Milanja v Warringah C

[2006] NSWLEC 556

Land and Environment Court

of New South Wales

CITATION:

Milanja v Warringah C [2006] NSWLEC 556

PARTIES:

APPLICANT
Vera Milanja

RESPONDENT
Warringah Council

FILE NUMBER(S):

11039 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- s 97, conditions imposed by council to a consent granted in 2005, landscaping works, construction of a stair case on council land, impact on streetscape, neighbour dispute.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Roads Act

DATES OF HEARING:

24/01/2006

EX TEMPORE JUDGMENT DATE:

02/25/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Doyle, barrister

RESPONDENT
Mr N. Howie, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

25 January 2006

11039 of 2005 Vera Milanja v Warringah Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Warringah Council’s imposition of conditions to a consent granted in August 2005. The subject site is known as 31 Queenscliff Road, Queenscliff. The development application, however, is in respect of the road reservation verge outside the premises of Nos. 29 and 31.

2 The development application submitted to the council is for the landscaping to supplement the landscaping in front No. 33 as per the agreement with that neighbour, the landscaping works in front of the front boundary of No. 31 and also the removal of the stairs which are largely in front of property known as No. 31 which provide access to the property known as No. 29 Queenscliff Road.

3 The area is one that can be described as an urban environment with a number of dwelling houses in particular on the high side of the road in the vicinity of the subject site and also a number of residential flat buildings. The area is steeply sloping and commands views of the hinterland in terms of looking over other residential flat buildings, the tops of houses and towards the Queenscliff beach area.

4 The premises built at No. 31 are a recent dwelling house constructed with the approval of the council and nearing completion. The property has vehicle access from a relatively steep drive from the street and there is also currently erected adjoining the garage area the new concrete steps to provide access to the subject property known as 31 Queenscliff Road.

5 I will preface my findings by saying this is a rather unusual case where it involves an application for works to be carried out in front of another property in terms of the erection of new stairs for the access of No. 29. I will also state at the beginning of my findings that it is clear that the Court must determine the development application as shown in Exhibit A which is the submitted plan.

6 I will also state that it is to the Court’s mind a most unfortunate incident of what often comes to this Court in terms of neighbourly disputes and it would appear that there has been perhaps a lack of communication on the part of all parties in these proceedings and that has generated some ill feeling between neighbours to the point where it is, as I said, unfortunate that the situation escalated to the extent that we see here today.

7 When matters come before this Court clearly I must look at the merits of the development application, but in the process the Court on occasions endeavours to assist in promoting the resolution of neighbourly disputes. In many neighbourly disputes council is often put in rather awkward situations, that is also recognised and in that regard the Court had the opportunity of hearing from council’s assessment officer and other persons involved in the matter.

8 The conditions against which the applicant is appealing were contained in the consent, as I stated, determined by the council on 16 August 2005. The development application was initially lodged on 21 April 2005. It is noted that the letter of determination or advice concerning the determination was apparently received on 31 September 2005.

9 The condition appealed against is “alterations to and demolition of the existing building shall be limited as shown on the approved plan and the approved plan identifies in red the area excluded from the consent.” The area excluded from the consent is the existing staircase in front of the subject property provide that access to the adjoining property at No. 29. There is no dispute that the existing staircase has been ‘in-situ’ for approximately 80 years and at that time it may not have required consent.

10 Condition 4 is also appealed against, that is “no consent or approval is given or implied to remove the existing staircase.” And condition 5 is “the upper portion of the fence is to be of an open nature”, however this is no longer appealed by the applicant although it was in the original appeal when lodged. A consequential amendment, if the Court was minded to approve the application, would be condition 20 which states “permanent unobstructed access via the staircase that is in situ”.

11 The council identified a number of issues in its Statement of Issues, Exhibit 5, and at the end of the day Mr Howie, acting for the council, stated that the issues as identified, 8 through to 12 and No. 15, are the relevant ones for the Court’s consideration, that is:

Issue 8: The removal of the existing steps and staircase and the construction of a new stairway to No. 29 would have unacceptable impact upon the natural and built environment of No. 29 and the public road during and after the carrying out of works.

