Jian San Wei v Willoughby City Council

[2018] NSWLEC 1009

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jian San Wei v Willoughby City Council [2018] NSWLEC 1009

Hearing dates:

29 September 2017

Date of orders:

11 January 2018

Decision date:

11 January 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 (1) The appeal is upheld
(2) Order 1295, issued by Willoughby City Council to the Applicant under s.121B of the Environmental Planning and Assessment Act, 1979 requiring the demolition and removal of concrete works within the front setback of the Applicant’s property (18Harden Avenue, Northbridge) is confirmed, subject to the time for compliance with the order being extended to Wednesday 28 February 2018.
(3) The exhibits are returned, with the exception of Exhibits 1and A.

Catchwords:

SECTION 121B ORDER: Order to remove or modify concrete hard stand within front setback. Order confirmed.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Willoughby Local Environment Plan 2012

Cases Cited:

nil

Texts Cited:

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Jian San Wei (Applicant)
Willoughby City Council (Respondent)

Representation:

Mr Jian San Wei ((Applicant in person))
Mr J.P. Merlino (Respondent)

   

Solicitors:

  HWL Ebsworth Lawyers (Respondent)

File Number(s):

2017/45749

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Jian San Wei (the Applicant) has appealed the issuing of Order no. 2915 (the Order) made by Willoughby City Council under section 121B of the Environment Planning and Assessment Act 1979 (EP&A Act).

2. The Order was issued by Willoughby City Council (the Respondent) on 16 January 2017 in relation to an area of red stencilled concrete that has been laid within the front setback area of the Applicant’s dwelling at 18 Harden Avenue Northbridge identified as Lot 16 on DP 4409 (the Subject Site). The Order was a combined Order 2 and Order 12 under s121B of the EP&A Act.

3. The Order requires either:

1. the demolition and removal of the red stencilled concrete from within the front setback (front yard) of the Subject Site; or

2. the demolition and removal from the premises of the red stencilled concrete from within the front setback (front yard) of the premises in accordance with a landscape plan dated 29 September 2016 attached to the Order.

4. The appeal is made pursuant to section 121ZK of the EP&A Act and seeks the revocation of the Order.

5. The Applicant contends that the order is unnecessary and unfair because:

1. the works undertaken are required to meet the car parking needs of the owner of the Subject Site and others living in the property;

2. an occupation certificate granted by Willoughby Council in relation to some complying development works undertaken on the Subject Site, and which the Applicant says was accompanied by a plan including the stencilled driveway area.

3. the Applicant is committed to obtaining a building certificate in relation to the works undertaken in order to regularise the approval of those works.

6. The Subject Site is located near the corner of Sailors Bay Road and Harden Street Northbridge, and is zoned R2 Low Density Residential under the provisions of the Willoughby Local Environment Plan (WLEP) 2012.

7. Dwelling houses are a permissible use, with consent, on the Subject Site. The red stencilled concrete (the concrete works) that is the subject of the Order in this appeal is a structure forming part of the ‘building’, as defined under the EP&A Act, that is the dwelling house on the Subject Site under WLEP 2012. Consequently, under WLEP 2012, the concrete works are development that require consent.

8. The concrete works had been the subject of a previous order (Order 2869) issued by Willoughby City Council on 15 June 2016. That order had been revoked by Council and the Applicant notified of this action by Council.

9. Subsequently, the Respondent advised the Applicant that a new order was to be issued. Notice of the Council’s intention to issue the Order was provided to the Applicant on 30 September 2016. The Order (order 2915) was then issued on 16 January 2017, and it is this Order (made as Orders 2 and 12 under s121B of the EP&A Act) that is the subject of this appeal.

10. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 6 and 13 June 2017. An inspection of the Subject Site was undertaken as part of the conciliation conference.

11. The Parties were unable to resolve the issues within the s34 conciliation process, and so the conciliation was terminated.

12. The Parties consented to me disposing of the proceedings under s34(4((b)(i) of the LEC Act.

13. At the commencement of the hearing the Applicant, who was self-represented, advised that he would be assisted during the hearing by his daughter, Ms Christine Wei.

14. The appeal hearing procedure was explained to Mr Wei and Ms Wei at the commencement of the proceedings, including the conduct of expert witness testimony.

Statutory considerations

15. The EP&A Act provides under s121B:

(1) An order may be given to a person by:

(aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or

(a) a council, or

(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

16. Within the relevant table, order 2 provides that:

1. an order may be given:

To demolish or remove a building;

2. where the following circumstances exist:

a) Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required

(b) Building is or is likely to become a danger to the public

(c) Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood

(d) Building is erected without prior approval of council, in a case where prior approval was required under the Local Government Act 1919 or the Local Government Act 1993 when the erection of the building commenced.

