Joseph v Lane Cove Council
[2012] NSWLEC 1013
•24 January 2012
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Joseph v Lane Cove Council [2012] NSWLEC 1013 Hearing dates: 16 December 2011 Decision date: 24 January 2012 Jurisdiction: Class 1 Before: Morris C Decision: In matter No. 10737 of 2011 the appeal is upheld in part.
In matter No. 11012 of 2011 the appeal is upheld.
Catchwords: Whether development is exempt development; cabana; impacts on adjoining property; whether structure is capable of use as a dwelling Legislation Cited: Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008Texts Cited: Lane Cove Development Control Plan Category: Principal judgment Parties: Mrs Cheryl Jose Joseph (Applicant)
Lane Cove Council (Respondent)Representation: Ms M Taylor
Mr I Woodward
Bartier Perry (Applicant)
Storey & Gough Lawyers (Respondent)
File Number(s): 10737 of 2011 11012 of 2011
Judgment
These are two appeals, one against an Order issued by Lane Cove Council requiring the demolition and removal of a building structure (10737 of 2011) and the second against the deemed refusal by the council of an application to issue a building certificate (11012 of 2011) for that same structure which had been erected at No. 67 Riverview Street, Riverview. As both appeals relate to the same structure, the matters were heard concurrently in the interest of a cheap and quick resolution of the issues.
The matters in the case are whether the structure should be demolished or if it is to be retained, whether any changes to its construction are required so that it is consistent with the council's planning controls and addresses concerns of neighbours, particularly in relation to noise and privacy. The applicant argues that, provided the cladding material used to complete the building is pre-coloured metal cladding, the structure would be Exempt Development under the provisions of Part 2, Division 1, Subdivision 9 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) and therefore consent is not required from the council for the building. The council says that the structure is not a 'cabana' and those provisions do not apply and regardless of its categorisation, it is not exempt development as galvanised metal cladding has been attached to the southern face of the building and the building, as constructed, is capable of being used as a dwelling.
Background
The applicant in both proceedings, Mrs Joseph, is the owner of the site and had contracted the construction of an outbuilding in the lower, western corner of the property. No development consent or any other form of approval had been obtained from either the council or a private certifier to authorise that construction. The council had received a number of complaints that alleged the building was an illegal structure and that it would, when completed impact the amenity of their property, particularly in relation to noise and overlooking. On 26 July 2011, the council issued an Order requiring the demolition and removal of the structure.
Mrs Joseph lodged an application for a building certificate seeking retrospective consent for the structure as built. At the time of lodging the second appeal, which is in relation to that certificate, the council had not determined the application. It had issued advice in correspondence dated 4 October 2011 of works required to modify the building to enable the council to make a determination of that application. Those works are:
(1) The external wall height of the structure must be reduced to 2.1 metres for the proposed cabana structure to comply with clause 1.9.3(b) of Lane Cove Council's Development Control Plan and is not to be used for habitable purposes.
(2) The cabana structure must have open walls on two sides of the structure i.e. open to the lower garden and open to the existing dwelling. The two remaining external walls facing both boundaries are to be closed.
(3) The two timber windows are to be removed.
(4) All sewer, water and power services including the electrical data cabling are to be removed from the cabana structure.
(5) The structure is to be externally clad with either timber shingles or timber cladding to complement and blend into the surrounding bushland.
(6) Submit building plans stamped by Sydney Water/Quick check agent for the building cabana structure.
Mrs Joseph is appealing the Order issued by the council and the deemed refusal of the building certificate application.
The site and its context
The site is a battle-axe allotment located on the western side of Riverview Street. It falls steeply from the road to the rear boundary, with a fall of 13.76m over a distance of 48m. The site has an area of 990.5sqm, is well vegetated and the understorey of the significant trees has been recently modified and landscaped. Because of its battle-axe configuration, the site shares boundaries with a number of adjoining residential properties.