Issue 9: The applicant has failed to demonstrate there will not be an adverse impact upon the owners and occupiers’ enjoyment of No. 29 brought about by the carrying out of the works.

Issue 10: The applicant has not demonstrated there is any reason why the existing steps and staircase to No. 29 needs to be replaced having regard to the present physical condition of the steps and stairway and the likely impacts of the works.
Public interest, issue 11, the carrying out of the works is not in the public interest in particular in terms of the promotion and coordination of orderly and economic use of the land and the provision of land for public purposes and the provision and coordination of community services and facilities.

Issue 12: The carrying out of the works is not in the public interest having regard to the objects of the Roads Act for the regulation of the carrying out of activities on public roads under the Act and the functions of the respondents on Pt 9 of that Act to approve access to private land generally within Queenscliff Road and with respect to the proposed works.

Issue 15: The Court would not grant consent having regard to the submissions made from the owners of No. 29.

12 The Court had the benefit of a site inspection carried out in the presence of the parties and also heard evidence on the view from the applicant herself and from Mr Sampson who is council’s building inspector surveyor. He also provided evidence on the site to say that in his opinion the existing steps that service No. 29 in his opinion, could in fact be upgraded at no great additional expense to, meet the performance requirements of the BCA in terms of 2.5.

13 Mr Roberts-Valk, a building consultant for the applicant, gave evidence to the Court that in his opinion the steps servicing 29 were unsafe and that they would need substantial work for upgrading and in this regard he relied on the deemed to satisfy numeric provisions of the BCA.

14 The Court also heard evidence from Mr Philip Hoffman, council’s assessment planner for the development application the subject of this appeal.

15 Mrs Milanja gave evidence as the applicant of No. 31 Queenscliff Road.

16 Mrs Wagner also gave evidence, the owner occupier of 29 Queenscliff Road.

17 The Court has the benefit of the site inspection and being able to view the current stairs in heir location, the location of the proposed new set of stairs to run parallel to the road in front of the property known as at No. 29. The existing stair was constructed to provide access to No. 29 some decades ago but the concrete platform has been added more recently. The Court also had the opportunity to view other stair access within the vicinity

18 Mr Doyle submitted on behalf of the applicant that the principal objections of the applicant to the existing stair are that it unreasonably impacts on the privacy of the internal and external living spaces of her residence and that it imposes an unreasonable visual impact on the frontage to their property at No. 31. She also says that the new stairs will provide a more direct and attractive means of access for the occupants of No. 29 and will minimise interaction between neighbours who have a history of argument. She says that the truth of these propositions is evident from the inspection of the site.

19 The applicant says that the existing stairs are in a dilapidated and dangerous state and require substantial works to bring them to a reasonable modern standard. She also considers they are unattractive and incongruous with more recent development of the street and the applicant considers the privacy impacts and poor appearance of the stairs is most clearly evident when observed from inside and outside of her property, in this regard the Court had the opportunity of viewing from inside the premises. Although it is not a matter for my determination or my consideration in this appeal, the applicant has advised if she is not granted approval to replace the existing stair as shown in the plan she may landscape in the area her own stairs and change the pedestrian access to the existing stairs. However, she sees a common staircase for the two properties as undesirable and the proposed the DA as a better solution.

20 In this regard, as could be quite readily gleaned from the time the Court did the inspection on site, a great deal of animosity has developed between the neighbours. However, I say at this point in my proceedings that the views of objectors and applicants is a matter for consideration but that cannot outweigh the merits of a development application in an assessment under s 79C(1) of that Act. Consents run with the land and properties are sold from time to time.

21 The applicant is concerned that the width of the property in terms of the visual impression when viewed from the street is that the property at No. 31 has a much narrower frontage than that of No. 29 if one has regard to an elongation of the boundaries over the public reserve area and that it is inappropriate for the stair access to the property at No. 29 to be across or within the public domain in front No. 31.

22 From the site inspection it could be seen that the landscaping within No. 31 on the common side boundary with 29 it is clear that the width of the property is visible from the street with the Murrayas that have grown successfully along that boundary.

