenity impacts

36. Whilst I appreciate the objectors concern regarding the perceived bulk of the masonry wall within their confined porch area and potential for loss of solar access to their porch, I must address specifically any potential adverse amenity impacts with reference to the relevant development standards and controls.

36. The parties agree and I accept that there are at best minimal amenity impacts to the adjoining dwelling as a result of the proposed works, and none that would breach a NSDCP control. It is agreed that there is no solar access impact to living areas of the associated dwellings.

37. I find the location of the proposed window/s in the masonry wall will sufficiently address any potential reduction in solar access to the porch area. The design of the windows (W1) are shown in plans supporting and relied upon in this DA, and the materials for glazing are described in condition B1 of the conditions of consent. I accept the design is consistent with the heritage requirements of the conservation area and seek to address any potential amenity impacts.

38. I note however that the dimensions of these windows are not described in the supporting plans and conditions of consent. As I consider the size of these windows an important feature to address the objectors concerns, I amend condition B1 below, to define the minimum size of windows to be fixed in the masonry wall. Sufficiently sized windows fixed into the masonry wall will improve solar access to the southern porch area and also reduce the perception of bulk of the large masonry wall in the confined porch area.

39. I consider there is no compliance issue within the side setback control (of 0.9 m) in the NSDCP. I find no other inconsistency with the relevant controls of the NSDCP.

Heritage and character

41. I accept the respondent and applicants’ heritage expert assessments, which indicate that the proposed windows in the wall, together with the design of the wall and fence are not inconsistent with the heritage conservation objectives of the area. The materials to be used and colours are consistent with the existing dwelling on the site.

42. I therefore find that cl 5.10 of the NSLEP is satisfied.

43. The applicant took the Court to photos in the Statement of Environmental Effects (Exhibit A) that showed other similar designs in the street, with front porches separated by walls extending from floor to ceiling. It is accepted that the facades of these semi-detached dwellings are slightly different from that described on the site, however I accept that the concept of a wall dividing the porch entries is not uncharacteristic in the street.

44. I therefore find that the proposed DA is not inconsistent with the objectives of the zone, pursuant to cl 2.3 of the NSLEP.

Public interest

45. I am satisfied that based on the resolution of the issues raised by the objector, and no amenity impacts envisaged, the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is achieved.

Conclusion

46. Based on the DA’s compliance with the development standards of the NSLEP, no inconsistency with the objectives of the controls in the NSDCP, and relevant jurisdictional provisions to ensure access for construction and maintenance of the proposed works, I find that the requirements of s 4.15 of the EPA Act are satisfied.

Consent orders

47. The parties have relied on the following supporting documentation for this DA:

1. Statement of Environmental Effects, dated December 2018;

2. Architectural plans, dated October 2018;

3. Heritage Statement, dated December 2018;

4. Survey Plan, dated August 2016;

5. Structural statement, dated December 2018; and

6. Conditions of consent, dated October 2019.

48. Notwithstanding the parties’ agreement to consent orders in determining this matter, I have carefully considered the evidence before me and the resident objection relevant to the DA under appeal. Based on the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.15 of the EPA Act, that DA 428/18 warrants approval.

49. I am required to: assess the evidence that the approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly, consent is granted to the DA in accordance with the consent orders signed by the parties (Exhibit 3) and subject to the conditions of consent and plans annexed to this judgment, including the amendment to condition B1 below.

50. I amend condition B1 to include the following:

“(iii) the window (W01) fixed into the masonry wall shall be consistent with either two panes each a minimum 0.75 m wide and 1.5 m high, or one pane a minimum of 1.5 m wide and 1.5 m high.”

Orders

51. Consequently, the orders of the Court are as follows:

1. The appeal is upheld.

2. Development Application No. 428/18, for the construction of a masonry wall and a new timber fence on 22 Cairo Street, Cammeray (Lot 1 DP 1067809), separating the two entries to the semi-detached dwellings and connected to an existing fence which is located between the subject site and its adjoining property at No. 20 Cairo Street, Cammeray, is granted consent subject to the conditions of consent annexed hereto and marked “A”, and relies on plans marked “B”.

3. There is no order as to costs.

4. The exhibits, except for Exhibits 2, 3, A, B and F are returned.

…………………….

Sarah Bish

Commissioner of the Court

Annexure A (75.4 KB, pdf)

Annexure B (1.88 MB, pdf)

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Decision last updated: 12 November 2019