Lennon v Mosman Council - [2005] NSWLEC 114

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Lennon v Mosman Council [2005] NSWLEC 114

PARTIES:
Applicant:
Mal Lennon
Respondent:
Mosman Municipal Council

FILE NUMBER(S):
11370 of 2004

CORAM:
Roseth SC

KEY ISSUES:
Development Application :-

DATES OF HEARING: 11/03/2005

EX TEMPORE JUDGMENT DATE:
03/11/2005

LEGAL REPRESENTATIVES:
Applicant:
Ms M Taylor, solicitor
Respondent:
Ms J Walsh, solicitor

JUDGMENT:

- 8 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 March 2005

11370 of 2004 Mal Lennon v Mosman Municipal Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal of a development application to extend the existing garage by 1m and renew its roof on lot 2 DP 616776, known as 21 Boyle Street, Mosman.

2 The Court heard the objections of two residents: Mr G Crawford of 11 Boyle Street and Mr R Foster of 21A Boyle Street. Mr Crawford’s objection related to streetscape. He thought that a 1m extension would appear visually disruptive in Boyle Street.

3 Mr Foster’s property adjoins the subject site. He endorsed Mr Crawford’s objections relating to streetscape. He was also concerned about the additional bulk of the garage that he would see from his property. His main objection, however, was that the garage was not capable of accommodating two cars and the extension would make the apron shorter, so that a car would no longer be able to park in front without overhanging the footpath.

4 It was common ground that the garage could accommodate two cars, provided the rear car reversed into the garage. The court sought the assistance of the council’s engineer, Mr C Covitch, for advice whether the garage could accommodate a small and a large car, if the both parked in a forward direction. His advice was that it was possible but not very convenient.

5 The Court-appointed expert was Mr G Goodyer, a town planner. His view was that the extension of the garage would have an adverse though not a major adverse impact on the streetscape. He considered that this impact was justified, as long as the garage provided accommodation for two cars. He also accepted that the two alternatives of reversing or a household owning one large and one small car amounted in practice to an acceptance of the garage as a two-car garage, not an ideal but a two-car garage nonetheless. Consequently he thought that the minor impact on the streetscape was acceptable.

6 In Mr Goodyer’s opinion, the impact on Mr Foster was not of such magnitude as to justify the refusal of the application. I have inspected No 21A and I have come to the same conclusion.

7 I note that the council’s planning staff recommended approval. For the above reasons the appeal is upheld. The only disagreement about conditions was about Condition 7 requiring the applicant to keep the garage doors closed. In my opinion, such a condition intrudes into personal behaviour too much, so I have not imposed it.

Orders

1. The appeal is upheld.

2. Development application to extend the garage of No 21 Boyle Street, Mosman is determined by the granting of consent, subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits A and 3.

__________________
Dr John Roseth
Senior Commisssioner

Annexure A

Mal Lennon v Mosman Municipal Council

The consent authority grants development consent under section 80 (1) of the Environmental Planning and Assessment Act 1979 to development application number 8.2003.100.1 for alterations and additions to an existing garage and relocation of stairs at the rear of the existing garage at 21 Boyle Street Mosman subject to the following conditions:-

The development must be carried out in accordance with the following plans, except where amended by later conditions of consent:

Plan Nos.	Date of plan	Prepared by
da 1c and da 2c	Amended 19 January 2005	Ladd - Hudson Architects

There shall be no engaged piers between 2 and 3.5m from the back of the garage on the eastern wall and between 3.7 and 5.2m from the back of the garage on the western wall.

The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicant’s should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.

Two copies of architectural and Structural Engineer’s plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Developing then Building & Renovating, or telephone 13 20 92.

Building and Construction Industry Long Service Payments Act 1986

The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.

Environmental Planning and Assessment Act 1979

(i) the Construction Certificate has been issued;

(ii) the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent);

(iii) in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent.

(iv) the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C):

· appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and

· notified the PCA of any such appointment; and

· unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and

(v) the person benefiting from the consent has given Council at least 2 days’ notice of the person’s intention to commence the erection of the building by way of completing Form 7D.

