Gooley v Canada Bay City Council

[2006] NSWLEC 636

Land and Environment Court

of New South Wales

CITATION:

Gooley v Canada Bay City Council [2006] NSWLEC 636

PARTIES:

APPLICANTS
Dr Brett Gooley and Christine Gooley

RESPONDENT
Canada Bay City Council

FILE NUMBER(S):

10543 of 2005 and; 10629 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Building certificate and occupation certificate refusal

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries
State Regional Environmental Plan No. 22 - Parramatta River
Drummoyne Local Environmental Plan 1986
Drummoyne Comprehensive Development Control Plan 1999

CASES CITED:

Winn v Director-General of National Parks and Wildlife & Ors [2001] NSWCA 17

DATES OF HEARING:

15/09/2006

 
DATE OF JUDGMENT: 

10/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso, barrister
SOLICITORS
Sattler & Associates Pty Ltd

RESPONDENT
Mr D Simpson, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

11 October 2006

10543 of 2005 and Dr Brett Gooley and Christine Gooley
10629 of 2006 v Canada Bay City Council

JUDGMENT

Background

1 These proceedings comprise the following matters arising out of the development consent granted for a residential property situated at 357 Victoria Place, Drummoyne:

• Appeal 10543/2005; is against council's deemed refusal to issue a Building Certificate for this property,
• Appeal 10629/2006; is against council’s deemed refusal to issue an Occupation Certificate for the whole of the property.
  

2 In this regard, an Interim Occupation Certificate was issued on 31 August 2006 for part of building, "excluding the rooftop lighting structures and use/occupation of rooftop for active recreation".

3 The matter was heard at an on-site hearing (OSH), where the parties agreed that both matters be considered concurrently.

4 Of relevance in this matter is the development consent granted by council to DA. 154/01 on 20 December 2001, which was for the construction of a new

5 2-storey dwelling, indoor pool, garage and rooftop area. The conditions of consent included:

1. The development shall take place generally in accordance with the following drawings, stamped "Approved" and held on council file, subject to compliance with any other conditions of this consent.

Drawings No: 01.6CC1,6CC2,6CC3 dated April 2001.

15. The proposed lighting on the rooftop area is to be installed in accordance with Australian Standard 4282, Control of the Obtrusive Effects of Outdoor Lighting. Certification from the installers to this effect are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate. A copy of this Certification is also to be submitted to Council …

22 Balustrading to balconies and rooftop deck is to be installed in accordance with Part 3.9.2 of the Building Code of Australia. Details of balustrades to balconies is submitted to and approved by the Principal Certifying Authority prior to release of the Construction Certificate.

6 A Construction Certificate was issued on 27 February 2002 and a dwelling house was erected sometime thereafter.

7 Subsequent to the approval of the development application, two further applications (the first an application under s 96 of the Act) for the development of the rooftop area for active sports purposes including a large roof structure have been considered and each refused by council. On appeal, the development application for the roof enclosure was also refused.

8 The principal contested issue in these proceedings concerns the construction and maintenance of 4 light poles situated on the rooftop deck. These lights are on poles, which are approximately 5 m high and are required by the applicant for lighting on the rooftop deck. Insofar as these lights have been erected, council contends that they were not part of the original consent and therefore satisfactory arrangements for their removal should be made in the building and occupation certificate process.

The Site

9 The subject site at No. 357 Victoria Place, Drummoyne, has an area of 1060 sq m and it is located on the south-western side of Victoria Place, towards Five Dock Point. The allotment has a "battleaxe" configuration.

10 The site contains a large dwelling house with 6 bedrooms over 2 levels, and indoor 25 m lap pool, gymnasium, home theatre room, sauna and steam room and 4 car garage. There is also an external swimming pool and sandstone boat shed on the waterfront.

11 The rooftop deck extends over the entire footprint of the building and has an external stair. The roof area is enclosed with a 1250 mm high parapet.

12 The subject site is generally surrounded by residential flat buildings, with heights in the order of 3-4 storeys high.

Planning controls

13 This site is zoned Residential 2(b) under the Drummoyne Local Environmental Plan 1986. Reference was made to the following controls as applying to the site:

1 In respect of the Building Certificate appeal, Section 149 of the Environmental Planning and Assessment Act .
2 In respect of the Occupation Certificate appeal, Section 109 of the Environmental Planning and Assessment Act .
3 Drummoyne Comprehensive Development Control Plan 1999 .
4 State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries and State Regional Environmental Plan No. 22 - Parramatta River , applied at the time of consent.

The evidence

14 A detailed assessment report (Exhibit 4), was presented by Mr B Krohn, architect and planner on behalf of Canada Bay City Council. For the applicant, evidence was presented by Mr R Fleming, a consulting town planner. Subsequently, the experts conferred and presented a joint conference report (Exhibit 5).

