Jag 888 Pty Ltd and Anor. and Alsuzman Pty Ltd v Marrickville Council

[2006] NSWLEC 265

Land and Environment Court

of New South Wales

CITATION:

Jag 888 Pty Ltd & Anor. and Alsuzman Pty Ltd v Marrickville Council [2006] NSWLEC 265

PARTIES:

1ST APPLICANT
Jag 888 Pty Ltd & Anor.

2ND APPLICANT
Alsuzman Pty Ltd

RESPONDENT
Marrickville Council

FILE NUMBER(S):

11157 and 11512 of 2005 and 10231 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Section 96 application and appeals against orders to return building into compliance with approved plans, floor space ratio exceedance, disable persons access, strata plan issued by private certifier showing additional rooms that do not comply with consent, height exceedance, additional section 94 contributions.

LEGISLATION CITED:

Marrickville Local Environmental Plan 2001
Environment Planning Assessment Act 1979
Marrickville s 94 Contributions Plan, 2004
Marrickville Development and Control Plan No. 31
State Environmental Planning Policy No. 1

DATES OF HEARING:

11/04/2006

EX TEMPORE JUDGMENT DATE:

04/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Briggs, solicitor
SOLICITORS
D G Briggs and Associates

RESPONDENT
Mr G Christmas, principal solicitor
Of: Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 April 2006

11157 of 2005
11512 of 2005 and
10231 of 2006 JAG 888 Pty Ltd & Anor. and Alsuzman Pty Ltd v Marrickville Council

JUDGMENT

1 This is three appeals under Class 1 in regard to town houses in an existing set of three apartment buildings on top of a basement car park at No. 67 - 69 Pile Street, Marrickville.

2 The area is zoned Residential 2(a) Low Density under the Marrickville Local Environmental Plan 2001, except where a site is over 1500 sq m. Sites over that size can be approved for multi unit housing with council consent.

3 The development was approved under consent No. 2001/00685 dated 9 May 2002. The townhouses have been built. In the locality, there are mostly detached dwelling houses although there are some other villa homes and apartments scattered amongst the dwellings.

4 During enquiries by potential purchasers of townhouses on the site, council discovered that all units had been built with fully fitted out rooms in the roof, having plaster board linings, carpets, skirtings, electrical fittings and skylights that are not in the approved plans, nor in the Construction Certificate plans issued by a private certifier, a Mr O’Malley.

5 The Construction Certificate plans show on the roof plan, but not on the elevations, several small skylights. The ones installed in the finished building are much larger, more numerous and in different locations.

6 A reading of the Construction Certificate plans indicate the small skylights are intended for natural lighting of en suites that are in the centre of each of the three buildings.

7 There are 14 townhouses. These appeals are related to only two of them that remain in the developer’s ownership. Unit 1, at the front of the development is the designated disabled persons adaptable unit, that under conditions of consent, the respondent says was required to be constructed as a disabled person’s unit.

8 On a view of the premises it became clear that except for wide door widths provided, and kitchen and bathroom layout, the unit is not currently disable accessible either from the street or the basement car park, and the bathroom door has the wrong swing to enable a person in a wheel chair to enter.

9 The applicant says it is only required to be capable of conversion to disable access. This accessibility is not the subject of any of these appeals, except in so far as access to the rooms in the roof space is concerned. They are accessed via a fold down attic ladder. Upstairs are a stair lobby and three rooms, one had been fitted out as a bathroom, the fittings had been removed at the time of the hearing. The two other rooms are of a size and ceiling height that would probably be habitable if they had natural light and ventilation.

10 Much of the floor space of the two larger rooms is under the slope of the roof, but the centre parts of the ceiling of each room are level.

11 The room at the east had a skylight in the roof, but it had been sheeted over on the inside with plasterboard. There had been a previous s 96 application to allow a similar conversion of the roof space with a proper staircase instead of the attic ladder. Council had refused that application and it is not the subject of these appeals.

12 Unit 10 has an attic fitted out to a similar standard to the rooms in unit 1, except it is only one room and its ceiling heights are on average lower than the rooms in Unit 1. Nevertheless there is a space about 5 m x 3 m with ceiling heights between 1.4 m to 2.3 m under the slope of the roof. The room is actually a little larger than 5 m x 3 m and carpeted to the full extent. There is a skylight that does give daylight to the room, but no ventilation.

