Messina v Randwick City Council

[2005] NSWLEC 116

Land and Environment Court

of New South Wales

CITATION:

Messina v Randwick City Council [2005] NSWLEC 116

PARTIES:

APPLICANT
D & F Messina

RESPONDENT
Randwick City Council

FILE NUMBER(S):

11408 and 11052 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Deemed refusal of modification application - s 121B Order for demolition - deletion of Conditions 17 and 18.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

16 /03/2005

EX TEMPORE JUDGMENT DATE:

03/16/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr V Conomos, solicitor
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr A Galasso, barrister
SOLICITORS
Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

16 March 2005

11408 & 11052 of 2004 D & F Messina v Randwick
City Council

JUDGMENT

1 This was two appeals between Messina and Randwick City Council. Appeal 11408 of 2004 was regarding a s 96 application to amend development consent DA01/1136/GA dated 14 February 2002 for alterations and additions to No. 9 Ron Filbee Place, Maroubra.

2 Appeal No. 11052 of 2004 was in regard to a s 121B Order under Environmental Planning and Assessment Act. The Order was dated 18 August 2004 and concerned a requirement to demolish works that have been constructed contrary to conditions 17 and 18 of s 96 approval No. 01/80136/GA/A dated 18 December 2002.

3 Appeal No. 11408 of 2004 sought to delete Conditions 17 and 18. There was also a concern in the issues in regard to the structural sufficiency of the works built contrary to Conditions 17 and 18. The issues were in Exhibit 4 and were summarised by the respondent as being privacy and streetscape and visual bulk related.

4 The on-site hearing was attended for the respondent by:

• Mr A Galasso, barrister
• Mr D Mulcay, team leader regulatory building, Randwick City Council
• Mr M Morrisey, senior building and development control officer, Randwick City Council
• Ms A Wynter, senior town planner, Randwick City Council and
• Ms T Litt of Bowen & Gerathy.

5 The following attended on behalf of the applicant:

• Mr V Conmos, solicitor, Pike Pike and Fenwick
• Mr R Dickson, architect and urban designer and
• Mr N R Salerni, town planner.
• Mr D Messina, applicant

6 No objectors attended although there were in evidence objections to the original consent and the s 96 application dated 18 December 2002. There were only two letters of objection to the current s 96 application and they were from the owners of Nos. 5 and 7 Ron Filbee Place.

7 Number 11 on Ron Filbee Place was another very large house still under construction. It was downhill of the subject property, so there was a visual stepping of structures up the hill.

8 Ron Filbee Place was a very short cul-de-sac of about 7 houses and the Court was told there were current applications for two of the remaining houses to be rebuilt plus one additional in an existing yard. All added another floor to the existing houses.

9 Having heard the evidence, and then shown the existing roof deck as constructed, and the streetscape, I have come to the following conclusions:

10 The respondent accepted an alternate to Condition 17 to install a series of continuous and fixed planter boxes to be a minimum of 1 m wide to ensure that people will not be able to walk or stand adjacent to the existing glass balustrade at the rear of the deck. That would keep people on the roof deck away from the area where views could be had into the back yards of the houses fronting Torrington Avenue. It would actually be more effective than the original approval in preserving privacy, because the frosted glass balustrade would serve as a physical privacy screen that would not have been present otherwise.

11 In regard to the parapets as built I was shown in the street the maximum permitted wall height of 7 m. It would correspond with the height on the subject building about half way up the existing first floor windows. So the alterations and additions as approved by council exceeded the height limit and created a building that was not proportional to what might be expected when say No. 7 Ron Filbee Place was to be renovated and extended upward.

12 That being the case, and even though council had agreed to an excedance of the 7 m, it did not justify having an even higher building that would be even more disproportionate.

13 At one stage of the proceedings, the respondent mooted that the roof of the house should be cut back to be as approved in the original consent.

14 In the first s 96 consent granted by the council, a roof structure 750 mm thick was approved, whereas the original consent had a roof structure 450 mm thick.

15 As a result, it was not reasonable to delete the roof and the parapet walls back to the same height as they were in the original consent.

16 Looking at the drawings and conditions of the first s 96 consent, it was clear the parapet walls as built were still considerably above the height approved in the first s 96 consent. The height from the window head to the soffit of the first floor window hoods further accentuated the height and proportions of the upper floor.