23 It is noted in the plan that the removal of the letterbox for No. 29 was proposed in the development application. By way of comment the existence of the letterbox for 29 appears to be in front of 31 in the public domain area and thus has also given rise to some concerns for the owners of 31 and it may be a neighbourly gesture for this letterbox to be relocated to be within front of the prolongation of the boundaries of No. 29 or in fact near the garages of that particular property. The public domain, the public reserve area of the road, is there for all pedestrians and for all people and should not be seen as the province of the property owners as anyone, any of the public whether it be neighbours or other general public, have access to such areas. Yes, it is a tradition within our society that the verge outside properties immediate be maintained by the property owner. Part of this application is the desire to enhance the public domain to also provide for an enhancement for the property at No. 31 and this is not criticised.

24 I will say at this point in my verbal judgment, but I will give reasons below that the appeal in respect of the conditions should be dismissed.

25 For the record the background to this matter is provide as I could clearly see the animosity that has been created in this matter and this allowed the Court to have some understanding. It was also in the spirit of trying to assist in resolving the neighbourly discomfort that occurs between 29 and 31.

26 It is noted from Exhibit F, which is a bundle of documents provided and the Court requested, that on behalf of the applicant solicitors wrote to the council 15 November stating that, amongst other things, the staircase is in a rundown and unsafe condition and on behalf of his client it is requested that it be removed by council from its present location and rebuilt by or with the approval of council entirely in front of the property it serves at 29 to connect with the existing driveway at that address. I am informed that its construction would cost less than the renovation of the owners for the current staircase.

27 It is also noted on 14 March a further letter was written to the council about the stairway and an application for the upgrading of that and that the letter from the solicitors states to the council “one would have thought that once it was established that the offending staircase was erected without consent of council its demolition would have been ordered” as it is contrary to the Building Code of Australia and also requesting that there be no further action until a development application has been lodged by the current applicant.

28 It is noted that in April 2005 the council wrote to the adjoining neighbours to submit a permit under 138 of the Roads Act to allow certain works to be carried out to upgrade the stairway and it states that “As discussed, the staircase is considered a type 1 encroachment under the Road Reserve Encroachment Construction Policy” and that there is currently no approval, you are therefore advised to submit a written request within thirty days for approval under the policy and council will issue an approval following your request, however any approval issued will require the stairs to comply with the BCA”.

29 There was then such a request made in terms of s 138 and approval was granted by the council for the Stair Rise Heights and Balustrades on the reserve in compliance with the BCA and there was a plan submitted by the owners of No. 29 in respect of the approval which the council issued on 24 August 2005.

30 It has also been pointed out on behalf of the council by Mr Howie that it would appear that the s 138 approval whilst that has been granted and it would appear that it refers to the BCA deemed to satisfy standards. Mr Howie indicated to the Court that however it would require a development application in terms of the Warringah LEP and in this regard the development would not appear to be complying development in terms of Sch 1 or 2 of council’s plan as Development is exempt development unless it is on land reserved for a public purpose or being acquired or required to be reserved. The schedule also then details that driveways and pathways that are exempt development are not over public land.

31 However, this is not a matter for this Court in these proceedings. Furthermore, it is not the safety of the current stairs that is the issue in these proceedings, it is the erection of a new staircase in front of No. 29 as set out in the development application under appeal.

32 The staircase in front of No. 29 needs to be assessed in terms of the merits and I am not satisfied in terms of the application that has been submitted that it is appropriate to erect a staircase in the location identified on the plan in terms of the visual impact on the streetscape. The existing staircase to No. 29 the Court’s observations would require some upgrading, however it is less intrusive in terms of the visual catchment from the street than the proposed staircase.

33 The council indicated that if the staircase was to be approved then it would require a concrete staircase. Clearly a concrete staircase would be most intrusive and the Court certainly would not agree to a concrete staircase in the location identified. However, I am also of the opinion that even the timber staircase as proposed in the plan is an inappropriate encroachment to the public domain and should not be approved.

34 As I stated, it is not a matter of easier access for the owners of No. 29 that is in issue and whilst the applicant has endeavoured to provide access in front of the property at No. 29 it would be inappropriate for the Court to grant approval for the subject application on its merits in terms of the impact on the streetscape.

