Moussa v Queanbeyan-Palerang Regional Council

[2019] NSWLEC 1277

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moussa v Queanbeyan-Palerang Regional Council [2019] NSWLEC 1277
Hearing dates:	28 – 29 May 2019
Date of orders:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   Development application DA31/2018 for the erection and use of proposed green roof atop the existing garage and associate structures including 600mm high brick planter, concrete staircase, 1000mm high balustrade and gated steel cable and anchor for maintenance at 2A Meredith Street, Queanbeyan is refused. (3)   The exhibits are returned except for Exhibits A, B and 8.
Catchwords:	DEVELOPMENT APPEAL – rear setback – building design – heritage conservation area – character – streetscape – overlooking to neighbours
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Queanbeyan Local Environmental Plan 2012
Cases Cited:	Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Queanbeyan Development Control Plan 2012
Category:	Principal judgment
Parties:	Wasfy Iskander Moussa (Applicant) Queanbeyan-Palerang Regional Council (Respondent)
Representation:	Solicitors: K Huxley, McCabe Curwood (Applicant) A Bradbury, Bradley Allen Love Lawyers (Respondent)
File Number(s):	2018/312595
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: Mr Wasfy Moussa is the owner of No. 2A Meredith Street, Queanbeyan and he seeks to develop a green roof in formed brick planter beds atop an existing garage which is located at the rear of his property and for which Council (the respondent), has refused to grant consent for development application DA31/2018 (‘the DA’). He now seeks to appeal this decision under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. Subsequent to the appeal, the applicant was granted leave by the Court to rely on amended plans on 12 October 2018, which included the following amendments;

• Removal of the privacy aluminium louvre screens,

• Double brick planter box height was reduced from 1m to 600mm high,

• The addition of the 1m balustrade and gate to the western side of the garage roof to prevent non maintenance related to the rooftop,

• Detailed design of the planter boxes including drainage, stone mulch, soil and planting schedule,

• The additional of steel cable and anchor added for use in green roof maintenance, and

• The addition of shadow diagrams for the winter solstice.

3. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the LEC Act) on 28 May 2019, which commenced with an onsite view under s 34(1) of the LEC Act between the parties, and at which I presided.

4. During the view of the site, the Court received submissions from two neighbours, Ms Martyn and Ms Tsakolos, and attended Ms Martyn's property at No. 67 Campbell Street to understand the privacy and amenity impacts contained in her submission.

5. The Court also viewed the site from the eastern side of Campbell Street in the nearby Queanbeyan Park and from the northern side of Meredith Street before entering the property to ascend the concrete staircase up to the roof of the existing garage, which is a concrete slab around which Mr Moussa has erected temporary barriers.

6. The view from the roof of the garage is commanding. As it is located in the rear of the site, it enjoys an almost uninterrupted view over outbuildings and rear yards of properties in the area. To the east are the mature trees and the landscaped grounds of Queanbeyan Park. To the west there is a distant view up a gentle slope to higher ground beyond. To the south there is a clear view in the rear yard of No. 67 Campbell Street, including a covered area used for outdoor dining and through a large north facing window into the neighbour's kitchen. To the north, the side yard to No.63 Campbell Street is visible.

7. The conciliation conference continued after the onsite view, however as the parties failed to reach agreement on the issues in contention, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act and proceeded forthwith to hearing. The parties did not consent to material discussed during the conciliation conference to being relied on in proceedings.

8. The parties engaged experts who prepared joint expert reports to assist the Court. Assisting the applicant was Mr Glenn Apps (Town Planning) and Mr Eric Martin AM (Heritage). Assisting the respondent was Ms Chelsea Newman (Town Planning) and Mr Philip Giovanelli (Heritage).

9. In essence, the issues can be summarised as followed:

1. Contention 1: the proposed development is not in keeping with the character of the existing dwelling, the street and surrounding locality.

2. Contention 2: the proposed design, height, built form and materials are not compatible with the surrounding area and streetscape and are not appropriate for development within a heritage conservation area.

3. Contention 3: the proposed development will have an unacceptable adverse impact on neighbouring residents.

10. It is of some relevance that the development the subject of the development application before the Court seeks approval for some works that have already been completed and for which consent has not been granted prior.

11. On 22 November 2017, the respondent issued the applicant with orders to do such things as were specified in the terms of order and within a period of compliance pursuant to s 121B of the EPA Act (as it was then) and which consisted of the following:

1. to cease using the roof of a garage as an elevated deck,

2. removing all fencing and barriers from the roof of the garage,

3. remove the stairs leading up to the roof, and

4. provide a report from a structural engineer that demonstrated the garage, especially the roof, is structurally sound.

12. Instead, the applicant sought to regularise the works and lodged a Building Information Certificate to council, that was refused, and so a DA was lodged on 2 February 2018.

