Kingfisher Properties Pty Ltd v Northern Beaches Council

[2022] NSWLEC 1088

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kingfisher Properties Pty Ltd v Northern Beaches Council [2022] NSWLEC 1088

Hearing dates:

Conciliation conference on 11 February 2021

Date of orders:

21 February 2022

Decision date:

21 February 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) An Order pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Order issued by the Respondent to the Applicant dated 25 January 2021 is substituted with the Order set out in Annexure A which is made pursuant to Division 9.3, Schedule 5 (Order Number 3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT CONTROL ORDER – development without consent – exempt and complying codes – demolition – reconstruction – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.1, 4.2, 8.18, 9.34, Schedule 5

Land and Environment Court Act 1979 ss 17(d), 34, 39

Pittwater Local Environmental Plan 2014

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 1, Part 2, Div 1

Cases Cited:

Tenacity Consulting Pty Ltd vs Warringah Council [2004] NSWLEC 140

Category:

Principal judgment

Parties:

King Fisher Properties Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
R S Dunn (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Dunn Legal (Applicant)
Storey & Gough (Respondent)

File Number(s):

2021/50385

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant commenced proceedings pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) appealing the Development Control Order dated 25 January 2021 (DCO) made pursuant to s 9.34(1)(a) of the EPA Act by Northern Beaches Council (Council):

1. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act);

2. the statutory power or function to be exercised in determining the proceedings are s 8.18(4) of the EPA Act and ss 34(3) and 39(2) of the LEC Act;

3. The DCO was made pursuant to the terms of Order No. 11 – Compliance Order as specified in the table in Part 1 of Schedule 5 of the EPA Act. The DCO required the Applicant to do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards:

1. Conduct works to the unauthorised carport located adjacent to the south-west boundary of the property known as 163 Pacific Road, Palm Beach …so that it is brought into compliance with Subdivision 10 – Carports of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying SEPP 2008);

2. Plus additional requirements including the times and days the works are to be carried out, and that the works are carried out in accordance with relevant codes, practices and permits including the Building Code of Australia;

3. The relevant works were to be carried out within seventy-seven (77) days from the date of this DCO.

2. The DCO relates to part of the land contained in:

1. Lot 2A in Deposited Plan 8595;

2. Lot 1 in Deposited Plan 953004;

3. Lot 2 in Deposited Plan 953004; and

4. Lot 2 in Deposited Plan 953003.

Which together are known as 163 Pacific Road, Palm Beach (the Land).

3. The alleged unauthorised carport, the subject of the DCO, is located adjacent to the south-western boundary of the Land (the Carport). The dwelling is in an obscure configuration on the site with the carport being located on Lot 2, Deposited Plan 953004 & Lot 2A in Deposited Plan 8595. Lot 2A also contains a detached double garage.

4. The Land is directly adjoined to the north and east by dwelling houses; and to the west and south across Pacific Road by dwelling houses. Below are two aerial photographs showing that part of the Land prior to construction of the Carport, and the Carport as constructed:

View of the relevant part of the Land without the Carport

View of the relevant part of the Land with the Carport

5. The Carport is enclosed with a garage door addressing Pacific Road. Otherwise the Carport is open on its sides and rear, and is adjoined by a formerly approved pedestrian lift.

6. The Carport structure has dimensions of 5.3m by 5.7m with an area of 30.21m². The structure is built abutting the front boundary, and has a height of approximately 4.3m.

7. The Land enjoys views of Palm Beach to the east and north-east, of Barrenjoey lighthouse to the north, and Pittwater Bay to the west and north-west.

8. On 12 August 2020 the Council received a complaint alleging that an unauthorised garage was under construction on the Land.

9. On 25 August 2020 the Council’s Investigation Officer conducted an inspection of the Land with the Applicant’s representative. The inspection identified that a carport had been constructed within 900mm of the southern boundary of the Land (Council’s road reserve for Pacific Road), and had the dimensions as set out in para [6] above.

10. The Applicant believed that development consent had been granted for the Carport as part of an earlier development consent for the Land. Investigations by Council concluded that no consent had been granted for the Carport. The Applicant has not been able to furnish Council with a development consent which includes the construction of the Carport.