35 It is noted on the development application that the supplementary landscaping to be carried out in front of No. 33 was as agreed to between the neighbour, but clearly the works shown on the plan outside the property at No. 29 have not been agreed to by the owner at No. 29.

36 There is a further history associated with this matter in terms of the use of the staircase. The staircase can be accessed and used by the public as well as the owners and visitors to No. 31 Queenscliff Road. It is all very well to have hindsight in these matters and clearly a joint staircase access in the current location of the existing staircase is the preferable course of action. The Court cannot impose such a requirement and this was also pointed out in terms of the applicant’s representation and clearly it was also indicated that the difficulty that would arise in the use of a joint staircase although it is noted by the Court that Mrs Wagner indicated that they would have no difficulty in it being a joint staircase and clearly if the applicant wishes to place a gate on her front boundary to access the current stairway there would be nothing to prevent such a course of action.

37 It is noted that where road reserves are landscaped in front of properties in many places shared access is provided especially over steeply sloping land and it is a commonsensical approach to ensuring there is a rationalisation of access points along the street to ensure that these elements do not impose unduly on the streetscape.

38 The Court must assess the application on its planning merits but in these proceedings there was little focus on the merits but it is noted that the parties agreed that it would be the expertise that the Court brought to this matter in terms of town planning that would allow a merits assessment. In this regard it was not necessary to provide expert evidence. In my assessment I do not agree that the current staircase is an ‘ugly or an unsightly intrusion’ into the public domain. I also consider that whilst it is visible from within the premises and from the front yard at 31 Queenscliff Road that it is not unsightly or it is not an unusual occurrence to see stairways in areas where it is sloping or in fact to observe a balustrade from the premises.

39 With respect to the issue of privacy the Court can see that the issue of privacy has become a much larger perception problem. The Court is of the view that there could be appropriate landscaping in terms of a return of the Murraya hedge currently grown on the side boundary. It is recognised that this would not necessarily be located along the front boundary as such because the Court has been informed that there are services at that point but there is an opportunity to still landscape and allow a view or overlooking of the street and also to provide for some privacy to the residence at No. 31. The use of the stairway in terms of people coming and going could be mitigated by some appropriate and careful location of plants within the front yard area of No. 31.

40 I note that after the application had been made in terms of a s 138 permit that there was an attempt by the owners of No. 31 for the dual use of the stairway in front of their property. However this would have involved walking in front of, for a much greater length of the front boundary, to then access the gate at No. 29. The joint use of that particular staircase would not appear to be desirable or acceptable for either the owners of 31 or 29 but the location of the existing stairway would appear to be a more appropriate point for joint access being more centrally located. However this is not a matter that the Court can in any way impose and it may be a matter for another day given my refusal of the development application on its merits in terms of s 79(1)(c).

41 The fact that the staircase was built over eighty years ago is remnant of the history of the area in terms of accessing properties and redevelopment of properties does not mean that the original and existing access points and stairways should be removed or deleted to allow people of other properties to access the roadway. The landscaping that has been approved by the council can be carried out and the applicant can proceed with this.

42 The question of safety was raised as one of the main planks as to why the new located stairs in front of No. 29 should be approved. However this is not an issue in these proceedings and the Court states by way of comment only that there appears to be a need to upgrade those stairs, clearly the council has indicated to the owners of 29 that they would need upgrading and there has been as s 138 approval. But this is not a matter that the Court should go into, similarly the fact that it may require development application approval as indicated by Mr Howie is a matter for the council.

43 The mere fact that the owners of both properties may prefer separate access points is merely a circumstance but I must look at the merits of the application and I do not consider it appropriate for the works to be carried out to construct a new stairway as proposed in the development application. I can understand through the correspondence that I have had the opportunity to peruse that the applicant may feel aggrieved and the applicant also may feel that there have been circumstances which have led to the application as submitted, but clearly such an application would need to be discussed with the adjoining neighbours as indeed it would appear that the plan was discussed with the adjoining neighbours at No. 33.