13. As a consequence of the above, some of the works for which approval is now sought are already in situ and so allow an assessment of the development application to be understood from what is there, and not solely on the basis of what is proposed.

14. The parties are agreed that the proposal complies with the numerical controls in the maximum height set out in cl 4.3 of the Queanbeyan Local Environmental Plan 2012 (QLEP). However, the respondent contends that the proposed works are not consistent with the objectives found in cl 4.3 which relevantly include:

"a) To ensure that the height of buildings complement the streetscape or the historic character of the area in which the buildings are located, and b) to protect the heritage character of Queanbeyan and the significance of heritage buildings and heritage items."

15. The respondent also relies on height provisions found in the objectives and controls at section 3A.8 of the Queanbeyan Development Control Plan 2012 (QDCP) relating to outbuildings, sheds, garages etc and which at (b), limits the wall heights of outbuildings to 3m and the ridge height of an outbuilding to 4m.

16. While the applicant noted objections to the respondent relying on the provisions of section 3A.8, as they were not originally included in the Statement of Facts and Contentions prepared by the respondent, the respondent addressed the Court on those provisions in opening submissions, unopposed.

17. Vertical dimensions are found on a number of elevation and section drawings in Exhibit B which the respondent brought to the attention of the heritage experts, who agreed that the height of the proposed development will exceed the maximum height permissible under section 3A.8 of the QDCP.

18. The height of the proposed development is, in my view, a common element in all of the contentions. In essence, the respondent is concerned at the visible prominence and nature of the proposal when viewed from neighbouring properties, and from the public domain, and its possible adverse impact on the heritage conservation area.

19. Height is again at the centre of concerns held by Ms Martyn and Ms Tsakolos who reside at No.67 and No.63 Campbell Street, and maintain that their privacy will be compromised when overlooked by any person or persons ascending the stairs to stand on the green roof, presumably to maintain it.

20. Whether or not the proposed works will be of a height that is visible goes directly to the issue of design and character which the respondent cites as a key element to their submissions, and in support of this notes Part 3A.2.1 of the QDCP which seeks to ensure the high amenity and continuity of design and character in residential areas.

21. If the proposed works were entirely concealed behind a boundary fence or behind the existing carport and any use and maintenance of the landscape also occurred out of sight, it is likely that the issues in dispute would be further narrowed or disappear altogether.

22. However, the applicant is limited in the choices they are able to make in regard to height, bulk, scale and location of the works by virtue of the fact that a portion of the proposed works already exists, as outlined earlier.

23. The applicant submits there is nothing to prevent the applicant from planting a hedge to the southern boundary that would be of an equivalent height to the proposed works and similarly the applicant could choose to mount a ladder to maintain the garden or perform any other task without sanction.

24. The applicant seeks to address the neighbours’ concerns by taking steps to limit access to the green roof. To this end, the applicant proposes conditions of consent to limit access to the green roof to not more than two persons at a time, and to limit the times of day when maintenance may occur.

25. The applicant also relies on a schedule of landscape maintenance on drawing L-O2 revision G in Exhibit B, which purports to show that maintenance of the selected plant species may be limited, as noted by Mr Apps in evidence, to 15 or 20 minutes to perform some of the tasks in the schedule, and that due to the selection of the stone mulch it is unlikely that mulch would break down and require replacement.

26. Mr Apps also identified the schedule of landscape maintenance may overstate the access requirement by containing tasks that may not be required such as mowing, edging and blowing.

27. In her evidence, Ms Newman, who along with Mr Apps acknowledged they did not have expertise in horticulture, noted that the maintenance of a garden can be dictated by factors beyond a maintenance schedule such as when drought may cause die-back and require replacement of plants, or when watering restrictions preclude automatic irrigation systems and require hand-watering.

28. The applicant considers the design of the green roof to be compatible with a heritage conservation area when taken as a whole, noting the diversity of styles, heights and periods that comprises the area.

29. In their evidence, the planning experts agree that compatibility does not mean the same and considered the application of the planning principle found in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 on the site and its surroundings.

30. The physical impact of the proposal is agreed to be found in overlooking and overshadowing. The planning experts agree that the shadow cast by the proposal complies with the relevant controls, and that the primary impact is one of privacy. According to Mr Apps, this is substantially addressed by limiting access to the green roof for the purposes of maintenance.

31. The experts then considered whether the proposal can be said to be in harmony with the buildings around it and the character of the street. Mr Apps agreed with Mr Bradbury for the respondent that there are no green roofs like that proposed by the applicant in the area, but also stated it cannot be said to be incompatible by virtue of being unique.

32. To Mr Apps, the use of blonde face brickwork to match the existing house is appropriate, and in any event will contribute in only a minor way to a boundary wall that is existing, and already shared by No. 63 Campbell Street and the site, and which faces into No.67 Campbell Street, which is already visible from Campbell Street.

