John Griffin v Hurstville City Council
[2003] NSWLEC 299
•11/17/2003
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Land and Environment Court
of New South Wales
CITATION: John Griffin v Hurstville City Council [2003] NSWLEC 299 PARTIES: Applicant
Respondent
John Griffin
Hurstville City CouncilFILE NUMBER(S): 10850 of 2003 CORAM: Watts C KEY ISSUES: Appeal :- whether or not the order should be confirmed LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 121
Hurstville Local Environmental Plan 1994 (HLEP)CASES CITED: DATES OF HEARING: 14/11/03 - 17/11/03 EX TEMPORE
JUDGMENT DATE :
11/17/2003LEGAL REPRESENTATIVES: Respondent
Applicant
Mr D R Parry
instructed by Mr D Simpson
Dan Simpson & Associates
Mr P R Rigg
instructed by Deacons
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10850 of 2003
17 November 2003Watts C
- Applicant
- Respondent
1 This is an appeal [10850 of 2003] under s 121ZK of the Environmental Planning and Assessment Act 1979, against the Order No 15 issued by the Hurstville City Council (the council) under s 121B of the Act, requesting the applicant to comply with the development consent granted by the council in respect of Lots 1, 2 and 3, DP 3181, being No 53-55 Morts Road, Mortdale. This appeal was heard with Appeal No 10982 of 2003, which relates to the failure of the council to issue a building certificate for the same works.
2 The works that have been allegedly undertaken without consent and relate the completion of an approved mixed-use building with a metal deck roof instead of a tiled roof.
3 I visited the land in company with the parties on the first day of the proceedings.
4 I have concluded that that if the ‘Colourbond’ roof on the northwestern side of the proposal were covered by expanded metal coloured ‘Windspray’ or equal, the glare would be reduced to an acceptable level when viewed from the neighbouring properties. This would also result in the reduction of the heat load within the proposal. The adverse visual impact would be slight and the streetscape would remain largely unchanged.
The land
5 The land is situated on the northwestern corner of the intersection of Morts Road and Station Street at the northern end of the Mortdale town centre, which comprises a mix of retail, commercial and residential uses on both sides of Morts Road. A recently completed mixed-use development of rendered masonry construction with a flat roof behind a parapet stands on the southwestern corner of the intersection.
6 The land is rectangular with a frontage to Morts Road of 18.58m and a depth along the Station Street alignment of 33.53m, and an area of about 623m2.
7 To the west, north and east is residential in character with a variety of built forms including single dwellings and three-storey residential flat buildings, mostly of brick construction with pitched tiled roofs.
8 Erected on the land is a recently completed mixed-use building: comprising retail uses on part of the lower level with residential units above. This building presents to Morts Road as being three storeys in height with two storeys of residential over a partially underground car parking floor with vehicular access from Station Street. It is of face-brick construction with a ‘Gull Grey’ ‘Colourbond’ corrugated metal-pitched roof.
Relevant planning controls
9 Under the provisions of the Hurstville Local Environmental Plan 1994, (HLEP), the land is zoned for 3(c) - Business Centre and the proposed use is permissible with consent.
The consent and works
10 The respondent granted consent for the mixed-use development on the land in respect of DA 20010742 in February 2002. This appeal relates to the completion of the building on the land with a ‘Colourbond’ corrugated metal roof instead of the tiled roof that was indicated on the approved development consent plans. The building works were completed earlier this year under a construction certificate and associated drawings that indicated the roof to be of metal decking.
The council’s decision in respect of the orders
11 By notice dated 17 June 2003, the council issued the orders requiring the development to be constructed in accordance with the approved plans. A schedule prepared by Mr Young, of the council, indicates the history of the council’s deliberations.