15 According to Mr Krohn’s evidence, he considers the erection of the floodlighting and lighting poles are in breach of the Development Consent No. 154/01 because:

The roof of the dwelling is described in the approved plans drawn by Robinson Moeskops Architects Drawing 01.6CC No. 3 as an "outdoor recreation deck". This area is accessed by an external staircase on the south-western edge of the house. This plan shows the location of 4 light pedestals, which are marked on the plans as "lighting to AS4282; light pedestals for guarco light columns". It is noted that the elevations showed no lighting columns above the parapet level.

16 Mr Krohn then deals with various objections raised by neighbours to aspects of the development proposal including disamenity from the rooftop lighting, together with the initial merit assessment.

17 Against this, Mr Fleming notes that the approved plan shows an outdoor recreation deck with artificial turf landscaping, together with lighting of this rooftop area to be installed in accordance with AS 4282. Accordingly he says that Engineering Partners Pty Ltd has certified in writing the design of the lighting to the recreation deck complied with AS 4282 on 8 February 2002, prior to the approval of the Construction Certificate and then on 3 September 2003, confirmed in writing the lighting as installed conformed to AS 4282.

18 In view of this compliance with the conditions of consent, Mr Fleming does not consider the Building Certificate and Occupation Certificates should be withheld.

19 Having considered the evidence, it is apparent to me that the critical issue concerns the status of the rooftop lighting. The development consent approved:

• the rooftop area as an outdoor recreation deck with artificial turf landscaping,
• 4 light positions around the deck, on the basis of "lighting to AS 4282; light pedestals for guarco light columns",
• an enclosure of the rooftop area, including balustrades with maximum height of 1250 mm and an external staircase to allow pedestrian access,
• Condition 15 as previously noted.

20 The question of the status of the lights arises due to their height because they have been erected on columns with a height in the order of 5 m above the deck level. Consequently, council argues that the consent did not approve lights of this height, which have the potential to cause disamenity to neighbouring properties.

21 In my assessment, I note that the aforementioned description of the lights on the recreation deck was shown on the plan view of the proposal (sheet 01.6CC3). Then the complimentary plans (sheet 01.6CC2) shows four elevations of the building, as approved. These elevation plans do not show any extension of columns or lights above the balustrade height.

22 Insofar as this is a critical issue, I note that on 7 February 2002, prior to the approval of the Construction Certificate, council made the following inquiry to the applicant:

Condition 15 - Roof top lighting. Supply the manufacturing details for the CC, i.e colour, height type. Certification for compliance with the standard can be provided at the time of installation.

23 Apparently no further detailing in respect of the height of the lights was submitted by the applicant even though the “intended lights” were of an extremely unusual feature in this area. The Construction Certificate was issued on 27 February 2002, which referred to the plans that were granted development consent i.e. with no lights poles protruding above the parapet.

24 In seeking to understand the approved plans, I sought clarification of the specification for "guarco light columns". However, at the hearing no description could be given to the Court. In my opinion then, this description does not readily identify that the proposed lights were to be approximately 5m high.

25 The procedures for lodging development applications generally require sufficiently detailed plans to enable assessment of the environmental impacts of the proposal. This includes the provision of plan, elevation views and sectional details. The elevations and sections are used to assess the overall height implications of the proposal, which is one of the usual primary heads of consideration for development assessment of buildings. It is of particular importance when the proposal is located within foreshore scenic protection areas, as is the current case.

26 In the absence any detailing showing the lighting poles being approximately 5m high, I consider it reasonable to interpret the approved development consent plan elevations as allowing the light poles to the height of the balustrade. Insofar as the initial lighting specification refers to a "pedestal", it seems to me that this could be of many different forms, including a base or architectural column to which the lighting structure is attached at, or near the balustrade level.

27 For my assessment of the plans, I have considered Mr Galasso’s submissions in regard to the application of the line of authority in Winn v Director-General of National Parks and Wildlife & Ors [2001] NSWCA 17 which states:

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.

I agree with Stein JA that in the present case the documents upon which the appellant sought to rely were not incorporated in the consent, either expressly or by necessary implication. The construction of the conditions which the appellant contends were breached cannot be determined in accordance with what is said to arise from the documents accompanying of the application.

28 Accordingly, my interpretation of the approved development plans, is that by reference to the four elevation views, no part of the building was approved above the balustrade level.

29 With reference to the AS 4282 specification compliance, it seems to me that whilst the existing higher level lights apparently comply with this, nevertheless lower level lights at the balustrade level could equally well comply, so that light on the deck and any other light disamenity is still within acceptable limits. This would satisfy condition 15 of the development consent, without any confusion about what height the light poles could be.

Findings

30 In the ultimate, I am satisfied that the light poles and light head structure form part of the building and as such, I do not consider that the existing poles have development consent to be at a higher level than the balustrade.

