Mirzikinian v Mosman Municipal Council

[2004] NSWLEC 288

Land and Environment Court

of New South Wales

CITATION:	Mirzikinian v Mosman Municipal Council [2004] NSWLEC 288
PARTIES:	APPLICANT Paulette Mirzikinian RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10128 of 2004
CORAM:	Nott C
KEY ISSUES:	Appeal :- Application for a building certificate for two unlawfully erected external staircases on side of house and unapproved changes to undercroft - visual and noise impacts - other unlawful works not the subject the application for a building certificate - additional works would be needed to mitigate impacts - new works may be the subject of a development application - it is open to council to grant development consent for proposed new works to the already erected unlawful works
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 149F
CASES CITED:	Hooper v Lucas [1990] NSWLEC 93
DATES OF HEARING:	02/06/2004
EX TEMPORE JUDGMENT DATE :	06/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr W P O'Rourke, solicitor SOLICTORS Deacons RESPONDENT Ms J A Walsh, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

2 June 2004

10128 of 2004

Paulette Mirzikinian

Applicant

v
Mosman Municipal Council

Respondent

Judgment

1. This is an appeal under s 149F of the Environmental Planning and Assessment Act 1979. The applicant seeks a building certificate in respect of parts of a building at 1C Beaconsfield Road, Mosman.

2. The application for a building certificate was not determined by the council and the applicant appealed to the Court. The parts of the building for which the applicant seeks a building certificate are two staircases and building works to an undercroft area or adjoining the undercroft area of a dwelling house at the subject property.

3. In order to understand the buildings on the subject site, I should mention that at the street level there is a garage with an understorey area. The understorey area is at the level of a pool, and the entrance to the house is along the side of the pool in a small landscaped area. There is a further drop to the house where what is called the ground floor is below the pool level but is elevated at its eastern end because of the slope of the land. At this ground level, there are mainly living areas of the house and there are extensive views towards Manly and over part of the harbour. It is also possible to look down into the rear yard of the adjoining property at 3 Beaconsfield Road.

4. Underneath the ground-floor level of the house is the lower-ground-floor where there are principally bedrooms. Underneath the lower-ground floor towards the eastern end of the house is the undercroft area.

5. Formerly the only access to the undercroft area was via a spiral staircase from the lower-ground floor. Access to this spiral staircase was through a bedroom. The situation has been changed and the balcony outside the bedroom has been extended and a staircase has been provided from the lower-ground floor to the undercroft area.

6. In addition, the previous situation has been changed by the construction of another staircase connecting the ground-floor area to the lower-ground floor balcony where the staircase then runs to the undercroft area. Formerly, there was no access available down the side of the house from the ground floor.

7. At the front of the house in a covered area is an entertaining area. The front doors of the house open up to provide as it were an extended entertainment area. One of the complaints of the adjoining neighbour at No. 3 Beaconsfield Road is that adults could congregate in the upstairs area on the ground floor at the front in this covered entertainment area and children could be playing down in the undercroft area, with easy access available to the undercroft area down the side external staircase that has been since created to the lower-ground floor area and then down the new external staircase from the lower-ground floor area to the undercroft area.

8. The building certificate is sought in respect of the two staircases, that is, the staircase from the ground floor to the lower-ground floor and the staircase from the lower-ground floor to the undercroft area, and also in respect of works that have occurred to the undercroft area or immediately adjoining that area.

9. Evidence for the applicant was given by Mr Grant Harrington, a building regulation consultant. His evidence was to the effect that under the Building Code of Australia the staircases that have been constructed are satisfactory. He was also of the opinion that having regard to the nature of the use of the undercroft area, the floor-to-ceiling height would be acceptable because the undercroft area is not an enclosed room. On behalf of the applicant, Mr W Mirzikinian also gave evidence. And there was also evidence for the applicant from Ms C Orford, consultant town planner.

10. Mr G Briggs, assessment officer (fire and building), gave evidence for the council, as did the adjoining owner at No. 3, Mr P Gotch.

11. Also, documentary evidence was tendered including plans relating to the original approval of the house and to the subsequent approval of the garage and swimming pool areas.

12. It is relevant to note that one of the approved plans in respect of which it appears there should have been compliance is a plan by Rice and Daubney Issue A dated 22 May 1980, drawing L1. This plan shows landscaping in all of the undercroft area or at least in a large part of it, together with landscaping outside the undercroft area on the northern side of the house adjoining the common boundary with No. 3. It also shows the originally approved spiral staircase I referred to earlier which is set back from the common boundary with No. 3.

13. In carrying out works to the undercroft area, the applicant has removed all landscaping that was formerly there. Some of this former landscaping can be seen in the photographs produced by Mr Gotch. The effect of the works to the undercroft area has been to create a children’s play area with a flat tiled floor partly underneath the undercroft; and extending in parts to the northern common boundary with No. 3 is a synthetic grass area.

14. The actual works to the undercroft area that have been carried out can be seen in the plan by Watson Buchan dated 13 April 2004, exhibit E. Similar details can be seen in the plan to a larger scale exhibit F being plan 010320B. Other plans which show the undercroft area and the works that have been carried out to it or adjacent to it together with the stairway connecting the ground floor to lower-ground floor are plan Nos 010413, 020413 and 030413 dated May 2004, exhibit A.