13 Appeal 11157/2005 is an appeal about the order issued by council under s 121B of the Environment Planning Assessment Act, in respect of unit 1. It required:

“In accordance with order No. 15 you must comply with development determination numbered 2001/00685 dated 9 May 2002 and in particular condition one within 28 days. The approved floor plan is inconsistent with the building work that has been carried out within the roof space of unit 1. You must revert this floor area as designated roof space in accordance with the approved plan.”

14 Appeal 11512/2005 is an appeal against refusal of a s 96 application, as shown in drawings in exhibit A. The applicant said it is only to regularise the rooms in the roof of unit 1 to be storage rooms only.

15 The plans show in fact the main roof of the building extended over the rooms, such that they would have a 2.4 m ceiling height to the full extent of the rooms. When I drew that to the applicant’s attention, the application was not amended, but I was invited to incorporate any requirement for the new drawings in changed orders, or a condition of approval, to reflect the existing roof as built.

16 The applicant wanted the rooms to be allowed to remain as is, in terms of fit out, the respondent said they must be returned to be roof space only.

17 Appeal 10231/2006 is against the order under s 121K and s 121U of the Environmental Planning Assessment Act related to Unit 10, which required:

“In accordance with Order 15 you must comply with development determination No. 2001/00685 dated 9 May 2002 and in particular condition number 1 within 28 days. You must revert the attic area to roof space by removing the following items, the carpet, floor and ceiling sheeting, the skylight, the pull down ladder and reduce the width of the opening to a standard service access point. The attic area must be reverted to common roof space.”

18 These departures from the council approved plans and the Construction Certificate plans appeared to be at least three years old. The strata plan had been issued by another private certifier, a Mr G Wren, and showed the rooms in the roof on title.

19 The Court heard the respondent’s evidence from Ms N Butler, senior planner for the council.

20 The applicant’s evidence was heard from Mr T Byrnes, consultant architect and town planner. They had conferred and produced a joint report in Exhibit 12.

21 The issues in appeal 1157/2005 are:

1. The attic area the subject of the order constitutes gross floor area which results in the floor space ratio of the development on the site exceeding the maximum permissible of 0.7:1 pursuant to clause 36(b) of the Marrickville Local Environmental Plan 2001 .

Particulars
The development application as originally submitted provided for a floor space ratio of 0.74:1. However, it was a requirement of the council’s approval of the original development application that the gross floor area of the development be reduced so as to comply with 0.7:1 floor space ratio development standard.
2. The attic area the subject of the order will create an additional demand for public amenities and services in the area, in that it changes the dwelling classification from a medium to a large dwelling pursuant to the Marrickville s 94 Contributions Plan, 2004 .

3. The attic area the subject of the order was constructed, despite the council’s refusal of an application to modify the development consent, but such application being materially similar to the attic area the subject of the order.

4. The attic area the subject of the order results in the height of the development on the site exceeding the maximum permissible height, as 7.2 metres pursuant to cl 36(c) of the Local Environmental Plan .

5. The dwelling the subject of the order is required to be an adaptable dwelling, which complies with AS4299-1995 adaptable housing, and the provisions of Marrickville Development and Control Plan No. 31 , equity of access and mobility. The provision of an attic area within the dwelling is wholly inconsistent with this requirement.

6. The attic area the subject of the order will remain capable of being used for the purpose of a habitable area if the terms of the order are not adhered to, contrary to the minimum requirements of the building code of Australia.

7. It is contrary to the public interest to permit breach of the Environmental Planning And Assessment Act 1979 to continue.

22 The issues in appeal 11512/2005 are:

1. the attic area constitutes gross floor area which results in the floor space ratio of the development on the site, exceeding the maximum permissible of 0.7 :1 pursuant to clause 36(b) of the Marrickville Local Environmental Plan .

Particulars

The floor base ratio with the attic area is 0.72:1, the development application as originally submitted provided for a floor space ratio of 0.74:1, however it was a requirement of the council’s approval of the original development application that the gross floor area of the development be reduced so as to comply with the 0.7:1 floor space ratio development standard.

2. The attic area will create an additional demand for public amenities and services in the area, in that it changes the dwelling classification from a medium to a large dwelling pursuant to the Marrickville s 94 contributions plan, 2004 .

3. The attic area results in the height of the development on the site exceeding the maximum permissible height of 7.2 m pursuant to cl 36(c) of the Local Environmental Plan.

