Finn v Ashfield Municipal Council

[2008] NSWLEC 1418

Land and Environment Court

of New South Wales

CITATION:

Finn v Ashfield Municipal Council [2008] NSWLEC 1418

PARTIES:

APPLICANT
Terrance Finn

RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S):

10445 of 2008

CORAM:

Hussey C

KEY ISSUES:

Section 121B Order :- removal unauthorised structure to wall of building in Heritage Conservation Area.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

20/10/2008

EX TEMPORE JUDGMENT DATE:

20 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Finn, litigant in person

RESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 October 2008

10445 of 2008 Terrance Finn v Ashfield Municipal Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

Background

1 This matter concerns an appeal against a Section 121B Order to demolish or remove unauthorised structures on a dwelling house at 176 Bland Street, Haberfield.

2 The s121b Order dated 4 April 2008 required the demolition or removal within 30 days of various materials attached to the wall of the dwelling as follows:

• The box-like structures attached to the south-western wall.
• The corrugated iron sheets/screening attached to the south-western wall.
• The blue plastic sheets/screening attached to the boundary fence.
• The barbed wire above the side-passage fence gate on the south-western side of the premises.

3 According to the applicant, these materials (apart from the barbed wire) were erected to counter unsatisfactory odours/toxic fumes arising from the neighbouring property.

Planning Controls

4 Ashfield Local Environmental Plan 1985. Under this LEP the site is within the Haberfield Conservation Area and the following clause 32 is relevant.

Clause 32
( 1) The following development may be carried out only with development consent :
(a) demolishing, defacing, damaging or moving a heritage item, or a building, work, relic or place within a heritage conservation area, or
(b) altering a heritage item, or a building, work, relic or place within a heritage conservation area by making structural changes to its exterior, or
(c) altering a heritage item, or building, work, relic or place within a heritage conservation area by making non-structural changes to the detail, fabric, finish, or appearance of its exterior, except changes resulting from any maintenance necessary for its on-going protective care which does not adversely affect its heritage significance, or
(d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic, or
(e) erecting a structure on, or subdividing land on which a heritage item is located or which is within a heritage conservation area.
(2) Development consent is not required by this clause:
(a) if the Council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or the heritage conservation area, or
(b) for the maintenance of, or emergency work to, a utility installation .

The evidence

5 Evidence on behalf of Council was presented by Mr M Morsanuto, manager regulatory services. Mr Finn presented his own case.

Notice of Motion

6 At the commencement of proceedings Mr Finn referred to his recently lodged Notice of Motion (17/10/08) seeking to have the matter adjourned until November to enable access to more detailed information from council. The reasons for this motion are contained in his attached Affidavit. Council opposed this motion.

7 Having considered the aforementioned reasons, the only matter that Mr Finn could possibly obtain more details is in regard to past council approval of the barbed wire atop the side gate. However, as requested by Mr Finn, council files on the subject property from the 1950’s period were presented. Perusal of those files shows the much simpler documentation of adopted in past building approvals and also, no specific reference or approval of the barbed wire on the gate.

8 The Court was assisted by the council officer in the examination of the files requested, in Mr Finn’s presence and in the circumstances where no relevant evidence was revealed, I am satisfied that it is not reasonable to adjourn the hearing in order to allow the applicant to search for other unspecified material when Mr Finn presented no substantive evidence in this regard, to support his application.

9 Furthermore, I understand this matter was subject to a s34 Conference on 7/7/08 where the current issues were addressed. Following this, the parties were directed to the Registrar on 17/7/08 to obtain a convenient date for the matter to be heard. Consequently, the matter was set down for an On-Site Hearing today, which I consider allowed Mr Finn adequate time to engage any representatives he desired to present his case, or prepare any response to the issues identified. But Mr Finn attended and presented his own case.

10 In these circumstances, my determination is that the Notice of Motion requesting the adjournment of the matter should be dismissed.

Merit matters

11 The contentious materials attached to the south-western wall of No 176 comprise the plastic sheeting, various cardboard boxes/sheets over the wall vents and corrugated iron sheeting over the bedroom window. Mr Finn maintains these items are necessary to prevent the ingress of odours/toxic fumes which he thinks emanate from No 174.

