Lasovski, M and Anors v Hurstville City Council
[2006] NSWLEC 816
•18/12/2006
Land and Environment Court
of New South Wales
CITATION: Lasovski, M and Anors v Hurstville City Council [2006] NSWLEC 816 PARTIES: APPLICANT:
Mendo, Tome and Dobrica Lasovski
RESPONDENT:
Hurstville City CouncilFILE NUMBER(S): 10625, 10700 and 10843 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application - Local Government approval :- Outbuilding: Should the unauthorised works be allowed to stand in whole or in part? LEGISLATION CITED: Hurstville Local Environmental Plan 1994, (HLEP1994)Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, (REP2)
Code for the Erection of Outbuildings, (Code)
Development Control Plan No 14 - Exempt and Complying Development, (DCP14)
Environmental Planning and Assessment Act 1979, ss 79C, 96(6), 149 and 121DATES OF HEARING: 18/12/2006 EX TEMPORE JUDGMENT DATE: 12/18/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr S Kondilios, solicitor
SOLICITORS:
MaddocksRESPONDENT:
Mr P R Rigg, solicitor
SOLICITORS:
Deacons
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
18 December 2006
10625, 10700 and 10843 of 2006 - Mendo, Tome and Dobrica Lasovski v Hurstville City Council
JUDGMENT
1 Appeal No 10625 of 2006 is under s 121ZK of the Environmental Planning and Assessment Act 1979, against the decision of Hurstville City Council (the council) to refuse to maintain an Order 15 under s 121B of the Act in respect of unauthorised or non-complying building works at the rear of a dwelling house at Lot 15, DP 543881, being No 38 Scott Street, Mortdale.
2 Appeal No 10700 of 2006 is under 149F of the Environmental Planning and Assessment Act 1979, against the decision of the same council to not issue a building certificate in respect of unauthorised or non-compliant building works including a barbeque and storeroom on the land at Mortdale.
3 Appeal No 10843 of 2006 is under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the same council of an application to modify development consent for a dwelling house on the land at Mortdale.
4 I visited the land in company with the parties on the morning of the first day of the hearing and I heard from nearby residents.
5 I have concluded that the non-complying building works must be reduced in height at the rear eastern boundary in order to reduce adverse environmental amenity impacts on neighbours. Approval may then be given for new works to bring the development into reasonable compliance.
The land
6 The land is situated on the eastern side of Scott Street, and a frontage of 17.675m to Scott Street, a depth of 43.04m and an area of 760.5m2. The land has a gradual fall to the rear of about 2m, and some filling has been placed at the rear.
7 Erected on the land is a new two-storey dwelling house (occupied) and at the rear is a partly built outbuilding. All trees have been removed during development.
8 Erected on the land to the north is a single-storey fibro cottage and swimming pool, and on land to the south is an old weatherboard dwelling with extensive additions. The dwellings at the rear are erected on sloping sites with shallow rear yards containing swimming pools.
9 The locality is characterised as low-density, single-lot dwelling houses with a mix of single-storey and two-storey buildings.
Relevant planning controls
Hurstville Local Environmental Plan 1994, (HLEP1994)
10 Under the provisions of the HLEP1994, the land is shown as Zone 2 (Residential Zone), and the proposal as a dwelling house and appurtenant buildings is permissible with consent.
11 Relevant clauses of the HLEP1994 include:
· Clause 8(1) - Zone objectives.
· Clause 8(2) - Development Control table.
· Clause 9 - Council's policies.
· Clause 9A - Exempt or complying development.
12 The site is within the area affected by the REP2 and the proposed disposal of stormwater, would be consistent with the council's requirements for the disposal of stormwater in the catchment.
Code for the Erection of Outbuildings, (Code)
13 The council adopted the Code on 27 January 1993 and the relevant clauses include:
· Clause 6.1
· Clause 6.3 – floor space ratio
· Clause 6.5 - setbacks
· Clause 6.6
14 The council's Code specifies that the floor space of a dwelling and its outbuildings should not exceed a floor space ratio (FSR) of 0.5:1 (Clause 6.3).
15 The walls of an outbuilding may stand closer than 900mm to the allotment boundary if they have a fire resistance level (FRL) of 60/60/60 (Clause 6.5.4 of the Code). The subject outbuilding stands about 700mm from the allotment boundaries and do comply with the FRL.
Development Control Plan No 14 - Exempt and Complying Development, (DCP14)
16 Schedule 1 of DCP14 specifies Exempt Development (Exemption requirements for Retaining Walls).
The proposal and history
17 The external and internal walls of an outbuilding in the rear yard of a new dwelling house have been constructed to roof level. The structure remains unfinished as the council, on 2 June 2005, gave notice of intention to serve an order requiring its demolition and subsequently issued directions to cease work, culminating in a formal Order 15 being served on the owners on 27 June 2006 requiring the structure to be modified to conform with plans stamped by the council.