44 The Court in dismissing the application under s 83 of the Environmental Planning and Assessment Act does not need go further and refuse the application. The consent that the council issued or determined on 16 August 2005 is reactivated in terms of s 83 of the Act.

45 This is a case that unfortunately has come to the Court and the applicant indicated that it was not the preferred course of action, and that there were attempts to perhaps mediate the matter, but then in terms of the correspondence there may have been aggravation caused in terms of what was an alternative.

46 It is clear that the issue of access is something that needed to be considered on the purchase of the land and on the initial development application for the new dwelling house. With the benefit of hindsight, an upgrading of the existing staircase for both properties would have probably been the appropriate course of action. Similarly, it would have been desirable for the council to encourage the shared use of the staircase however Mr Hoffman did not really consider this to be a realistic proposition because of the animosity that had been created but when asked about the planning merits he considered that the joint or dual access would be appropriate from a planning point of view. However, the Court’s role is to assess the planning merits of the development application before it.

47 From my assessment of the matter and I was conscious not to prolong the proceedings but at the same time I did benefit by an understanding of the chronology of events that has led up to the unfortunate situation between neighbours and there is clearly a disproportional or a lack of proportionality in terms of these proceedings but at the end of the day the Court must determine the merits of the application and it can only attempt to assist neighbours in terms of “getting on with their lives” to resolve issues.

48 The orders of the Court in this matter will be:

(1) The appeal under s 97 of the Act against the conditions imposed by Warringah Council on the development application submitted 21 April 2005 is dismissed under s 83(2)(b).
(2) The exhibits except for 4, 5 and A are returned to the parties.

49 The consequence of the order 1 above is that the consent already granted by the council and that ceased to be effective on the lodgement of the appeal under s 97 becomes effective and operates from the date of determination of this appeal pursuant to s 83. In circumstances where this Court refuses development consent as well as dismissing an appal then the Council’s consent would become void and taken never to have been granted pursuant to s 83(3)(a) of the Act.

50 By way of comment. The issue of the gate to the premises in the vicinity of the existing stairway given my judgment and given my findings is a matter that the parties will no doubt be in a position to consider and to bring commonsense to the matter. Clearly the owners of No. 31 cannot be denied use of the stairs.

51 DOYLE: Commissioner, just on that last point that you raised. I put to Mr Howie before the hearing that if your judgment went the way that it has that it might be a good idea to submit an amended detail showing the gate because the consent which has not been reinstated includes the reconstruction of that fence and retaining wall, that if leave could be granted to the applicant to file an amended detail showing a gate perhaps in the location of the existing opening in that wall and then that plan would just be submitted and then stamped with the formal orders of the Court because as I understand it with the decision made in the terms that you’ve granted it the consent will still issue from the Court rather than from the council and so the stamped approved plan would be a council approved plan. I think were this appeal against conditions Mr Howie might wish to correct me, but I think it’s still a consent issued by the Court.

52 COMMISSIONER: The terms which I’ve used to dismiss it as opposed to refuse it, I can change that if there is no objection and a new plan. And I wouldn’t be adverse to a new plan, I thought it would have been something that the council could have quite clearly have attended to.

53 DOYLE: Alternatively you could state perhaps as issue 4 that you have to change the conditions really to allow a different plan to be filed but you could, it would seem to me - it becomes a little bit complicated, maybe that is the best way, I don’t know, or maybe you could just make the observation, Commissioner,--

54 COMMISSIONER: Which is what I’ve done.

55 DOYLE: --that a development including the gate - I’m just a little concerned at what the neighbours might say who aren’t in attendance today, that a gate - the insertion of a gate into the construction certificate plans would be viewed by the Court to be consistent or in accordance with the approved plan.

56 COMMISSIONER: I can understand the applicant wanting some certainty from these proceedings. The way I have framed the order, which I can change, is that only the appeal is dismissed, not consent refused. I can change it such that on the submission of a plan development consent will be granted to show a gate et cetera. Mr Howie, you heard my judgment and my hope would have been that the council would not be obstructionist in terms of clearly it was a matter that was brought up in the proceedings and it was quite clear that anyone can access stairs over a public area.