3. and the person to who the order is directed is the:

Owner of building

17. Within the relevant table, order 2 also provides that:

1. an order may be given:

To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out

2. where the following circumstances exist:

(a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed (b) Work has been unlawfully carried out.

3. and the person to who the order is directed is:

The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate.

18. The EP&A Act also provides under s121ZK:

(1) A person on whom an order is served may appeal against the order to the Court.

(2) However, a person may not appeal against order No 6 in the Table to section 121B if the order is given by an authorised fire officer (as referred to in section 121ZC (6)).

(3) The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 121R, within 28 days after the service of the order given under section 121R on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.

(4) On hearing an appeal, the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

19. Development on the Subject Site is subject to the Willoughby Local Environment Plan 2012 (WLEP 2012). Under WLEP 2012 the Subject Site is zoned R2 Residential.

20. Schedule 2 of WLEP identifies works that are exempt from development consent, and Schedule 3 identifies works that are complying development. These refer to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP).

21. Section 1.15 defines works that may be considered exempt development under the SEPP, as follows:

(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.

(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.

22. Subdivision 14 of the SEPP provides development standards for Driveways and Hardstand Spaces. Section 2.28 of that subdivision provides:

The standards specified for that development are that the development must:

(a) be constructed or installed so that any surface water or runoff is disposed of by a drainage system that is connected to the existing stormwater drainage system, and

(b) be constructed in accordance with AS/NZS 2890.1:2004, Parking facilities, Part 1: Off-street car parking or AS: 2890.2—2002, Parking facilities, Part 2: Off-street commercial vehicle facilities, and

(c) if the development is ancillary development to a dwelling—not require cut or fill more than 600mm below or above ground level (existing), and

(d) if the development is not ancillary development to a dwelling—not require cut or fill more than 1m below or above ground level (existing), and

(e) if the development is a driveway:

(i) not be wider than the open hard stand space, carport or garage with which it is associated, and

(ii) be constructed in accordance with the relevant road authority’s policy and specifications on vehicle and driveway crossings, and

(iii) be subject to written consent from the relevant roads authority (if required under section 138 of the Roads Act 1993) for the building of any kerb, crossover or driveway, and

(f) if the development is a hard stand space:

(i) measure at least 2.6m wide by 5.4m long, and

(ii) have an area of not more than 20m2, and

(iii) if the development is ancillary to a dwelling—be located at least 1m behind the building line of any road frontage (other than a laneway) and at least 900mm from each side or rear boundary, and

(iv) in any other case—be located clear of any required landscaped area, and

(g) if the development is constructed or installed in a residential zone or rural zone—not result in the total area of all driveways or hard stand spaces, pathways and paved areas on the lot exceeding 15% of the area of the lot or 150m2, whichever is the lesser, and

(h) if constructed or installed in a residential zone:

(i) if a lot has a width at the front building line of not more than 18m—have at least 25% of the area forward of the building line as landscaped area, and

(ii) if a lot has a width at the front building line of more than 18m—have at least 50% of the area forward of the building line as landscaped area.

23. Development on the Subject Site is also subject to the provisions of the Willoughby Development Control Plan (WDCP 2006) which provides detailed guidelines and environmental controls to guide development within the Willoughby local government area. It supports the objectives and planning provisions contained within Willoughby Local Environmental Plan 2012.

24. Within WDCP 2006 the Subject Site is located within the Northbridge locality, and the desired future character of the streetscape in this locality is described as:

dwellings in streets of rectangular grid pattern have a general consistency in front building alignment, with moderately deep front setback areas of informally landscaped gardens with wide grassed verges , set behind low masonry or timber palisade fencing of not more than 1m in height.

25. MDCP 2012 includes within the performance criteria for achievement of the character, design, streetscape and view shearing objectives of the Northbridge locality, the following specific criteria:

10. Provision must be made for landscaping within the front setback to complement landscape features of the Street and to integrate the new development into the street. Large expanses of hard surfaces should be avoided (eg concrete driveways) and softened by the use of landscaping.

Contentions

26. The Respondent’s Statement of Facts and Contentions had said that the works undertaken by the Applicant:

1. were development undertaken without consent, where consent was required;

2. had streetscape and amenity impacts;

3. did not provide the required minimum landscaped area;

4. did not manage stormwater runoff.

27. The Applicant had said that he had complied with the previous order (Order 2896) issued by Council and that this was sufficient basis for the revocation of the order which is the subject of the current appeal.

28. As noted above at [8], that previous order had been revoked by Council. The Respondent said that as a consequence that previous order was not a matter that required consideration in the current appeal.

29. Having reviewed information provided by the respondent I agree that the previous order was lawfully revoked and that it is not a matter to be addressed in the current appeal.

30. The Applicant stated that, in his opinion, the Order which is the subject of this appeal was unfair because it had been issued without a statutory basis and it had been issued in haste without giving adequate consideration to the proposals of the Applicant to remedy the concerns of the Respondent.