18 The structure measures 8.6m x 4.6m and is constructed with the long rear eastern wall 700mm from the eastern rear boundary of the allotment. The rear wall is about 3.5m above the bottom of the eastern rear fence, which divides the subject land from the Reid property at No 21 Breakwell Street, Mortdale at the rear.
19 Internally, the structure is divided into three separate spaces - a large room measuring about 6m x 4.3m with a 3.5m wide opening to west wall and two small spaces denoted on plans submitted after construction as storerooms. These rooms measure about 1.8m x 2.1m. Sanitary drainage has been installed in the ground beneath the future floor of the structure.
20 Retaining walls have been erected along the eastern rear boundary and returning along the north and south side boundaries. These walls have been erected within 100mm of the boundary dividing fences and to a height of about 400mm along the rear boundary. Soil filling of the rear yard has occurred up to the retaining walls.
Notification
21 On 20 March 2001, the original development application for the dwelling was notified to all neighbouring residents in Scott Street. Neighbours in Breakwell Street were not notified at that time.
22 On 12 July 2005, following complaint about the works and the submission of plans to the council, all the adjoining neighbours were notified. This resulted in three letters of objection from neighbours to the rear at Nos 19, 21 and 23 Breakwell Street.
23 On receipt of the Section 96(2) application, the neighbours were again notified of the proposal on 7 August 2005 and three letters of objection were received from the owners of properties at Nos 19, 21 and 23 Breakwell Street.
24 The council officers, the applicant and the immediate rear neighbour have attempted to negotiate a compromise and to reduce the impact of the structure and to minimise overlooking of the premises at No 21 Breakwell Street. The councillors and the rear neighbours have maintained their opposition to the structure and the filling of the rear yard.
The council’s actions
25 On 2 June 2005 the council after receiving a complaint gave notice of its intention to serve an order requiring demolition of the unauthorised outbuilding.
26 On 7 September 2005 the council resolved to serve formal demolition orders requiring the unauthorised outbuilding, retaining walls and fill in the rear yard to be demolished or removed. The order to demolish the unauthorised outbuilding was dated 22 September 2005.
27 A notice of intention to serve demolition order concerning the retaining walls dated 30 September 2005 followed this notification.
28 On 24 May 2006, the council again resolved to serve a demolition order on non-compliant building works and require removal of filling to yard.
29 On 31 May 2006, the council served a notice of intention to serve an Order No 15 under s 121B of the Environmental Planning and Assessment Act 1979 on the owners of the subject land.
30 On 27 June 2006, the council served on the owners of the subject land, Order No 15 requiring the modification of outbuilding structure, together with removal of fill. This order is the subject of this appeal.
31 Order No 15 under s 121B of the Environmental Planning and Assessment Act 1979 was issued for the following reasons:
1. Development Consent No 20010154 is not being complied with.
2. The outbuilding has adverse effect upon the adjoining properties.
3. The additional fill facilitates overviewing of adjoining properties and may cause excessive stormwater run-off.
32 On 23 August 2006, the council considered a report on a s 96(2) modification application for the outbuilding structure as erected to stand and the council refused consent for reason that:
1. The building, due to its bulk, height and proximity to rear neighbours, has an unreasonable adverse impact on the adjoining residential neighbourhood (Section 79C(1)(b) and (c) of the
Environmental Planning and Assessment Act 1979.
2. The building is substantially constructed and is therefore not a "proposed development" within the meaning of the
Environmental Planning and Assessment Act 1979.
3. The plans do not accurately describe the building by dimension and do not show the intended function of installed sewer drains within the structure.
The hearing
33 The appeal was filed on 19 July 2006.
34 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr G Young, MPIA, Manager - Development Control, Hurstville City Council;
· Mr K F Reid, resident of No 21 Breakwell Street, Mortdale, [Note: Exhibit 1, Tab 18];
· Ms E Bozisevic, resident of No 23 Breakwell Street, Mortdale, [Note: Exhibit 1, Tab 17]; and
· Ms P Calvert, resident of No 19 Breakwell Street, Mortdale, [Note: Exhibit 1, Tab 19].
35 On behalf of the applicant Mr D Crane, consultant town planner, gave evidence.
36 Mr G Young, also prepared the statement of basic facts dated 24 August 2006.
The issues
37 On 1 September 2006 the council filed a statement of issues in Appeal No 10625 of 2006, [Note: Exhibit 5].
1. The proposed structure does not comply with Hurstville City Council’s Code for the Erection of Outbuildings (the ‘Code’) in terms of side and rear setback controls.