A split-level dwelling house and a detached carport are currently erected on the site. The carport is constructed at RL37.85 and the lower floor of the dwelling at RL33.11. The structure the subject of the appeal is in an advanced stage of construction and is located in the lower, western corner of the site. The floor slab is constructed at RL26.28 and its ridge at RL29.14.
The structure
The structure is described in the documents submitted to the council with the building certificate application as a 'cabana'. It has external dimensions of 5.92m by 2.75m and gross floor area of 14.59sqm. A patio attached to the northern face of the structure increases the footprint to 16.28sqm. The building is set back 930mm from the rear, western boundary and 910mm from the southern side boundary at the closest points however, as it is not erected parallel to either boundary, the distance is greater in other locations. The fence that divides the site from the adjoining property to the west, No. 87 Riverview Street is erected within the site and therefore, the building appears to be closer to the boundary than is actually the case. A survey certificate has been prepared that details the precise location of the building and was tendered as part of Exhibit B.
The structure has a maximum floor height of 230mm, a maximum eave height of 2.51m and maximum ridge height of 2.97m above ground level. It is a timber-framed building with a low-pitched roof above the main section and a flat roof above its eastern portion. It is designed as two rooms with the use of the larger room described as an entertainment room and the smaller room as storage on the plans lodged with the Court. A large opening into which a three-panelled door would be fitted opens onto a patio at the northern face of the building. Provision for smaller windows has been made in the eastern wall of the storage room and the western wall of the entertainment room. Provision for plumbing to provide toilet and shower facilities has been made within the 'storage room' and electrical and data cabling has also been installed.
The issues
The council contends that the building is not exempt development specified under SEPP2008 as it is not a 'cabana' and is properly characterised as a detached studio building because it has been built with provision of plumbing and electrical conduit for power and data cabling, its internal walls and ceilings are to be lined and it is capable of use as a dwelling. It also says that the building has detrimental impacts to the adjoining property located at No. 87 Riverview Street in terms of loss of privacy and the building's imposing height, which it says is visually obtrusive when viewed from that property. Non-compliance with the council's planning controls is also a contention and it says that for these reasons the building certificate should not be issued.
In relation to the Order, the council contends that the structure should be demolished as it is not compatible with the locality, it is capable of habitation, it has detrimental impacts to No. 87 Riverview Street as described in [10] and is inconsistent with the council's planning controls.
The planning controls
The site is zoned R2 Low Density Residential under the provisions of Lane Cove Local Environmental Plan 2009 (the LEP) . Dwelling houses are permitted with consent in that zone and accordingly, any structures ancillary to a dwelling would also be permissible with consent. Part 4 of the LEP contains a number of development standards and those relevant to the application are floor space ratio and height. There is no dispute that the structure would comply with those standards.
The aim of SEPP2008 is to provide streamlined assessment processes for development that complies with specified development standards by:
(a) providing exempt and complying development codes that have State-wide application, and
(b) identifying, in the General Exempt Development Code, types of development that are of minimal environmental impact that may be carried out without the need for development consent.....
Part 2, Subdivision 9 specifies in clause 2.17 of SEPP2008 that the construction or installation of a cabana, cubby house, fernery, garden shed, gazebo or greenhouse is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or on land in a foreshore area. The site or any of the buildings on the site are not listed heritage items and the land is not in a foreshore area. Clause 2.18 lists development standards that must be satisfied for these forms of development to be Exempt Development. They are:
(1) The standards specified for that development are that the development must:
(a) (Repealed)
(b) not have a floor area of more than:
(i) on land in Zone RU1, RU2, RU3, RU4 or R5-50m 2 , or
(ii) on land in any other zone-20m 2 , and
(c) be not higher than 3m above ground level (existing), and
(d) be located at least 900mm from each lot boundary, and
(e) if it is not on land in Zone RU1, RU2, RU3 or RU4-be located behind the building line of any road frontage, and
(f) not be a shipping container, and
(g) be constructed or installed so that roofwater is disposed of without causing a nuisance to adjoining owners, and
(h) to the extent it is comprised of metal components-be constructed of low reflective, factory pre-coloured materials if it is located on land in a residential zone, and
(i) if it is located on bush fire prone land and is less than 5m from a dwelling-be constructed of non-combustible material, and
(j) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area-be located in the rear yard, and
(k) if it is located adjacent to another building-be located so that it does not interfere with the entry to, or exit from, or the fire safety measures contained within, that building.