31 Accordingly, the current appeals concern the refusal to issue the Building Certificate and Occupation Certificate and I have considered the submissions that s 149D of the Environmental Planning and Assessment Act provides:

(1) The council must issue a building certificate if it appears that:
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993:
i) to order the building to be demolished, altered, added or to be rebuilt, or
ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

32 In this regard, Mr Krohn said that council issued a Notice of Proposed Order under Order No 15 of the Environmental Planning and Assessment Act on 9 September 2004. Then on 12 November 2004, council issued a final order, which was subsequently withdrawn, on technical grounds and stayed pending the determination of a merit appeal to the Land and Environment Court, dealing with development of the outdoor recreation area.

33 Consequently Mr Krohn’s evidence to the Court is:

"In accordance with the provisions of Section 149D (1) (a) Council considers that the rooftop area flood lighting and lighting poles remain unauthorised and as advised by the Senior Manager Assessments and Regulatory service it is council's intention to issue further orders to seek the removal of the unauthorised structures and to seek the cessation of the use of the area for other than approved passive recreation purposes."

34 Under these circumstances, it appears this is a matter which council is entitled to consider and as it apparently intends to make an Order that part of the building, namely the light poles and light head structures be removed or altered, then these are grounds for refusal to issue the Building Certificate. Otherwise, Orders could be made to the effect that council is to issue the building certificate after the removal of the "unapproved" elevated light poles.

35 Insofar as the applicant relies on the correspondence of Mr Hassan, as to compliance with AS 4282, to satisfy condition 15 of the consent, I have some reservations about the adequacy of this somewhat brief certification, which states:

"Further to your correspondence to us dated 21 Aug 2003 regarding the above-mentioned project we have inspected the site, liaised with Eagle lighting and obtained computer plot for illumination level. Based on the information provided by Eagle lighting the installed lighting to the recreation area does comply with the Australian Standard 4282 - Control of obtrusive effects of outdoor lighting."

36 Firstly, the certification was given on the basis of illumination levels measured by other parties and they have not been subject to any examination of the extent of the assessment. Importantly in the current situation, reference to AS 4282, identifies a number of aspects and potential effects of outdoor lighting that should be addressed as follows:

2.1 SCOPE OF SECTION
This Section describes purposes for which outdoor lighting is provided and the potential effects that such lighting may have on surrounding areas. It also describes how the importance of these effects may be influenced by the nature of the surrounding areas and puts forward recommended limits for the relevant light technical parameters which should contain the effects to within tolerable levels.

2.2 …

2.3 TOTAL ENVIRONMENTAL EFFECTS OF A DEVELOPMENT
For any development requiring outdoor lighting, the environmental impact from the lighting will not be the only impact. It may not be the most important impact. Other factors relating to the uses which are facilitated by the lighting system could be more significant than the lighting system itself, e.g. noise, traffic or parking.
Lighting is often the focus of complaints because it is, by nature, highly visible and is the means by which the conduct of the night activity is made possible. The potential effects of the lighting should therefore be assessed, as part of the overall impacts of a development, by the relevant development approval authority.
The impact of a lighting installation on the environment is not limited to the imposition of obtrusive light. The designers of a lighting installation should be encouraged to utilize luminaries and light sources that efficiently direct the light into the area required, thereby minimizing the energy consumption and waste light.

2.4 POTENTIAL EFFECTS OF OUTDOOR LIGHTING
Outdoor lighting, no matter how well designed, will generally have some effect on the environment in which it is installed.

The objectives of the lighting may be incompatible with the containment of light within the intended area of application. For example, some activities require the illumination of a volume or space, not just of a surface at ground level. The following examples illustrate this point:

(a) Lighting for certain sports, e.g. tennis, where it is essential to be able to see the movement of the ball in the space above the playing surface to an appropriate height.
(c) Security lighting at or adjacent to the property boundary.
For such applications, light needs to be directed at high angles to illuminate the space satisfactorily but this can create difficulties in controlling the light spilled beyond the boundaries of the installation. Restriction of direct views of bright luminaires also becomes difficult.
There will also be a general diffusion of light within the lit space resulting from reflection from surfaces and atmospheric scattering.
As well as the potential effect on the night environment, the daytime appearance of the lighting installation is important. The size and nature of the lighting support structures may be intrusive by day although this subject is not addressed in this Standard (see Foreword and Clause 1.1).
In the design and installation of an outdoor lighting system, consideration should be given to the potential effects of the lighting on occupants of surrounding properties and on transport users in the vicinity of the installation. These effects include the following:

(i) Changes to the amenity of an area due to the intrusion of spill light into otherwise dark areas, both outdoors and indoors, and to the direct view of bright luminaires.
(ii) A reduction in the ability of transport system users to see essential details of the route ahead, including signalling systems, due to glare from bright luminaires.
(iii) Changes to night sky viewing conditions due to a general luminous glow, i.e. skyglow, caused by the scattering of light in the atmosphere.