2. The proposed structure does not comply with the Code in terms of its height as measured from natural ground level.
3. The proposed design will result in the presentation of a large western elevation to the neighbours at the rear, exacerbating the perceptions of height of the structure and the sense of enclosure for the yard.
4. The placement of unauthorised fill has resulted in an even higher structure when viewed from the rear neighbours' yard. The amount of fill on the site is excessive and results in the proposed building being much higher.
5. The proposed structure results in the loss of sunlight and creates overshadowing to the properties 21 and 23 Breakwell Street.
6. The addition of the fill has resulted in a greater potential for overlooking into the yards of 19, 21 and 23 Breakwell Street.
7. The proposed development currently includes sewer services which would not normally be required in a barbecue area and garden store and which do not appear on the plans submitted with the building certificate application.
38 The salient issue is whether the unauthorised works should be allowed to stand in whole or in part.
39 The issues in Appeal Nos 10700 and 10843 of 2006 are similar and are found in Exhibits 7 and 9 respectively.
The evidence and findings
The unauthorised works
40 Mr Kondilios, for the applicant, submitted that the applicant has sought to have revoked, Order 15 under s 121B of the Environmental Planning and Assessment Act 1979, in respect of unauthorised or non-complying building works at the rear of a dwelling house at Lot 15, DP 543881, being No 38 Scott Street, Mortdale. He submitted that under s 96(6) of the Act the applicant has sought a modification of consent and under ss 149D and E of the Environmental Planning and Assessment Act 1979 to allow the whole or part of the existing non-compliant structure to continue to stand.
41 He submitted in respect of Issue 1, there would be compliance in respect of the Code’s requirement for rear and side setbacks. He referred to the joint town planning report to support this contention.
42 In respect of Issue 2, he submitted that the height of the barbeque area would not comply and this was the experts’ evidence. When the application came to Court it was supported by a recommendation that the roof be lowered at the boundary with the neighbours and as Mr Crane suggested the roof slope from 2100mm interior height near the common boundary with No 21 Breakwell Street. He submitted that in this respect Mr Young advocates the removal of around eight courses and this would have left around seven (7) or eight (8) courses of brickwork being viewed above the existing fence line from the neighbouring property.
43 Mr Kondilios submitted that the applicant accepts that the roof could be lowered further to the chalk line that was drawn on site that would require the removal of thirteen (13) courses of brick on the side nearest the neighbours property. This, he submitted would leave only one course of brickwork facing the Reids. Whilst Mr Young says the building is long with 2100mm high wall or with 2300mm, the closer one stands to the rear door of the Reid dwelling the less likely the view of the rear wall dominates. He submitted that this would be because the roof then shoots off away from the Reids. However, Mr Kondilios agreed that the impacts of bulk would be significantly reduced if the thirteen (13) courses of brickwork were removed.
44 In respect of the calculation of landscaped area, Mr Kondilios submitted that there would be compliance with the code with the barbecue area as proposed and as a result there would be no need to excise the bathroom and store. He submitted that there would be “…ample area for trees to be replaced and the applicant is most accepting of that and would plant replacement trees”.
45 The lowering of the structure to the chalk line would more than cater for the visual impact issue he submitted however the applicant is content to add a 400mm lattice panel to the top of the existing fence and to lower the fill so as to provide an effective 1.8m high fence. He submitted that there would be no impact on views as a result of adding the lattice.
46 He submitted that the Court is required to assess on the merits of the application and not engage in punitive actions. The applicant is content to drop the level of the roof 13 courses, to remove the window and move the dividing between the store and bathroom. That would not be an unreasonable outcome he added.
47 Landscaping could be added that would more than adequately meet the perceived privacy concerns of the Reids at No 21 Breakwell Street, Mr Kondilios submitted. He asked for a variation to Order 15 under s 121B of the Act and that the s 96(6) appeal upheld on the basis of amended plans.
48 Mr Rigg, for the council, submitted that the construction certificate plans that were stamped in error showed the footprint to be 5m by 3.5m and the structure as measured on site this morning has a length 3.5m longer than the plans stamped in error. In addition he submitted the building is 1.6m deeper.
49 Mr Rigg submitted that the expectations of the neighbours to the east, Mr and Mrs Reid at No 21 Breakwell Street, are reasonable and are seeking to maintain the amenity of the residential area as required by the objectives for the zone in HLEP1994. They are seeking to reduce the impact of the unauthorised works on their residential amenity. The Code in cl 2(e) requires outbuildings do not disrupt the visual amenity of the area, he submitted. These objectives are to be addressed under cl 9 of the HLEP1994 and are relevant. Also the objectives seek to maintain existing trees and that the building not be of excessive height.
50 Mr Rigg submitted the building as constructed is not in character with other improvements on adjoining and adjacent properties. He submitted it offends the neighbours and there is an objection to the unauthorised building being retained on that site.
