Felthouse v Ashfield Council - [2010] NSWLEC 1088

Land and Environment Court

of New South Wales

CITATION: Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088

PARTIES:
APPLICANTS
Gary Felthouse
Nora Felthouse
RESPONDENT
Ashfield Council

FILE NUMBER(S): 10933; 10934 of 2009

CORAM: Pearson C

KEY ISSUES: SECTION 121B ORDER :- Building certificate
unauthorised building works

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Ashfield Local Environmental Plan 1995

CASES CITED: Ireland v Cessnock City Council (1999) 110 LGERA 311

DATES OF HEARING: 16 April 2010

EX TEMPORE JUDGMENT DATE: 19 April 2010

LEGAL REPRESENTATIVES: APPLICANTS
Dr S Berveling, barrister
Instructed by
Mr D Mitchelmore
CP White & Sons
RESPONDENT
Mr K Webber, solicitor
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C

19 April 2010
10933 of 2009 Felthouse & Anor v Ashfield Council
10934 of 2009 Felthouse & Anor v Ashfield Council

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

JUDGMENT

1 These are two separate but related appeals in respect of premises at 5 Farleigh Street, Ashfield (the subject property). In matter 10933 of 2009 the applicants, Mr Gary Felthouse and Mrs Nora Felthouse, appeal under s 149F of the Environmental Planning and Assessment Act (the Act) against a refusal by Ashfield Council (the Council) to issue a building certificate. Matter 10934 of 2009 is an appeal under s 121ZK of the Act against orders issued pursuant to s 121B of the Act on 17 November 2009 in respect of the subject property.

2 The proceedings were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 8 February 2010 which commenced on site. Through the course of further discussions between the parties agreement has been reached on a number of the issues in dispute. There remained one issue in dispute, and there being no agreement as to the terms of a decision such that either of the proceedings could be disposed of under s 34(3) of the Court Act, the conciliation conference was terminated. The parties agreed to my disposing of the proceedings and consented to the admission of evidence from the conciliation conference.

3 A hearing was held on 16 April 2010 at which further evidence was tendered and oral evidence was given by Mr Greg Patch and Mr Robert Moore, both architects and heritage consultants, on behalf of the applicants and the Council respectively.

Background

4 The subject property is a two-storey building located near the corner of Farleigh Street and Clissold Street, Ashfield. The house was erected in 1884, and by 1890 was known as “Darlington Villa”. In an appendix to a Statement of Heritage Impact provided by Mr Patch on behalf of the applicants, Mr Gary Felthouse outlined the history of the works done to the property after he and his wife purchased it in 1992/1993. It had previously been rented to a group of students and had consisted of some twenty…

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 1088
Decision Date: 19 April 2010

CaseChat Overview and Summary

The applicants, Mr. Gary Felthouse and Mrs. Nora Felthouse, appeal against the Ashfield Council's refusal to issue a building certificate and against orders issued under the Environmental Planning and Assessment Act 1979 (the Act). The central legal issue in these appeals is whether the unauthorised works done to the property at 5 Farleigh Street, Ashfield, affect the heritage significance of the property to such an extent that it is necessary to require reinstatement of the building to its condition before the unauthorised works were undertaken. The court considered the evidence of two expert witnesses, both architects and heritage consultants, who disagreed as to the impact of the works on the heritage significance of the property. The court held that while the applicants proceeded with substantial unauthorised works, the discretion conferred by the Act has to be exercised having regard to the merits and not in a punitive way. The court found that the likely cost and work involved in the reinstatement of the hipped roof at the rear of the house is not warranted, having regard to the limited visibility of this section of the roof from various parts of the public domain. The court substituted new orders for the orders issued by the Council on 17 November 2009 and directed the Council to issue a building certificate once it is satisfied that the works agreed between the parties have been carried out and the documents provided in accordance with that agreement.

Orders