31. Having considered the Applicant’s submission that the Order was unfair, I find that the order was issued by Council in line with the powers and requirements provided to it under s121B of the EP&A Act, including the adequate notification of the Applicant of its intent to issue the order, and its consideration of responses provided by the Applicant. I also find that the Respondent had provided adequate time for the Applicant to take the action required under the Order.

32. The central matter for resolution in this appeal is whether, as contended by the Respondent, the works undertaken by the Applicant represented development undertaken without consent, where consent was required.

33. Resolution of this matter requires that the following questions be addressed in this judgment:

1. are the works undertaken by the applicant exempt development under the SEPP?

2. are the works undertaken by the Applicant complying development under the SEPP?

3. are the works undertaken by the Applicant subject to any other lawful development consent?

34. I will adopt these three questions as the principle structure for this judgement.

35. The issues relating to streetscape and amenity impacts the scale of landscaping provided by the Applicant and the management of stormwater run-off from the works form part of the consideration in respect of determining the responses to each of these three questions.

36. Finally, the Applicant proposed during the hearing that certain amendments be made to the plan prepared by Council as an attachment to its Order, and that the Applicant’s amended plan be the basis for modification of the Order by the Court.

37. The above matters, together with the adequacy of Applicant’s proposed amended plan for modification of the works sought by Council under the order, were the subject of expert testimony during the hearing that was provided by:

1. Mr Mark Fisher, Development and Enforcement Officer for Willoughby City Council

2. Mr Joseph Bazergy, the Development Engineering Team Leader for Willoughby City Council

3. Mr Arthur Tsembis, the development assessment Ofc for Willoughby City Council.

38. The Applicant did not seek to call expert testimony in support of his submissions during the hearing.

Are the works undertaken by the applicant exempt development under the SEPP?

39. Part 2 subdivision 14, section 2.28, of the SEPP provides development standards to be met in order that the construction of any driveway or hard stand space to be exempt development.

40. The Respondent said in submissions that the works undertaken by the Applicant failed to meet the following standards under the requirements of section 2.28 of the SEPP:

1. 2.28 (a), as the driveway of hard stand space in on the subject site had not been constructed or installed so that any surface water or run-off would be disposed of by a drainage system that is connected to the existing stormwater drainage system;

2. 2.28 (e)(i), as the driveway is wider than the garage with which it is associated;

3. 2.28 (f)(ii), as the hard stand space has an area of more than 20 m²;

4. 2.28)f)(iii), as the hard sent space is ancillary to the dwelling is not located 1m behind the building line of the road frontage of the property.

41. The Respondent also said that the concrete works could not fall within the exempt development for pathways and paving under the SEPP’s subdivision 28 as driveways, hard stand spaces and turning or parking areas were specifically excluded from that subdivision under clause 2.55(2) of the SEPP.

42. These submissions were not challenged by the Applicant during the hearing.

43. During the Court’s inspection of the Subject Site as part of the s34 conciliation conference, the Respondent’s experts had identified that the works undertaken by the Applicant did not include measures to intercept stormwater flows from the area of concrete works such that those flows would be diverted away from the neighbouring the north of the Subject Site.

44. Based on the submission of the Respondent, supported the evidence of the experts tendered during the hearing, including plans of the works undertaken by the Applicant, I agree with the Respondent that the works undertaken by the Applicant are not constructed such that they meet the requirements to be exempt development under the provisions of the SEPP.

Are the works undertaken by the Applicant complying development under the SEPP?

45. The Applicant submitted that the driveway and hard stand area concrete works constructed within at the front setback area of the Subject Site had been completed as part of approved complying development works completed on the Subject Site.

46. It was common ground between the Parties that the dwelling on the Subject Site had been the subject of alterations and additions to the existing dwelling and that these works had been the subject of complying development certificate issued in accordance with the provisions of SEPP and the State Environmental Planning Policy (Affordable Rental Housing) 2009.

47. The Respondent said that complying development certificate (CDC) 442/12 was issued for these works on 26 November 2012 by Southern Certifiers. A copy of the CDC was tendered as evidence during the hearing.

48. CDC 442/12 provided a description of works to be undertaken as ‘Alterations and additions – issued in accordance with State Environmental Planning policy (Exempt and Complying Development Codes) 2008, and included, as attachments, plans prepared by Burda Design Pty Ltd (Project 12-08), a BASIX Certificate (A150028) and conditions.

45. Having reviewed the documentation associated with CDC 422/12, I find that there is no basis within with the CDC that would provide an approval for the concrete works undertaken the Applicant.

Are the works undertaken by the Applicant subject to any other lawful development consent?

50. The Applicant sought to rely on a Final Occupation Certificate (the OC) issued by Southern Certifiers on 11 April 2017 in respect of CDC 422/12 as confirming that the concrete works undertaken by the Applicant..