33. Ms Newman noted that the existing boundary wall was finished in a light cement ‘bagged’ render coat. By contrast, new works in blonde brickwork would be distinct from the existing finish and the south and east elevation of the new works would be visible from Campbell Street footpath, and appear incongruous.

34. The heritage experts also considered the impact of the proposed works on the view from the public domain. Both experts were of the view that a preferred outcome would be for the existing garage to be left as-is or for a tiled, gabled or hipped roof to be added to the existing garage. In the event that a pitch roof is built over the garage, Mr Martin considered the existing stairs could remain as they would not provide access to anything.

35. The applicant notes the objectives of cl 5.10 of the QLEP are achieved, according to cl 4.3.3 of the QDCP, by maintaining the conservation area's low scale residential character and encouraging the retention or enhancement of the streetscapes.

36. The planning and heritage experts agree that while the proposed works are set back from Meredith Street, and they are largely obscured by the contemporary carport addition in the driveway, the works become visible as you move towards Campbell Street and are visible from the Campbell Street footpath, and Queanbeyan Park beyond.

Findings

37. On the whole, roof top gardens are to be encouraged. They help cool urban centres and mitigate what is known as the ‘urban heat island effect’. They can provide a modest home for native wildlife and can reduce the road miles involved in our food supply chains by encouraging productive gardens that receive sunlight and make the most of what some call a building's fifth elevation, its roof.

38. However, in this matter, height appears the primary issue. The objectives of cl 4.3 of the QLEP and the provisions of section 3A.8 of the QDCP, taken together, seek to moderate the height of buildings so as to complement the streetscape or the historic character of the area in which the buildings are located.

39. Further, section 3A.8 would appear to be doing the work intended for it by moderating the height of the proposed works in this application so as to guard against the adverse amenity impacts that are the subject of the neighbours' submissions.

40. Section 4.15 of the EPA Act requires that I consider, relevantly, the provisions of any environmental planning instrument, any development control plan, the likely impacts of a development including environmental impacts on both the natural and built environments and social and economic impacts in the locality.

41. The objectives of the low density residential zone contained in the QLEP encourages development that considers the low density amenity of existing and future residents.

42. In this case, where the existing garage is already on the boundary with neighbours, the proposal will exceed the height preferred by the QDCP and heritage conservation area. It was noted that this will further elevate the standing height of a person on the proposed green roof by 600mm above the existing level of the concrete slab.

43. This will result in significant and unusual intrusion on the privacy of neighbours whenever the roof is accessed, and for whatever purpose.

44. I also have some sympathy for the respondent's submissions that conditions of consent that would seek to limit access to the roof may be impossible to enforce. The draft conditions of consent, prepared by both parties, would permit continual access to the roof between, say, 7am and 4pm or 8pm (as submissions vary). A reasonable response from anyone found on the roof during those times could well be to state that they are performing maintenance.

45. Subsection 3.43(5) of the EPA Act states that a provision of a development control plan has no effect to the extent that it is inconsistent or incompatible with a provision of an environmental planning instrument.

46. In my view, the objectives of cl 4.3 of the QLEP are consistent with the provisions of section 3A.8 of the QDCP and so should be given weight.

47. I am also required by cl 5.10 of the QLEP to consider the effect of the proposed development on the heritage significance of the heritage conservation area as development consent is required to a building within a heritage conservation area, under cl 5.10(2)(iii), unless that development is exempt development; cl 5.10(3)(d). The proposed development is not exempt and so requires consent.

48. I consider it of some significance that the heritage experts agree that there are preferably outcomes to that proposed by the applicant.

49. No. 63 Campbell Street and No. 2A Meredith Street are clearly a matching pair. They share matching materials, window details, fascia and roof finish. While I accept that there is a vast diversity in the styles and eras represented in the subject heritage conservation area, these two buildings are a distinct couple. Both have had additions that arguably detract from original setting of the homes but these are mostly lightweight and can be easily removed by future owners.

50. In my view, the proposed works do not assist to retain and/or enhance the streetscape in this heritage conservation area. While I acknowledge the evidence of Mr Apps, that the proposed landscape planting would soften the effect of the increased height, I do not accept that it would remove the adverse impact of the increased height and bulk in such a prominent location when viewed from Campbell Street and Queanbeyan Park.

51. Any benefits resulting from the addition of green space in the area are outweighed in my view by the adverse impacts arising from its height and the consequences that flow therefrom.

Orders

52. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA31/2018 for the erection and use of proposed green roof atop the existing garage and associate structures including 600mm high brick planter, concrete staircase, 1000mm high balustrade and gated steel cable and anchor for maintenance at 2A Meredith Street, Queanbeyan is refused.

3. The exhibits are returned except for Exhibits A, B and 8.

…………………………

T Horton

Commissioner of the Court

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Decision last updated: 18 June 2019