(2) There must not be more than 2 developments per lot.
There is no definition of cabana contained in the SEPP or any other related environmental planning instruments.
The Lane Cove Development Control Plan (the DCP) also applies to the site. The most recent version of the DCP took effect on 9 December 2011 and contains provisions for outbuildings at clause 1.10.3. These state:
a) Outbuildings (including detached garages) are to be of a design, and use materials and colours, compatible with the locality.
b) Outbuildings shall not exceed one storey up to a maximum of 3.6m in height. The maximum external wall height is 2.4m.
c) Consideration may be given to proposals having a maximum height in excess of 3.6m where the proposal is sited on sloping ground, has a minimum setback of 900mm from the boundaries and Council is satisfied that the proposal will not materially effect the amenity of any adjoining site.
d) The total area of outbuildings is not to exceed 50m 2 .
e) Outbuildings are to be located behind the front building line of the dwelling (except in the case of carports or garages in certain circumstances).
f) Windows in outbuildings are to be located a minimum of 900m from side or rear boundaries.
g) Outbuildings are not to be located in view corridors and are not to be used as a dwelling.
h) Attics in outbuildings are to be fully contained in the existing roof, accessed only by pulldown ladders and are not to contain windows.
At the time the application was lodged, the maximum wall height allowed under the DCP was 2.1m and it is on that basis that the town planning experts have prepared their reports.
The Council did not at any stage during the hearing advise the Court of the changes it had made to its DCP and therefore consideration of that issue was not made by the experts nor was it addressed in the submissions of the parties. The Court became aware of the change prior to judgment in the cases being delivered, an unacceptable situation which should have not occurred as it is the responsibility of the council to ensure the Court is referred to its current planning controls and argue which should be applied and the weight to be given to the alternate. As this issue was not addressed during the hearing the parties were requested to provide brief submissions on the effect of those changes which affected the time and costs involved in determination of the matter.
The evidence
The hearing was conducted on site and included an inspection of the structure and, in the company of the owners of two adjoining properties, Nos. 85 and 87 Riverview Street where evidence was heard from those owners of their concerns in relation to the structure. The owner of No. 87 was concerned about the proximity of the structure to her main area of open space and the overlooking from the window within the western wall, the noise that could be generated, the potential use of the building as a separate dwelling and its size and scale. The owner of No. 85 was concerned about the loss of vegetation on the site, the building's visual impact and its potential occupation as a dwelling.
Expert town planning evidence was heard from Mr B Daintry for the applicant and Mr M Mason for the council.
Mr Daintry describes the structure as a 'cabana'. He provides the following definition of a cabana from the Macquarie Dictionary:
(1) US a cabin; cottage; hut.
(2) A small hut or cabin beside a swimming pool.
(3) A cabin or self-contained unit which is part of a hotel complex. [Spanish].
and says that it can reasonably be described as a "cabin or hut".
Mr Mason says that the structure is a studio apartment as it is capable of being used as a dwelling due to the installation of plumbing and electrical conduits. He contends a cabana does not have walls and is a lightweight structure generally with an earth floor. Whilst not agreeing on the precise definition of the structure, both experts agree that the building would be an 'outbuilding' for the purposes of the council's DCP.
During the hearing, the applicant agreed to make several amendments to the building. These include the treatment of the western window with translucent glass, the installation of a privacy screen to the west of the patio, the capping of the plumbing and the planting of appropriate shrubs to screen the building from No. 87 and the use of dark, recessive, neutral, pre-painted metal cladding for the walls.