Relevant History
28/09/01 Development Application 20010742 made to Council for the
construction of a mixed development comprising 10 residential units,
commercial/retail space and basement parking.01/11/01 Proposal considered by the Urban Design Review Panel and recommendations made for some minor redesign. 12/12/01 Council considered a report recommending a Deferred Commencement Consent, subject to a condition requiring redesign to deal with landscaping and privacy issues. However, Council resolved "that the application be deferred for redesign to achieve the objectives of Council's Codes and reduce privacy impacts on adjoining premises, and further, that following redesign, the application be submitted to a future Development Assessment Committee meeting for consideration". 14/12/01 Appeal 11049 of 2001 was lodged with the Land and Environment Court against Council's Deemed Refusal of the application. Negotiations were entered into to resolve the design issues. 30/01/02 Council granted consent to the proposal on the basis of amended plans which addressed the privacy and landscape issues. These plans indicated a tiled roof. The plans are now missing from Council's files. 01/02/02 A notice of discontinuance of the Appeal was entered at the Court. 08/07/02 Construction Certificate for building issued by Accredited Certifiers Inspec (Paul Gearin, Acc. No 1104). 11/10/02 Section 96 modification application AD 107/02 submitted to Council for the approval of loft areas in the roof space of the townhouse type dwellings. 5/11/02 Notice of Determination issued for lofts in townhouse type dwellings. January 2003 Complaints received by Council concerning glare from ‘Colorbond’ roofing being installed on subject building. Developer informed of complaint. 22/01/03 Section 96 modification application AD 5/03 lodged with Council to change roof to ‘Colorbond’ roof under construction. Neighbouring property owners in locality notified on 23/01/03. 14/2/03 Developer informed by letter of opposition by neighbours to light coloured roofing and requesting that alternative roofing be considered. 05/03/03 Council considered a report on Section 96 application to modify roof cladding and resolved: “A. THAT, pursuant to powers vested in Council by Section 80(1) of the Environmental Planning and Assessment Act, 1979, the Council, as the consent authority, reject the Section 96 Modification (AD 5/03) which sought permission to amend the approved roof form from the to metal deck (off white in colour) on land known as Lots 1, 2, and 3, Section 2, DP 3181, 53-SS Morts Road, Mortdale. B. THAT, Council enforce the original Development Application (DA 20010742) and require the applicant to revert back to a the roof form. C THAT, a formal letter of complaint be made to PlanningNSW against the Private Certifier far issuing a Construction Certificate which varied from the approved Development Application Plans. D. THAT, Council commence proceedings against the builder/applicant for the illegal building work. " 02/04/03 Applicant informed of Council's decision. April 2003 Enquiries made by applicant regarding use of American shingles. Applicant advised that a Section 96 application would be necessary. Subsequently advised that proposed product is not incombustible and therefore precluded from use on this building of TYPE A construction by the Building Code of Australia.
The hearing
12 The appeal was filed on 7 August 2003 against the order.
13 At the hearing the court received evidence on behalf of the respondent council from:
- Mr G G Young, Manager, Development Control, Hurstville City Council;
14 Ms L Lanesbury, of No 12/ 57-59 Morts Road showed the Court around her building and gave access to Mr Hossain’s Unit 14/ 57-59 Morts Road and her unit at 12/ 57-59 Morts Road.
15 On behalf of the applicant evidence was given by:
- Mr H M Sanders, consultant town planner;
- Dr M Glanville, environmental engineer; and
- Mr V Topolinsky, structural engineer.
16 On 17 September 2003 the applicant filed a statement of issues.
Validity of Order
Effect of Building Certificate1. Whether the Order is invalid, because the period of 28 days specified for compliance in the Order is unreasonable to effect the complete re-roofing of the building from a metal deck roof to a the roof, contrary to s 121M of the Environmental Planning and Assessment Act 1979 (“EP&A Act”).
2. Whether, if the Court directs or is minded to direct the Respondent in proceedings no. 10982/03 to issue a building certificate to the Applicant in relation to the subject building pursuant to s 149F(3)(a) of the EP&A Act, the appeal against the Order should be upheld, because the effect of a building certificate once granted is, in accordance with s.149E of the EP&A Act, to prevent the Respondent from giving an Order which requires the building to be altered.