12 A considerable amount of discussion was undertaken regrading this odour disamenity. According to council’s chronology, odour complaints by Mr Finn originated back in February 2003. Subsequent complaints have been made in the interim period. This has resulted in a number of site inspections by council officers, but no detection of the offensive odours complained about.

13 Mr Morsanuto said that he had reviewed these complaints and responses and did not consider that any substantive complaint had been established. He was satisfied that from site inspection assessments and the lack of similar odour complaints from other neighbours, that there is no public health threat or risk to the occupants of No 176, based on the current evidence submitted. Notwithstanding this, he said that if some supporting details were submitted that clearly established the odour nuisance, it would be further investigated.

14 Based on the evidence presented to the Court, I rely on Mr Morsanuto’s opinion that the odour issue has not been satisfactorily established. Accordingly, I do not consider there is any compelling case that the materials attached to the wall are necessary to control the perceived odours.

15 The blue plastic sheets are loosely tied to the building and attachments to the fence. They are mainly in poor condition and present a poor visual impact to the street and neighbouring property. Mr Finn agreed to the removal of these sheets, which I accept.

16 The cardboard boxes/sheets covering the wall vents, presumably to restrict the perceived odours, also present an unsatisfactory visual impact from the street, which is in the conservation area. As they serve no essential function, I consider they should be removed.

17 The corrugated sheets of iron covering the bedroom window also have an unsatisfactory visual impact from both the street and neighbouring properties. In addition to this, the sheet/s preclude natural light and air to this bedroom. Mr Morsanuto expressed concern that this window covering would contravene the health and amenity requirements for a habitable room to have a minimum of 10% of the floor area for glazing and also provide for satisfactory air entry and circulation.

18 Considering these negative aspects of the corrugated iron window enclosure and the unsatisfactory visual impacts, I consider they should be removed because they are not essential for public health reasons to prevent any undesirable odours.

19 The remaining element designated for removal is the barbed wire. This is atop the side boundary gate structure, which is approximately 2m high. The gate is in the order of 1 – 1.2m wide. The wire was apparently fixed to the gate many years ago to provide security to the subject property. Mr Finn maintains it is required to maintain reasonable security.

20 In my assessment, the barbed wire is well rusted and is an uncharacteristic feature in this conservation area. In its location it would seem to offer little in any security, considering the ground level side gate is not locked. In the absence of any evidence of the past approval of the barbed wire, I consider it reasonable that it be removed in accordance with council’s order.

Conclusion

21 In reaching these conclusions, I have considered the relevant planning control restrictions applying in this heritage conservation area. In particular the provisions of cl 32 (1) (a) require consent for non-structural changes to the exterior building except for on-going maintenance and care. But the maintenance and care triggers have not been established here and I consider these works consequently offend these provisions.

22 I also note that the Haberfield Conservation Area is covered by Part C7 of the DCP, which generally restricts unnecessary changes to buildings. Also that the DCP controls for walls in Control 2.15(a) requires that the original shape and materials of the front and sidewalls not be altered. I accept Mr Morsanuto’s opinion that the subject materials/structures do not adequately satisfy these controls and create such a degree of adverse visual impact that they should be removed.

Court Orders

1 The Notice of Motion to adjourn these proceedings is dismissed.

2 The appeal against terms of the Order issued by Ashfield Municipal Council dated 4 April 2008 is dismissed.

3 The Councils s121B Order is modified to require the removal of the following ‘Scope of works’ and structures erected on the south-eastern wall of No 176 Bland Street, Haberfield.

.1 Remove and not return the box-like structures, including cardboard and plywood attached to the south-western wall.
.2 Remove and not return the corrugated iron sheets/screening attached to the south-western wall of the subject premises.

.3 Remove and not return the blue plastic sheets/screens attached to the boundary fence, including the poles used to affix the sheets and any miscellaneous posts, ropes and other loose items on the south-western side of the subject premises.

.4 Remove and not return all the barbed wire above the side-passage fence/gate on the south-western side of the property.




4 The period for compliance with the Order as modified is 21 days from the date of this Order.

5 The exhibits be retained except 1.

___________________

R Hussey
Commissioner of the Court
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