In addition, an offer to impose a positive covenant on the title of the land to ensure that the structure is not used as a separate or ancillary domicile was made. Mr Mason agreed that this would address the council's concerns in relation to the use of the building.
The experts agree that the 900mm setback provided to the side and rear property boundaries was the usual setback for outbuildings and that landscaping between the fence and building could address the concern in relation to the bulk of the building provided appropriate planting was chosen. In relation to the materials for the walls, the council's DCP requires that these be compatible with the locality. Mr Mason said that this did not necessarily mean that timber shingles were appropriate and said that bricks with tiled roof would also be compatible. Mr Daintry said that the use of the above-mentioned coloured metal cladding would be satisfactory and would mean that the building, as a cabana, if completed would meet all of the standards in cl2.18 of SEPP2008 for exempt development as the building has a floor area of less than 20sqm, is not higher than 3m above ground level, is more than 900mm for all boundaries, is not a shipping container, disposes stormwater in an appropriate manner so as not to cause nuisance to adjoining owners and is the only type of structure described in the clause erected on the site. He says that it is smaller than an outbuilding that would be permitted under the council's DCP controls which allow a maximum height of 3.6m and that the reduction in wall height is not required.
The DCP amendment
As advised above, the council amended its controls for outbuildings by increasing the allowable wall height from 2.1 to 2.4m. The 3.6m maximum height remains. The parties provided written submissions in relation to this change.
Mr Woodward for the council submits that the council maintains its position that it is concerned as to the bulk and scale of the building relative to the location on the boundary of No. 87, that the building is imposing and detrimentally impacts upon the enjoyment of the primary living area of that property. He says the amended DCP provides for a maximum height restriction and regard should be had to the height of such a structure in the context in which it is located and relies on the view of Mr Daintry that the development does not enhance the area by the context in which it sits. He further submits that the Court should prefer the evidence of Mr Mason and the neighbours and conclude that the current height of the building when viewed from No 87 is not acceptable and if the building was to remain in-situ, it should be lowered to 2.1m to minimise its impact.
Ms Taylor, for the applicant, argues that because the DCP, in its form at the time the application was lodged and in its amended form, does not define how wall height is measured, the fitting of eaves would reduce the effective height by approximately 150mm and that the external wall heights on that basis would be fully compliant with the amended DCP or perhaps within 110mm at one corner but less at the others and whilst she describes the variation as 'splitting hairs', submits, at its worst is significantly compliant with the DCP provisions as amended and satisfies the objectives of that plan.
Ms Taylor submits that the council's position, as expressed both in the Joint Report and at the hearing of the matter was incorrect given the amendment to the DCP which came into force prior to the date of the hearing and the applicant therefore maintains its position that ordering the lowering of the wall to comply with the DCP would effectively require demolition of the building and such order would be disproportionate, unfair and unreasonable in the circumstances of this case.
Conclusion and findings
In relation to the appeal against the Order, the Court has a number of options and these are prescribed in s121ZK(4) of the Environmental Planning and Assessment Act 1979 (the Act). These are that 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.
S149F(3) of the Act prescribes the manner in which an appeal in relation to the refusal of a council to issue a building certificate can be determined. These are that the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.
S149A of the Act details the council's obligations to issue a building certificate as follows:
(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 to or 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.
(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.
(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a).
(5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.
The council, in accordance with s149A(5), provided Mrs Joseph of advice of the work that would need to be done before it would issue a building certificate. That work is described in [4] above. She objects to lowering the wall height and removing the northern and eastern walls but has agreed to delete the western window, cap the sewer connections and change the wall cladding to the pre-coloured metal cladding. Evidence of Sydney Water's approval of the plans has been provided to the Court and includes a condition that the cabana must be non-habitable (i.e. cannot contain fixtures such as a toilet, bath, basin etc) and must be constructed totally from lightweight materials.