Merit Issues
3. Whether the Order is reasonable, given that:
(i) the Respondent was provided with the construction certificate and the endorsed plans issued by the Principal Certifying Authority in accordance with condition 48(ii) of the consent to DA 20010742, which clearly showed that the building was to be erected with a metal deck roof, prior to the commencement of any building work;(ii) the Respondent was notified in accordance with condition 50 of the consent to DA 20010742 of the intended commencement of building works;
(iii) the roof of the building was constructed in accordance with the construction certificate and the endorsed plans issued by the Principal Certifying Authority; and
(iv) the Respondent sought the alteration of the roof from the roof nominated in the construction certificate and the endorsed plans issued by the Principal Certifying Authority only after the completion of the roof.
4. Whether the Order is reasonable in light of the waste of non-renewable resources and significant cost which would be involved in complying with the Order after completion of the building.
5. Whether compliance with the Order will result in adverse internal amenity impacts.
17 The salient issue in Appeal No 10850 of 2003 is whether or not the order should be confirmed.
The evidence and findings
Whether or not the order should be confirmed
18 The council’s expert and the applicant’s experts met to discuss the possibility of an alternative sheeting material that would reduce the glare from the northwestern face of the building the subject of the order. The Court on the site inspection examined the specular glare from the northwestern face of that roof. Dr Glanville had calculated that the maximum specular glare experienced in the neighbouring units would occur around 11.00am mostly around the equinox and in the summer.
19 There was some glare noticed from the front higher roof of the building and this was not directly in the main view corridor of people standing on the neighbouring balconies.
20 The parties discussed an option to sheet the offending northwestern roof surface with expanded metal coloured ‘Windspray’. A test sample similar to that proposed was placed on the front roof on 17 November 2003 and the neighbours were asked to comment. Although not wholly satisfied these neighbours, accepted the glare improvement and raised no objection to the Court making its decision.
21 There was no objection to the ‘Colourbond’ corrugated roofing material in the streetscape provided it was consistent with the roofing at the rear. The visual impact of the rear section of the roof to be covered by the expanded metal would be slight.
22 Mr Sanders opined after having assessed the building’s presentation to the street and its relationship with the other existing development in the locality said that.
- …whilst the materials that have been used for the roof are different from the materials that have generally been used for such buildings (save for the important exception of the recently completed building to the immediate south…) this difference does not lead to any adverse impacts or negative consequences as a result of the manner in which the building presents to the public domain. Indeed, it is my opinion, that it stands as an attractive contrast to such other development and that it uses traditional materials in a contemporary manner that serves to enhance the streetscape in this part of the Town Centre rather than detract from it. I would also note that the metal decking has a natural metallic finish rather than being "coloured", as described in the Issue.
23 He concluded:
It is my opinion that the use of metal decking for the roof of the subject building has not led to any adverse impacts on the streetscape or any loss of amenity to the locality.
Accordingly, it is my opinion that a building certificate should appropriately be issued for the subject building and that it would not be appropriate or in the public interest for the Order that has been made in respect of the subject property to be pursued.
24 I accept that the proposed covering by expanded metal of the ‘Colourbond’ roofing would not adversely impact on the streetscape appearance of the proposal. I also accept that the glare would be reduced to an acceptable level were the rear section of the roof opposite the balconies of Nos 57-59 Morts Road sheeted in expanded metal coloured ‘Windspray’ or similar. Thus I propose to replace the order.
25 For the above reasons, the appeal is upheld in part.
26 The second appeal [10982 of 2003] may be resolved in favour of the applicant having regard for the decision in this appeal.
Orders
27 My orders are:
1. The appeal is upheld in part.
2. Pursuant to s 121ZK(4) of the Environmental Planning and Assessment Act 1979, the Order given by the respondent to the applicant on 27 June 2003 is revoked and the following Order is substituted:
The applicant shall, within 42 days of the date of this Order, affix to the uppermost 7.2m of the main northwestern roof face immediately below the ridge cap of the building erected at Nos 53–55 Morts Road, Mortdale continuous BHP ‘Ornamesh’ type Q panels of dimensions 1.2m x 1.2m in ‘Windspray’ colour or similar.
3. The exhibits are returned.
S J Watts
Commissioner of the Court
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