51 He submitted that if the building had been constructed to garage motor vehicles one could understand the need of a building of this size, however, the use of the building for a barbeque could not be said to be needed to meet the applicant’s desire. The council says that the existing building is of a size that is unreasonable given the intended use and the amenity impact on the Breakwell Street properties is unacceptable.
52 The council says that the building should be allowed to remain but altered so that the store and bathroom/WC are deleted from the existing structure and the east elevation be reduced by thirteen (13) courses of brickwork, and that the roof slope up to the west and fall down to the eastern boundary and a 400mm lattice screen be placed in the vicinity of the fence.
53 The council would also seek a condition be attached to any consent that the access to the barbeque be retained open and not be enclosed, he submitted. Also the council would insist on a replacement tree being planted on the southern side of the existing unauthorised structure at around 8m from the rear eastern boundary as shown in the plan in Exhibit A drawing No 1/7 Eucalpytus nichholii 50 litres.
54 Mr Rigg submitted that the council’s position is not to seek punishment but to give back some of the amenity that was lost in the construction of the building. He submitted that to achieve that balance the store and WC should be deleted and with additional planting and back to the policies of the council and the consent. The lattice needs to be constructed on an independent frame inside the retaining wall.
55 Mr Kondilios, submitted in reply that if as was submitted by Mr Rigg that an outbuilding as a garage is acceptable then the barbeque by analogy would also be acceptable. He submitted that the appearance would be the same as a garage or barbeque area.
56 I am satisfied that it is appropriate to allow the building as-built and as amended in the plans in Exhibit C, to stand, except for the removal of thirteen (13) courses of brickwork on the eastern elevation and the removal of other brickwork to the north and south elevations so as to retain a floor to ceiling height of 1.6m along the eastern wall and a floor to ceiling height of 2.4m along the western wall with a skillion roof of no more that 250mm thickness with the finished floor level at 40.6m AHD. I would also require the filling to the south of the unauthorised structure to be lowered by around 200mm to around 40.4m AHD.
57 To address the amenity impact of the existing unauthorised structure, there should be no eaves on the eastern side of the building; the storeroom should be made smaller by moving the dividing wall between the store and the bathroom/WC around 1200mm to the west. The bathroom/WC and store are to be transposed and the existing window to the unauthorised bathroom/WC is to be bricked up.
58 The opening to the barbeque area is not to be enclosed by a door.
59 A section of lattice 400mm high supported on a separate structure founded on the retaining wall is to be erected along the eastern boundary to form a privacy screen. The height of the privacy screen is to be measured off the top of the existing fence. A 50-litre Eucalyptus nicholii is to be planted in the location of the tree shown in the plan 1/7 in Exhibit A to the south west of the barbeque area.
60 With those amendments, the appeal is upheld in part.
61 For the above reasons, the appeals are upheld in part.
Conditions
The conditions are those in Exhibit
Orders
62 In Appeal No 10625 of 2006 my orders are:
1. The appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 is upheld in part.
2. Order 15 under s 121B of the Act in respect of unauthorised or non-complying building works at the rear of a dwelling house at Lot 15, DP 543881, being No 38 Scott Street, Mortdale, as issued by the council, is modified to allow the building as-built and as shown in the plans in Exhibit C, to stand, except for the removal of thirteen courses of brickwork on the eastern elevation and the removal of other brickwork to the north and south elevations so as to retain a floor to ceiling height of 1.6m along the eastern wall and a floor to ceiling height of 2.4m along the western wall with a skillion roof of no more that 250mm thickness. The finished floor level shall be 40.6m AHD and the fill at the retaining wall lowered by 200mm to around 40.40m AHD. There should be no eaves on the eastern side of the building.
3. The exhibits except for Exhibits A, C, D, F, 5, 6, 7, 8, 9 and 10 are returned.
63 In Appeal No 10700 of 2006 my orders are:
1. The appeal under s 149F of the Environmental Planning and Assessment Act 1979 is upheld in part.
2. Under s 149D of the Environmental Planning and Assessment Act 1979 the council, in respect of unauthorised or non-compliant building works including a barbeque and storeroom at Lot 15, DP 543881, being No 38 Scott Street, Mortdale, is directed to issue a building certificate once the works reflected in the decisions of the Court in Appeals No 10625 of 2006 and 10843 of 2006 are completed.
3. The exhibits except for Exhibits A, C, D, F, 5, 6, 7, 8, 9 and 10 are returned.
64 In Appeal No 10843 of 2006 my orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld in part.
2. The modification application for a dwelling house at Lot 15, DP 543881, being No 38 Scott Street, Mortdale, is approved subject to Conditions 1 to 26 in Annexure A.
3. The exhibits except for Exhibits A, C, D, F, 5, 6, 7, 8, 9 and 10 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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