17 The principle offender in terms of the visual impact on the streetscape was the bi-level parapets and window hood above the master bedroom at the street front. And there was another hood above the sliding glass windows to an area at the top of the internal stairs. This also faced the street front with a similar height between the window head and the soffit of the hood.

18 After having heard from Ms Wynter and Mr Dickson, I concluded that the street front parapets and the soffits of the hoods over the master bedroom and stairwell windows should be lowered to improve the fit of the house into the streetscape.

19 The extent of lowering was discussed between the parties and draft conditions were prepared and the parties agreed to consent orders. I propose to adopt those conditions in the Orders of the Court.

20 In hearing submissions on costs, it was put by the applicant that since the subject s 96 application had been fought so strongly by the respondent, it was very likely the parties would have been into an appeal situation even if the application been made prior to construction. That would have been a situation where each party would pay its own costs.

21 The respondent on the other hand said that in fact the actions of the council had only been brought about by the actions of the applicant in failing to comply with the original conditions of consent and the earlier approved s 96 amendment during the construction of the development.

22 The same submissions apply to the appeal on s 121B Order the respondent said.

23 The position of costs in regard to class 1 matters can be summarised as now being awarded by the Court where it is considered to be fair and reasonable.

24 Although the granting of consent orders involves the upholding of the appeal in regard to the s 96 application, these matters arose from the applicant’s failure to either comply with the conditions of consent or to make a s 96 application before construction.

25 In regard to costs I propose to recommend to the Chief Judge that in this case the applicant should pay the respondent’s costs in the s 121B Order proceedings.

26 On the s 96 application I propose that there should be only the direct costs related to attendance at the actual hearing on-site today that should be awarded to the respondent, on the basis that the preparation for the reports for the s 96 application would have been normal procedure for council staff when considering an application for a change to the consents granted by the council. The actual Court action of today may not have been necessary if the negotiations between the parties had been successful beforehand.

27 In regard to this decision on costs the parties have 14 calendar days from the date of publication of this decision to make any submissions to the Chief Judge of the Land and Environment Court of New South Wales. In the event of no submissions this decision is binding.

28 Therefore the orders of the Court by consent of the parties are:

Appeal No. 11408 of 2004

1. That the appeal is upheld subject to Orders 2 and 3 below.

2. (a) That Condition 17 of Consent 01/80136/GA/A of 18 December 2002 be replaced by Exhibit H.

(b) Condition 18 of Consent 01/01136/GA/A dated 18 December 2002, be replaced by Exhibit F.

(c) Additional Condition 19 in the form of Exhibit G be imposed.

(d) The text of Exhibits H, F and G is attached in Annexure A hereto.

3. That Exhibits 4, 5, 6, A, F, G and H be retained by the Court and the others returned to the parties.

Appeal No. 11052 of 2004

29 The orders of the Court by consent of the parties are:

1. That the s 121B Order dated the 18 August 2004, in regard to No. 9 Ron Filbee Place, Maroubra, be substituted with an order as follows:

a) To further minimise overlooking to adjoining properties to the south west, a series of continuous and fixed planter boxes shall be installed across the rear south eastern side of the roof terrace. The planters must be a minimum of 1 m wide and installed to ensure that people will not be able to walk to or stand adjacent to the existing glass balustrade. The planter boxes shall not be used as a platform to stand upon.

b) The parapet to the north eastern elevation is to be lowered to align with the top of the existing masonry parapet to form a continuous line. The lower portion of this zinc bulk head and cedar blind shall be lowered to 400 mm above the sliding door heads on both facades. An elevation plan of the north-eastern and western elevation shall be submitted to council for approval.

c) The attached elevation and plan illustrates the required outcome.

d) The period for compliance contained in the order shall be changed from 30 days to become 90 days from the 16 March 2004.

30 In regard to costs of the proceedings, with the concurrence of the Chief Judge, pursuant to s 69(8) of the Land and Environment Court Act 1979, the orders of the Court are:

1. In appeal No. 11408 of 2004, the reasonable costs of the respondent of attendances at the on-site hearing of 16 March 2005 shall be paid by the applicant to the respondent.

2. In appeal No. 11052 of 2004, the reasonable costs of the respondent in pursuing the s 121B Order prior to the hearing and attendances at the on-site hearing of 16 March 2005 shall be paid by the applicant to the respondent.

____________________
K G Hoffman
Commissioner of the Court
rjs/ljr