57 HOWIE: And I think that’s consistent with everything that’s been said to you, I don’t think there’s any quibble about that. I think we’re probably just at the point of some mechanics here--

58 COMMISSIONER: Yes, that’s as I see it.

59 HOWIE: --as to whether you finalise your judgment and your orders having made that abundantly clear or whether you think it appropriate to list it for another callover so a detail of whatever can be put in--

60 COMMISSIONER: I don’t propose that at all. What I would allow is for a plan to be submitted, after it’s also been forwarded to the council, to show a gate in the location if the applicant considered that--

61 DOYLE: Perhaps if order 4 was framed in terms of - I think that the orders you’ve made could stand and if a further order 4 were made giving the applicant leave to file a plan incorporating a gate prior to the issuing of the development consent in those proceedings.

62 COMMISSIONER: Is a front gate exempt development, Mr Howie?

63 HOWIE: Off the top of my head I don’t know.

64 COMMISSIONER: We have Mr Hoffman here, he may be able to assist us.

65 DOYLE: The only reason I raise this and the terms I raise it is I don’t want the council officer to be burdened by the neighbours of 29 perhaps questioning whether that gate can be instituted.

66 COMMISSIONER: I hear what you have to say. So what I’m going to do is I’m going to retract the orders I made in the judgment. Mr Hoffman first of all might be able to advise me.

67 HOFFMAN: I’m not sure if it could be ..(not transcribable).., probably would be ..(not transcribable)... My only thoughts were as long as we make an inward opening gate ..(not transcribable).. the new step and threshold because they’re new work would need to marry into the existing platform where carries out to ..(not transcribable)..

68 COMMISSIONER: Well, given there’s been confusion about what’s exempt development previously, then what I’ll do is I’ll then allow a plan to come in and allow council the opportunity to comment on that plan.

69 HOWIE: It would have the benefit of completeness, Commissioner.

70 COMMISSIONER: Yes, completeness and certainty. Yes, I agree with you, Mr Howie and Mr Doyle. Very well.

71 I retract my orders that I’ve made and on the receipt of an amended plan showing a gate in the vicinity of the existing stairway on the boundary of No. 31 and that plan can show the deletion of the staircase in front of 29. The plan can show, consistent with my judgement, the deletion of the staircase in front of 29.

72 HOWIE: I see, the new staircase.

73 COMMISSIONER: The new stairs. And any other consequential changes to landscaping that would be required in the vicinity of the boundary of 31 as well as a result of the gateway. So there would be a plan which just tidies up which gives effect to my judgment and that is to be provided to the council. At the same time council will have a period of seven days to provide comments back to the applicant and then that can be forwarded to the Court and upon receipt of that I will then issue orders.

74 HOWIE: In accordance with what you’ve then said.

75 COMMISSIONER: Yes, and there would be liberty to restore in the event of anything--

76 DOYLE: It may be appropriate - I don’t think there needs to be any direction but no doubt Mr Howie and myself might prepare short minutes taking into account your agreed short minutes of the orders.

77 COMMISSIONER: Yes, and then on receipt of that plan the orders that the Court will issue would be:

78 (1) the appeal under s 97 against the conditions imposed by the council is generally dismissed;

79 (2) consent is granted to the amended plan, and then that number will be inserted there; and then

80 (3) the exhibits except for 4, 5 and A are returned and the new plan.

81 And the new amended plan will be Exhibit G. So in fact 4, 5, A and G, except for those exhibits, are returned now. And I will make a transcript of this judgment available to the parties as soon as possible, it should be in approximately two weeks, so that you have the benefit of that.

82 HOWIE: Then does it really at this stage require an informal order, Commissioner, you’ve indicated--

83 COMMISSIONER: Well, at the moment I’m not issuing a formal order but on the receipt of the plan yes.

84 HOWIE: All that you are really directing is that an amended plan come in on this timetable--

85 COMMISSIONER: Yes, but I’ve given my judgment, so what happens is that hopefully the judgment together with the issuing of the orders with the amended plan can be all issued together.

___________________
J S Murrell
Commissioner of the Court
Rjs/ljr