4. The dwelling is required to be an adaptable dwelling which complies with AS4299-1995 Adaptable Housing and the provisions of the Marrickville Development Control Plan No. 31 Equity of Access of Mobility. The provision of an attic area within the dwelling is wholly inconsistent with this requirements.

5. The pull down ladder will obstruct access to the bathroom, the bathroom door is required to swing outwards into the living room under the requirements of AS4299-1995 Adaptable Housing, and the provisions of the Marrickville Development control Plan No. 31 , Equity of Access and Mobility.

6. It is contrary to the public interest to allow the development consent to be modified to legitimise the attic area.

23 The issues in appeal 10231/2006 are:

1. The attic area, the subject of the order constitutes gross floor area which results in the floor space ratio of the development on the site exceeding the maximum permissible of 0.7:1 pursuant to cl 36(b) of the Marrickville Local Environmental Plan 2001 .

Particulars

The development application as originally submitted provided for a floor space of 0.74:1 however, it was a requirement of the council’s approval of the original development application, that the gross floor area of the development be reduced so as to comply with the 0.7:1 floor space ratio development standard.

2. The attic area the subject of the order will create additional demand for public amenities and services in the area in that it changes the dwelling classification from a medium to a large dwelling, pursuant to the Marrickville s 94 contributions plan, 2004 .

3. The attic area the subject of the order results in the height of the development on the site exceeding the maximum permissible height of 7.2 m pursuant to cl 36(c) of the Local Environmental Plan.

4. In the circumstances of the case it is contrary to the public interest to permit the breach of the Environmental Planning and Assessment Act 1979 to continue, and the planning laws should be enforced accordingly.

24 The order related to Unit 1 and to some extent the order to unit 10 depend on the consideration of the s 96 application. I turn to it first.

25 Mr Byrnes and Miss Butler had a disagreement on what must be counted as floor space in the floor space ratio calculation. In the end it became clear the Marrickville statutes and controls used the model provisions of the Environmental Planning and Assessment Act1979 and general storage areas, are counted in floor space. Therefore the development overall would achieve 0.83:1 floor space ratio, for all 14 units, when 0.7:1 is the standard. With just Units 1 and 10 involved, it reached 0.72:1.

26 Mr Byrnes’ justification for allowing the extra floor space was largely concerning the benefit to the occupants of the development and efficient use of space in the building, as a public interest matter, plus the fact that the extra space would be contained in the existing roof form, provided the section 96 application plans are amended.

27 Miss Butler saw the public interest as being compliance with approved plans, compliance with the floor space ratio, and compliance with the height limit as being the principal public interest matter, in order to control the density, bulk and height of development in the low density Residential 2(a) zone, in order to ensure the orderly control of development, in that particular zone.

28 I bear in mind that the council in considering the original approval had put compliance with floor space ratio and height limits as very important, and this resulted in several amendments to the original plans in attempts to achieve that and, in the final approved plans there was a need for a specific condition to reduce the floor space further than the plans showed to enable compliance.

29 It is my opinion Miss Butler’s evidence carries the greater weight.

30 I do not take any account of her opinion on punishment of the applicant. The council has a period under the statute within which to discover non compliances and take Class 4 proceedings. This did not occur, and so I disregard that component of her evidence. Compliance is all that is required.

31 Also, I agree that in a designated adaptable unit for disabled persons, storage space if included must be accessible also. Disabled persons will have things they want to store and be able to access themselves.

32 It is not reasonable for them to depend on another able person to come into their home and put or find things in and out of storage.

33 Appeal 11512/2005 is refused.

34 In appeal 11157/2005 and appeal 10231/2006 the floor space ratio and the height exceedance are matters of significance that are not justified by the State Environmental Planning Policy No. 1 objection, prepared by Mr Byrnes.

35 I do not need to address the issues on the s 94 contribution as I believe the issues on floor space ratio and height and public interest are determinative. I do not believe the council’s orders are unreasonable. The validity of their issuance has not been challenged.

36 Therefore, the orders of the Court are:

1. Appeals 11157/2005, 11512/2205 and 10231/2006 are dismissed.
2. The exhibits are returned to the parties except Exhibits 2, 3, 4, 5, 6, 7, 8 and Exhibits A, B, C and F.

___________________

K G Hoffman
Commissioner of the Court
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