People will have a range of reactions to the installation of outdoor lighting; responses may vary from positive acceptance to outright rejection. The degree of response will depend, in part, on the nature of surrounding developments (see Clause 2.5), past experiences, novelty of the installation, and frequency and times of operation.

NOTE: Appendix C gives details of investigations into the obtrusive effects of outdoor lighting, including summaries of experimental data on the reactions of persons to obtrusive light.

2.5 INFLUENCE OF SURROUNDING DEVELOPMENTS
The perception of the lighting system may be significantly influenced by the following factors:
(a) The zoning of the area abutting the proposed development. There is a greater potential for complaints where the area is zoned for residential development.
(b) The state of development of the area described in Item (a), i.e. whether the area is sparsely settled or fully built-up.
(c) The topography of the area surrounding the lighting installation. Residential developments which are at a lower level than that of the lighting installation should be particularly considered, where a direct view of the luminaires is possible.
(d) Physical features such as adjacent tall buildings, trees and spectator stands, which may be effective in restricting light spill beyond the boundaries of the development.
(e) The presence or absence of other lighting in the immediate area and the type of lighting involved. The effect of the proposed lighting will be lessened where the surrounding area is reasonably well lit, e.g. arterial road lighting or lighting from adjacent commercial developments…

2.6 SPECIFIC EFFECTS AND RELEVANT LIGHT TECHNICAL PARAMETERS
2.6.1 Effects on residents
Effects on residents generally involve a perceived change in amenity arising from either of the following:
(a) The illumination from spill light being obtrusive, particularly where the light enters rooms of dwellings that are normally dark, e.g. bedrooms. The illuminance on surfaces, particularly vertical surfaces, is an indicator of this effect.
(b) The direct view of bright luminaires from normal viewing directions causing annoyance, distraction or even discomfort. The luminance of a luminaire, in a nominated direction, is an indicator of this effect. However, because luminance data is not normally provided by luminaire manufacturers and because of difficulties associated with the measurement of luminance, recommendations in this Standard are expressed in terms of the luminous intensity in specified directions.

The tolerable levels of each of these light technical parameters will be influenced by the ambient lighting existing in that environment. This will be determined largely by the degree and

type of the development of the area and by the road lighting in place.

Values of the light technical parameters that are acceptable during the earlier hours of the evening may become intolerable if they persist at later times when residents wish to sleep.

37 It is apparent to me that the application of AS 4282 provisions requires a detailed assessment of the impact on neighbouring properties e.g. s 2.5(c). However I do not see how the subject assessment was undertaken or any reference to the qualitative assessment that AS 4282 invites, in the tendered certification. Furthermore, it seems that compliance with the AS requires some delineation of the acceptable lighting times. This particularly applies to the pre-curfew and curfew times, which are defined in the standard. Therefore, I am unable to conclude that the lighting satisfies s 2.5(c) and 2.6.1 of AS 4282.

38 Notwithstanding this merit finding, I consider it is a secondary aspect of the subject appeals. My more fundamental conclusion is that development consent was not granted to the 5m (approximately) light poles.

39 With respect to the Building Certificate appeal, my assessment is that the existing 5m high light poles were not part of the approved building and I rely on Mr Krohn’s evidence that this is a matter Council is entitled to and intends to take action in respect of their demolition or alteration. Therefore, I do not consider it appropriate to issue the Building Certificate until this matter is satisfactorily resolved.

40 With respect to the final Occupation Certificate, my assessment is that it would only be appropriate to issue such certificate, subject to the removal of the 4 x 5 m light poles.

41 With respect to the use of the deck area, I accept that the development consent was granted for its use as an outdoor recreation deck.

42 On this basis, I intend to make orders, which reflect these findings, subject to any final submissions by the parties on the form of the orders.

Court Orders – Appeal No. 10543 of 2005

1. The appeal is upheld.

2. The Court orders the council to issue the Building Certificate for this property, subject to the light poles being removed or lowered to a height not exceeding the balustrade height and the illumination satisfying the requirements of AS4282. Such work shall be completed within 6 months and certified as complying with AS4282 following which the Building Certificate is to be issued within 28 days.

3. The exhibits may be returned except for 1, 2, 4, 5 and A.

Court Orders – Appeal No. 10629 of 2006

1. The appeal is upheld.

2. The Court orders the council to issue the Occupation Certificate for this property, subject to the light poles being removed or lowered to a height not exceeding the balustrade height and the illumination satisfying the requirements of AS4282. Such work shall be completed within 6 months and certified as complying with AS4282 following which the Occupation Certificate is to be issued within 28 days.

3. The exhibits may be returned except for 1, 2, 4, 5 and A.

___________________
R Hussey
Commissioner of the Court
Rjs/ljr