11. On or after 8 September 2020 Council’s officers considered whether the Carport could be carried out under the Exempt and Complying SEPP 2008, and determined that it could not as it did not comply with the provisions of the Exempt and Complying Codes 2008.

12. On 27 November 2020 the Council issued the Applicant with a Notice of Intention to Give an Order (reference EPA2020/0330) (the Notice) pursuant to Schedule 5, Part 6, s 8 of the EPA Act.

13. On or about 11 December 2020 Council was contacted by Mr Vaughan Milligan, town planner, acting on behalf of the Applicant, advising the Applicant intended to lodge a Building Information Certificate application with Council.

14. On 25 January 2021 the Respondent issued the DCO (reference EPA2020/0330) pursuant to s 9.34(1) and Schedule 5 of the EPA Act.

15. On 19 February 2021 the Applicant filed its appeal against the DCO pursuant to s 8.18(1) of the EPA Act.

16. The matter was set down for hearing commencing on 10 February 2022. I presided over the hearing on 10 February 2022, and the hearing commenced with a site view and an inspection of potential view loss from the objectors’ residence at 130C Pacific Road, Palm Beach, together with an inspection of the Carport and adjoining road reserve of Pacific Road.

17. On the morning of 11 February 2022, at the request of the parties the hearing was terminated, and the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 11 February 2022. I presided over the conciliation conference.

18. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, and substituting Development Control Order (DCO) in the terms of item 3, of the table in Part 1 of Schedule 1 of the EPA Act, being a Demolish Works Order. The substituted DCO requires the roof of the carport structure to be demolished, as it is this element which the parties’ experts agree results in unacceptable view loss from No. 130C Pacific Road, Palm Beach.

19. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18(4) of the EPA Act and ss 34(3) and 39(2) of the LEC Act to uphold the appeal, and substitute Order 3 to demolish part of the Carport and rebuild it to a lower level as set out in Annexure A.

20. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below, and explained how those jurisdictional prerequisites have been satisfied:

1. The DCO dated 25 January 2021 was issued pursuant to s 9.34(1)(a) and Part 1 of Schedule 5 of the EPA Act, in terms of item 11 – Compliance Order. The Order was served upon the owner of the premises located on the Land and concerned the Carport.

Schedule 5 Development control orders

Part 1 General orders

No.	To do What?	When”	To whom?
11	Compliance Order To comply with a planning approval for the carrying out of works	A planning approval has not been complied with.	•  The owner of the premises

2. The circumstances in which a Compliance Order may be issued are as follows:

Building has been unlawfully erected and does not comply with relevant development standards

3. The parties agree the DCO was valid in that there existed sufficient circumstances to enliven the power to give the DCO in terms of item 11 in the table of Part 1 of Schedule 5 of the EPA Act, in that:

1. The structure had been unlawfully erected: The structure, being a roofed carport, had been erected without a development consent first being obtained. The erection of the structure was not development that does not need consent under s 4.1 of the EPA Act, rather the structure was development that required consent under s 4.2 of the EPA Act.

2. The structure did not comply with relevant development standards: The construction of a carport is specified development under Subdivision 10 Carports of the Exempt and Complying SEPP 2008. The Exempt and Complying SEPP 2008 contains development standards concerning the erection of a carport. The subject structure, due to its size, height and location does not comply with the development standards within cl 2.20 of the Exempt and Complying SEPP 2008.

3. The carport structure adversely impacts on the amenity of an adjoining neighbour it terms of view impacts.

4. The parties agree that the Applicant has been afforded procedural fairness and the rules of natural justice have been observed as required by ss 2, 6, 8 and Part 7 of Schedule 5 of the EPA Act.

The substituted order

21. The parties agree to the Court making an order under s 8.18(4)(c) and (f) of the EPA Act. Pursuant these provisions the Court is empowered to:

(c)   Substitute for the development control order any other order that    the relevant enforcement order could have given; and

(f)   Make such other order with respect to the development control    order as the Court thinks fit.

1. The substituted order is prepared in the terms of item 3 in the table to Part 1 of Schedule 5 of the EPA Act, being a Demolish Works Order. A Demolish Works Order is an order that Northern Beaches Council could have given in these circumstances.