15. The council opposed the granting of a building certificate having regard to the impact of the proposed works on the adjoining property. The council claimed that there would be adverse impacts by way of overlooking and noise created by children playing in the area which formerly could not be used as a play area but was completely landscaped. It was claimed that there would be overlooking from the stairway (from the ground floor to the lower-ground floor) into a bathroom of the adjoining property at No. 3 which has clear glass. There would be no overlooking into this bathroom it seems if the staircase did not exist. There would also be overlooking from the area immediately adjacent to the northern boundary near the undercroft area back towards the living area at the lower-ground floor of No. 3.

16. From a visual point of view, the adjoining neighbour at No. 3 objected on the basis that landscaping had been removed from the undercroft area or adjoining it near his common boundary. He was concerned also about the impact of works that had been carried out without building approval and had not yet been completed, namely a large wall on the boundary, generally running between the upper external staircase and the lower staircase. This wall has an unsatisfactory appearance on its northern elevation, which faces No. 3. The house on the subject land is a greyish-green colour; this fairly large wall which has the appearance of a masonry wall (although it is in fact finished in lightweight material) is unpainted and unfinished on Mr Gotch’s side.

17. There was also concern about runoff from the area immediately adjoining the undercroft on to No. 3. Formerly that was a landscaped area which on one view of the matter could have absorbed rainwater or runoff water that presently falls on the open decks at the ground floor and lower-ground floor of the subject house and then discharges to the side of the subject land. However, it seems there was a problem with soil not being retained on the subject land prior to the works being carried out near the undercroft, and that some soil was washed down into the adjoining property.

18. One of the reasons given by Mr Mirzikinian for having the paving was that this would prevent soil being discharged to the adjoining property and I tend to accept that opinion. Nevertheless, it seems to me that there could be runoff from the planter boxes at the subject building, and from the decks over the side of the building, onto the small area between the undercroft and the adjoining property to the north, and that drainage would have to be attended to. The present plans relating to the undercroft area do not provide for the disposal of stormwater falling on to the area adjoining the undercroft. The area adjoining the undercroft has, as I mentioned, been covered in part by artificial turf. There is also a detention tank which has been covered over with some panelling but it appears that the levels above the detention tank have not been raised. Formerly, it appears that there could have been soil above the detention tank having regard to the landscaping that is evident from the photographs produced by Mr Gotch.

19. There is also a question relating to safety, in that the floor-to-ceiling height at some points in the undercroft is only 1,780 mm, although generally much of the undercroft ceiling appears to be about 1,850 mm in height.

20. Having considered all the evidence, I am of the opinion that it would be inappropriate at this stage to issue a building certificate and I have decided, notwithstanding the powers that are apparently available to the Court set out in s 149F(3) of the Environmental Planning and Assessment Act 1979, to refuse an adjournment of the proceedings and to express my views or in some cases tentative views about the matters that have been the subject of evidence before me today.

21. In refusing the adjournment, I also note that the council undertakes not to commence any enforcement proceedings or issue any orders against the owners of the subject land over the next five months provided that a development application is lodged with the council within one month in respect of additional works (to be finally determined by the owners) on the subject land. The additional works would have the purpose of ameliorating the impacts of the unlawful works on the adjoining neighbours at No. 3. It would be open to the council if it saw fit to grant development consent for the additional works if it was of the opinion that the completed structures (being the proposed new works together with the already existing unlawful works) would be satisfactory: cf. Hooper v Lucas [1990] NSWLEC 93.

22. In granting such an approval, the council is not retrospectively approving the unlawful works. Of course, if the council is of the opinion that the additional works would leave the unlawful works in an unsatisfactory state, the council would no doubt refuse the development application. In dealing with the development, the council would be able to impose appropriate conditions relating to any changes to the design if it sees fit or indeed in relation to the use of the structures.

23. There is doubt as to whether the Court in issuing a building certificate which relates only to a structure can deal with questions of use. In any event as a matter of discretion, I think the appropriate course would be for me not to deal with questions of use nor to try to design in advance, in the absence of any plans, changes which could be made to the structures already erected.

24. One of the complaints of the adjoining neighbour is that various works have been carried out without the lodgement of any development application accompanied by appropriate plans. The council back in August 2002 gave notice that no further works were to be carried out in respect of the subject land and that a development application was to be lodged, but no such application was in fact lodged. In refusing this application, I understand now that the applicant would be intending to lodge a development application or at least to consider doing that. Alternatively, the applicant may consider removing some of the unlawful structures.

25. If the council does grant development consent, any concern about the lawfulness of part of the completed structures could be overcome by the applicant applying for a new building certificate for all the unlawful structures and any additional lawfully erected structures. The new application for a building certificate would be lodged with the council with the payment of a small fee of about $70.