51. The Applicant said that a copy of a landscaping plan for the front of the Subject Site, drawn on 21 July 2016, and depicting the driveway and hard stand area constructed by the Applicant, formed past of the OC, and on that basis he understood the concrete works to have been approved.

52. In response, the Respondent said that the OC relied upon by the Applicant only related to the works approved under CDC 422/12, as confirmed in the OC. The Respondent said that the OC, which was tendered as evidence, did not include reference to the landscape plan depicting the driveway and hard stand area.

53. The Respondent submitted that the landscaping plan could not form part of CDC 422/12, nor the OC relating to the CDC, and that neither document could be relied upon as having provided approval for the works undertaken by the Applicant.

54. Having reviewed the documentation tendered as evidence, I agree with the submission of the Respondent that no development consent or approval is available to the Applicant in relation to the concrete works undertaken in the front setback of the Subject Site.

55. I conclude that the concrete works undertaken by the Applicant are development that has been undertaken without consent, where consent was required.

Should the Order be modified to reflect the proposed amendment to the landscape plan accompanying the Order?

56. During the hearing the Applicant proposed that the plan prepared by Council for landscaping works to be completed under the Order should be amended. The Applicant’s proposed amended plan was the subject of testimony by the expert witnesses identified at [37].

57. In response to questions from the Respondent:

1. Mr Tsembis said that he would not recommend the approval of the Applicant’s amended plan because it:

1. lacked adequate detail;

2. did not confirm that it would meet the area requirements of WDCP 2012 for soft landscaping;

3. did not address Council’s concerns in relation to stormwater management.

2. Mr Bazergy said that he would not recommend approval of the amended plan for the following engineering reasons:

1. the plan did not include specific proposals for managing of stormwater flows that would be generated by the concrete works;

2. the plan did not provide adequate space for the manoeuvring of a vehicle such that it could safely exit the Subject Site at a 90 degree angle to the footpath, and so presented a danger to pedestrians.

58. In response to questions from the Applicant:

1. Mr Fisher said that he had prepared the landscape plan accompanying the Order, and that it had been drafted such that it would be consistent with the outcome meeting the requirements to be exempt development under the SEPP while providing access to the garage and house on the Subject Site.

2. Mr Bazergy confirmed that:

1. his opinion expressed at [57(2)(b)] was based on his assessment of the swept path required to safely manoeuvre a vehicle to facilitate exit in a forward direction, which he said required a greater width than was available and an area of 6m behind the behind the vehicle parking space proposed in the Applicant’s amended plan;

2. he was unable to confirm from evidence tendered at the hearing whether the dimensions of a parking area located within the front setback of a neighbouring property to the north of the Subject Site was satisfactory in relation to the safe exit of a vehicle.

59. No other expert evidence adduced by the Applicant in support his proposed amendments to the landscape plan prepared by Council.

60. Based on the evidence of the experts I have concluded that the amended plan proposed by the Applicant does not provide an acceptable basis for modification of the Order.

Should the Order be modified in any other aspect?

61. The Order (Order 2915) issued by Willoughby City Council was issued on 16 January 2017 and required that the completion of all works under the order within thirty (30) days of the date its issue.

62. Given that this time period has passed, and in line with the powers granted the Court under s121ZK of the EP&A Act to modify the Order, I have decided that the date for completion of works under the Order should be amended such that those works are completed by the Applicant by no later than Wednesday 28 February 2018.

Conclusion

63. Based on the above considerations, I am satisfied that:

1. the works undertaken by the Applicant are not constructed such that they meet the requirements to be exempt development under the provisions of the SEPP;

2. there is no basis within the CDC that would provide an approval for the concrete works undertaken the Applicant;

3. no development consent or approval is available to the Applicant in relation to the concrete works undertaken in the front setback of the Subject Site;

4. the concrete works undertaken by the Applicant are development that has been undertaken without consent, where consent was required.

5. the amended plan proposed by the Applicant did not provide an acceptable basis for modification of the Order.

64. I conclude that:

1. in line with the powers granted the Court under s121ZK of the EP&A Act to modify the Order, the date for completion of works under the Order should be amended such that those works are completed by the Applicant by no later than Wednesday 28 February 2018;

2. all other requirements of the Order shall not be modified.

Orders

65. The Court orders that:

1. The appeal is upheld.

2. Order 1295, issued by Willoughby City Council to the Applicant under s.121B of the Environmental Planning and Assessment Act, 1979 requiring the demolition and removal of concrete works within the front setback of the Applicant’s property (18 Harden Avenue, Northbridge) is confirmed, subject to the time for compliance with the order being extended to Wednesday 28 February 2018.

3. The exhibits are returned with the exception of Exhibits 1 and A.

………………………….

Michael Chilcott

Commissioner

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Decision last updated: 12 January 2018