2. The substituted DCO requires the roof of the carport structure to be demolished, as it is this element which the parties’ experts agree results in unacceptable view loss from No. 130C Pacific Road, Palm Beach [1] .

3. A Demolish Works Order may be issued in circumstances where “A building requiring a planning approval is erected without a planning approval.” The Carport is consistent with this description.

4. The substituted order also facilitates the construction of a replacement roof, which will have a maximum height of no greater than RL69.94, being the height agreed by the experts as providing an appropriate sharing of views. [2] In these circumstances the Court would require a roof to be constructed, and the height of that roof to be in accordance with the evidence of the town planners.

5. The parties agree the substituted Order is within the term of item 3 of Part 1 of Schedule 5 of the EPA Act.

6. The substituted Order is therefore one that the Court could give or make, pursuant to s 8.18 of the EPA Act.

   1. Joint Expert Report of Mr J Aspinall and Ms J Edwards dated 18/01/2022, page 5.

   2. Joint Expert Report of Mr J Aspinall and Ms J Edwards dated 18/01/2022, page 5.

22. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act:

1. In determining this matter, the Court re-exercises the functions of the Council pursuant to the following powers:

1. Section 39 of the LEC Act:

2. ……

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

……

3. Section 9.34(1) of the EPA Act:

4. 9.34 Orders that may be given (cf previous 121B)

5. (1) the development control orders that may be given under this Act are as follows –

(a) general orders in accordance with the table to Part 1 of Schedule 5, …..

6. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal – those powers are as follows:

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

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

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

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

(f) make such other order with respect to the development control order as the Court thinks fit.

2. The Applicant is the owner of the Land, and required development consent from the Council pursuant to s 4.2 of the EPA in order to construct the Carport on the Land.

3. The Land is located within the C4 Environmental Living zone pursuant to the provisions of Pittwater Local Environmental Plan 2014 (Pittwater LEP2014).

4. Development for the purposes of ‘Dwelling houses’ is permitted with consent within the C4 Environmental Living zone.

5. Part 1, Div 1, s 1.5 Interpretation – general of the Exempt and Complying SEPP 2008 contains a definition of ‘Carport’ as:

carport means a roofed structure for the shelter of motor vehicles that has 2 or more sides open and not less than one-third of its perimeter is open

The structure is therefore defined as a ‘carport’ under the SEPP and is therefore capable of being approved provided it complies with the requirements of the Exempt and Complying SEPP 2088.

6. A “Carport” is specified in the Exempt and Complying SEPP 2008 pursuant to Part 2, Div 1, Subdivision 10, and is therefore capable of being approved pursuant to the Exempt and Complying SEPP 2008.

7. The Applicant did not obtain development consent from the Council to construct the Carport, and the development was not exempt and complying development pursuant to the Exempt and Complying SEPP 2008 as the Carport:

1. had a floor area of approximately 30.21m², which is greater than the 25m² permitted by cl 2.20(1)(b)(ii);

2. was approximately 4.2-4.3m in height, which is greater than the 3m standard set out in cl 2.20(1)(c); and

3. was located less than 900mm from a lot boundary contrary to cl 2.20(1)(e)(ii).

8. On 27 November 2020 Council issued the Applicant with the Notice pursuant to Schedule 5, Part 6, s 8 of the EPA Act. Council gave the Applicant sufficient time to make representations in relation to the Notice.

9. On 25 January 2021 Council issued the DCO pursuant to s 9.34(1) and Order 11 of Part 1 Schedule 5 of the EPA Act.

10. On 19 February 2021 the Applicant filed its appeal against the DCO pursuant to s 8.18(1) of the EPA Act, and in accordance with the time provisions in s 8.18(3) of the EPA Act.

11. The hearing of the matter commenced on site on 10 February 2021, and present were the legal representatives of the parties, together with experts for the Applicant (Mr J Aspinall, visual impact assessor and architect), Council (Ms Julie Edwards, town planner), and the objectors from 130C Pacific Road (Mr K Nash, town planner).

12. I inspected the potential view loss from 130C Pacific Road in the company of the 3 experts, with Mr Nash identifying the view loss for 130C Pacific Road.