26. One of the reasons for my not agreeing to grant a building certificate even in respect of half of the unapproved work is that there is, as I mentioned, other unapproved work, in particular the large wall on the side boundary which runs between each of the existing staircases. One of the complaints of the adjoining neighbour was that the stair structures are unlawful structures that are built immediately adjoining the neighbour’s property in addition to what has already been carried out.

27. It is not an altogether good argument in my opinion to say that the adjoining property at No. 3 is already overlooked and that therefore it does not matter that there would be additional overlooking.

28. However, my tentative view in respect of the lower staircase (from the lower-ground floor to the undercroft area) is that, provided it has a suitably designed screen, that structure would probably be suitable to be the subject of a building certificate, or to be the subject of a development consent in respect of the screen that would be added to the structure.

29. It is important that the screen has a lightweight appearance or alternatively in some way blends in with the existing house. Why this lower staircase is perhaps in a different category to the upper staircase is that it replaces the spiral staircase that was formerly removed. Generally speaking, this lower staircase is also set back from the side boundary although not as much as the spiral staircase. There is also an opportunity to provide landscaping in a triangular section of land embraced by the lower staircase, which is not a straight-line staircase but in fact has a right angle within it.

30. The access to the lower staircase could be at the present time either via the unapproved upper external staircase adjoining the northern boundary or via an internal staircase leading to the lower-ground floor where there is access to a bedroom that opens up on to the balcony from which the lower staircase runs.

31. I am inclined to accept the opinion of Ms Orford that as a person walks down the upper external staircase, the view towards the adjoining rear yard of No. 3 would be limited and it would be only a transitory view because of the nature of the use of the staircase. Perhaps of greater concern is the overlooking into the bathroom. Normally, a bathroom has obscure glazing but the bathroom at No. 3 does not, probably because of the former arrangement and approval of the subject building where there was no external staircase on the side boundary. It would depend in my opinion on whether or not a suitable screen blending in with the subject building could be erected on the upper staircase as to whether or not it would be appropriate either to approve it or to issue a building certificate in respect of it as far as overlooking is concerned.

32. An argument of the council was that having the upper staircase made it easier for the undercroft area to be used by children. I am not altogether certain that that would necessarily be the case. If the undercroft area is going to be used, it could still be used by means of internal access from the ground floor to the lower-ground floor and then through the bedroom to the lower staircase, although it would not be such a desirable means of access.

33. The adjoining neighbourhood was also concerned, as I mentioned, about noise coming from the undercroft in the area or in the area immediately adjoining that area and next to the common boundary fence. In considering any development application, I think the applicant in the first instance who would be proposing it, and then the council in determining it, would have to take into account that the undercroft area and the immediately adjoining area was formerly not a play area at all and was for practical purposes a totally landscaped and generally non-trafficable area. By the same token, it is not uncommon to have children playing in the rear yards of properties and for the noise of children not to generally be such as to need the erection of acoustic screens. It is not as if a small childcare centre is operating or proposed at the subject land.

34. In relation to safety, it seems to me that it would be open to the council to grant development consent if it thought appropriate for the use of the undercroft area as a children’s play area or as a storage area. The possibility of injury to the children is remote, and parents would be aware of the lower floor-to-ceiling height or could be adequately warned about it.

35. In order to reduce the overlooking back into the living area of the lower-ground floor of No. 3 from near the undercroft area, no doubt a development application could provide for a different form of screening or alternatively for a planter box and retention of the existing common boundary fence. This boundary fence is in excess of 1.8 m high measured from the lower adjoining property but the level of the subject property is higher. Development consent was needed for the erection of the fence but none was applied for. By having a planter box together with super-advanced species planted outside the undercroft area and immediately adjoining the northern boundary of the subject land above the retention tank, it would be possible to provide additional screening to the undercroft area. It seems that allowing for access along the side of the subject land outside the projecting balcony of the lower-ground floor, a planter box could probably extend for a distance of about 3.2 m from the existing eastern fence in a westerly direction immediately adjoining the common boundary and have a width of about 500 mm and an appropriate depth to allow sufficiently high-ground landscaping. I also note that the owner of No. 3 has planted trees along the common boundary on No. 3’s side of the fence and these trees are likely to grow to a height well above the height of the existing fence.

36. It would be desirable, if possible, for arrangements to be made to enable, at the applicant’s expense, access to be provided to No. 3 to complete any works that are on the boundary already. There are powers available to the Court under s 40 of the Land and Environment Court Act 1979 which would enable the owner of the subject land to have access to the adjoining property to complete the works, in particular the uncompleted large wall of stone-like appearance. Alternatively, arrangements might be able to be made for that work to be carried out by the owner of No. 3, but there would be no obligation on the owner of No. 3 to carry out that work, and of course the cost of carrying out that work would have to be paid by the owner of the subject land. However, these are matters which would be more appropriately considered should a development application be made.

37. For those reasons I am of the opinion that it is not appropriate to direct the issue of a building certificate in respect of the present application because of the additional works which on any view of the matter would probably be needed. I would not be prepared to grant a building certificate for the existing works in their present condition.

38. Accordingly, the orders of the Court are:

1. The appeal be dismissed.
2. The council’s bundle of documents and the BA plans may be returned.
___________
A J Nott
Commissioner of the Court
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