Having considered the evidence provided, I am satisfied that the building, with modifications that delete the western window, require the construction of a 1.8m high fixed louvre or equivalent privacy screen along the western edge of the patio threshold to the building, the capping and disconnection of all plumbing from the sewer so as to accord to the requirements of Sydney Water, the use of pre-finished metal wall and roof cladding in a dark, neutral and recessive colour that complements the surrounding bushland environment and the provision of screen planting between the structure and the western boundary that will grow to a mature height of 3m, should be allowed. I do not consider that it would be necessary to remove the pipework that has been installed within the slab, it would be sufficient that those pipes are capped and sealed and not connected to the main sewer line that runs through the site. It is a matter for the applicant if it wishes to leave the remaining pipework in tact.
I find that the building as modified would be exempt development as a cabana and do not consider there is any need to remove any of the walls or that such structure has to have an earth floor to comply with that categorisation of building, nor do I consider that it is necessary to reduce the wall height as to do so would be more likely to cause noise problems and would reduce the amenity of the building. This is particularly relevant given the circumstances of the case and the recent change to the council's DCP. I agree with the experts that the landscape works required address the contention in relation to the bulk and character of the building.
The capping and disconnection of the plumbing from the sewer will address the council's and neighbours' concerns that the structure is capable of being used as a dwelling, will ensure compliance with the requirements of Sydney Water and will remove the need to impose a positive covenant on the title of the land. I do not consider that it is necessary to remove the electrical wiring from the structure, as the provision of power to such a building is not uncharacteristic of an out-building and the capping and disconnection of the sewer pipes will ensure it is not used as a dwelling.
Having determined that the building can be retained subject to the works outlined above, it is appropriate that the Order be modified and that those works be required to be carried out to the building in the terms of a modified order. On completion of those works, the Court directs the council to issue a building certificate.
Orders
In appeal 10737 of 2011 the Orders of the Court are:
(1) The appeal is upheld in part.
(2) The Order issued by Lane Cove Council on 26 July 2011 to Mrs C.J Joseph, in relation to property Lot 41 DP 222282, No. 67 Riverview Street, Riverview is modified as follows:
(a) The requirement to demolish and remove the unauthorised building structure located at the rear of No. 67 Riverview Street, Riverview as described in the schedule to the Order is revoked and new requirements adopted which require modification of the structure.
(b) The schedule of works required to be carried out to the structure as partially constructed in the rear of No. 67 Riverview Street, Riverview is as follows:
(i) The window in the western wall of the structure is to be removed and the opening closed.
(ii) All plumbing connections to the structure are to be capped and disconnected from the sewer lines that service the site.
(iii) The building's walls and roof are to be clad in factory pre-coloured metal cladding in a dark, neutral and recessive colour that complements the surrounding bushland environment of a colour agreed by Lane Cove Council.
(iv) A 1.8m high fixed louvre or equivalent privacy screen finished in a similar colour to the cladding required in (iii) is to be constructed along the western edge of the patio threshold to the building to prevent any over-looking of the rear private open space of No. 87 Riverview Street, Riverview.
(v) Provision of screen planting between the western wall of the building and the rear property boundary that achieves a maximum height of 3m in accordance with species agreed to by Lane Cove Council.
(3) The exhibits, other than exhibits 2, 4 and C are returned.
In appeal 11012 of 2011 the Orders of the Court are:
(1) The appeal is upheld
(2) The Court directs Lane Cove Council to issue a building certificate in respect of a building in the western corner of the property Lot 41 DP 222282, No. 67 Riverview Street, Riverview on the completion of the works required to be undertaken to comply with the Orders of the Court made in relation to Matter No. 10737 of 2011.
(3) The exhibits, other than exhibits 1 and B, are returned.
Sue Morris
Commissioner of the Court
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Amendments
22 February 2012 - typographical error "Daintree" changed to "Daintry"
Amended paragraphs: 20, 21, 25, 27
Decision last updated: 22 February 2012
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