13. On returning to Court, Mr Nash clearly set out the objections to view loss by the owners of 130C Pacific Road. The view loss for 130C Pacific Road was based upon the four planning principles outlined in Tenacity Consulting Pty Ltd vs Warringah Council [2004] NSWLEC 140 as follows:

1. Nature of the view affected?

2. What part of the affected property are the view obtained?

3. Extent of Impact

4. Reasonableness of the proposal that is causing the impact.

14. Before the hearing was terminated, and the conciliation conference pursuant to s 34(1) of the EPA Act commenced, I had the opportunity of hearing from Mr Aspinall and Ms Edwards, and perusing their Joint Expert Report – Town Planning filed 18 January 2021. Mr Aspinall and Ms Edwards agree, inter alia, in their Joint Expert Report 18/01/21 as follows:

“The planning experts agree that it is appropriate to apply the Tenacity view sharing principles to their proceedings and also agree that the northern views from the north facing windows of 130C Pacific Road are high value views.

“The planning experts agree that a substantial portion of the existing views directly to the north of 130C Pacific Road are obstructed by the development at 163 Pacific Road, as detailed in the Order (EPA2020/0330).

“The planning experts agree that the views impacted primarily arise from the apex of the roof of the carport structure.

“The planning experts agree that the lowering of the roof pitch to achieve a height at the apex of RL69.64 will provide substantial relief to the views and maintain the highly valuable views of the interface between land and water obtained from 130C Pacific Road. The planning experts agree that this outcome will satisfy the Tenacity view sharing principles.”

15. I accept the solution agreed to by the experts in para [21(14)] above, and agreed to by the parties, that the view loss to 130C Pacific Road will be resolved by the removal of the roof and reconstructing it to achieve a height at the apex of RL69.64.

16. The Council’s records show, and the parties agree, that the Applicant has been afforded procedural fairness and the rules of natural justice have been observed as required by ss 2, 6, 8 and Part 7 of Schedule 5 of the EPA Act.

17. The substituted development control order as set out in Annexure A is able to be made pursuant to s 8.18(4) (c) and (f) of the EPA Act. The substituted order provides:

1. the roof of the Carport to be demolished and rebuilt to a lower level, being a maximum height of RL69.64 to minimise the view loss to the north by the owners of 130C Pacific Road, and

2. extends the time to comply with the Order from 77 days to 133 days. As we are still in a Covid-19 Pandemic it is reasonable to allow the Applicant more time to complete the works as set out in the substituted Order.

Schedule 5 Development control orders

Part 1 General orders

No.	Column 1 To do what?	Column 2 When?	Column 3 To whom?
3	Demolish Works Order To demolish or remove a building	A building— •  requiring a planning approval is erected without approval, or •  is erected in contravention of this Act	•  Owner of the land

18. As the Exempt and Complying SEPP 2008 does not apply, it is not necessary to consider the exceedance in the area of the Carport. The exceedance is such that it does not impact on the planning outcome for the Land or the area, and Council did not press this point.

19. Council agreed not to press the non-compliance of the Carport being constructed within 900mm of the road reserve. As can be seen by the second photograph on para [4]above, the road reserve is wide in front of 163 Pacific Road, and the edge of the sealed road is a number of metres from the front of the Carport.

23. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. Accordingly, pursuant to s 34(3) and 39 of the LEC Act, and s 8.18(4)(c) and (f) of the EPA Act I shall make a substitute order in accordance with Annexure A which requires the roof of the Carport to be demolished (item 3 of Part 1, Schedule 5 of the EPA Act), and the roof to be rebuilt to a reduced height of RL69.64 in accordance with the plan included in Annexure A.

24. The Court orders:

1. The appeal is upheld.

2. An Order pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Order issued by the Respondent to the Applicant dated 25 January 2021 is substituted with the Order set out in Annexure A which is made pursuant to Division 9.3, Schedule 5 (Order Number 3) of the Environmental Planning and Assessment Act 1979.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (480336, pdf)

**********

Endnotes

Amendments

14 March 2022 - Pursuant to UCPR rule 36.17 the court amends the judgment to substitute Annexure A with a new version that corrects various typographical errors to Attachment C of Annexure A.

Decision last updated: 14 March 2022