Home Building Act 1989

a) in the case of work to be done by the holder of a contractor licence under that Act:

i. the name and licence number of the contractor; and

ii. the name of the insurer by whom the work is insured under Part 6 of that Act,

b) in the case of work to be done by the holder of an owner-builder permit under that Act, the name and permit number of the owner-builder.

If site or building works will:

· cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or

· involve the enclosure of a public place; or

· have the potential to damage adjoining private land by way of falling objects

The following conditions must be satisfied during site and construction works.

All demolition work must be carried out in accordance with the provisions of Australian Standard 2601-2001: The Demolition of Structures .

Occupational Health and Safety Regulation 2001

Protection of the Environment Operations (Waste) Regulation 1996

a) the name, address and telephone number of the principle certifying authority for the work; and

b) showing the name of the person in charge of the work and a telephone number at which that person may be contacted during and outside work hours; and

c) stating that unauthorised entry to the work site is prohibited.

Any such sign shall be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.

In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Inaudible site works may also take place between 7.00 am and 8.00 am on Saturdays. No site works shall be undertaken on Sundays or public holidays.

Council Property

All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans.

i) no further excavation, in excess of what has already occurred, is to occur within the root zone of the palm, which will be approximately 500 mm either side of the trunk;

Local Government Act 1993

Local Government Act 1993

· Place a waste storage container in a public place

· Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway

Local Government Act 1993

To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out:

· At the commencement of the building work;

· After the excavation for, and prior to the placement of, any footings;

· Prior to pouring any in-situ reinforced concrete building element;

· Prior to covering of the framework for any floor, wall, roof or other building element;

· Prior to covering waterproofing in any wet areas;

· Prior to covering any stormwater drainage connections;

· Fire separation if the building is within 900mm of the property boundary prior to any occupation certificate being issued in relation to the building; and

· Final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carries out by the PCA.

Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent.

If you intend engaging Council to undertake inspections, please telephone the area Building Surveyor or Council’s Case Officer on 9978 4044 to arrange a suitable time.

Record of Inspections Carried Out

Environmental Planning and Assessment Regulation 2000

The record must include details of:

· The development application and construction certificate number;

· The address of the property at which the inspection was carried out;

· The type of inspection;

· The date on which it was carried out;

· The name and accreditation number of the certifying authority by whom the inspection was carried out; and

· Whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

a) The following condition must be satisfied prior to occupation of the development.

Compliance Certificates & Inspection Records

Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.
Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

(b) The applicant shall plant a shrub of a species selected by Council’s Landscape Architect in the park adjacent to the 1 metre southern extension of the garage.

7. DELETE

8. ADVICE/NOTES

a) The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination.

i) Headings such as “Prior To The Release Of The Construction Certificate” together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note.

ii) Section 82A of the Act provides for an applicant to request Council to review its determination excepting applications made on behalf of the Crown or applications in respect of designated development, integrated development or a complying development certificate. The request for review must be made within 12 months of the date of determination or prior to appeal being heard by the Land and Environment Court. A decision on a review may not be further reviewed under section 82A.

iii) If you are unsatisfied with this determination, Section 97 of the Act gives you the right of appeal to the Land and Environment Court within 12 months of the determination date.

iv) A public inquiry by a Commission of Inquiry was not held under Section 119 of the Act.

v) Other public authorities may have separate requirements and should be consulted in the following respects:

· Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments;

· AGL Sydney Limited for any change or alteration to gas line infrastructure;

· Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements;

· Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure.

vi) Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court.

vii) In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.

viii) All references to “the Act” under this consent relate to the Environmental Planning and Assessment Act 1979.

_________________
Dr John Roseth
Senior Commissioner

Actions

Download as PDF Download as Word Document

Citations

Lennon v Mosman Council [2005] NSWLEC 114

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

CITATION:	Lennon v Mosman Council [2005] NSWLEC 114
PARTIES:	Applicant: Mal Lennon Respondent: Mosman Municipal Council
FILE NUMBER(S):	11370 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	11/03/2005
EX TEMPORE JUDGMENT DATE:	03/11/2005
LEGAL REPRESENTATIVES:	Applicant: Ms M Taylor, solicitor Respondent: Ms J Walsh, solicitor