Napoli v Byron Shire Council

[2020] NSWLEC 1646

Land and Environment Court

New South Wales

Medium Neutral Citation:

Napoli v Byron Shire Council [2020] NSWLEC 1646

Hearing dates:

30 November 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) Development Control Order 11 dated 7 April 2020 in relation to premises at Lot 20 Sec 9 DP 11632, No. 42 Brandon Street, Suffolk Park and issued pursuant to the provisions of s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 is revoked.

(3)   The exhibits are returned.

Catchwords:

ORDERS – privacy screen/fence

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Swimming Pools Act 1992

Swimming Pools Regulation 2018

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Kaylene Napoli (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
B Napoli (Agent) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/136706

Publication restriction:

No

Judgment

1. COMMISSIONER: Byron Shire Council issued a Development Control Order (Order) under s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 7 April 2020 in relation to a structure erected at 42 Brandon Street, Suffolk Park. Mrs Napoli is appealing the terms of that Order pursuant to the provisions of s 8.18 of that Act, seeking its revocation.

Background

2. On 13 June 2019 the Council granted development consent to development application 10.2019 (the consent) for a rear fence. The purpose of the fence was to provide privacy to the Applicant’s pool and rear entertaining area, in particular from an upper floor bedroom window at the rear of each of the two townhouses to the west of the site. The original consent approved a screen that was to be constructed of four galvanised steel posts against the existing boundary fence with six steel wires running between the posts and covered with a vertical garden. The fence was 9m long and the wire strands would increase the effective height of the fence from 2m to 3.5m.

3. On 8 November 2019, the Council received a s 4.55 application to modify the consent by amending the construction materials and deleting the vertical garden. The amended application proposed to construct the fence using five steel posts with aluminium slats running in a horizontal direction, the slats having dimensions of 2400mm x 65mm x 16mm. There is dispute between the parties as to how many slats would constitute the completed structure. The length of the fence was increased to 10.05m

4. The Council approved the application on 16 December 2019 on the condition that it complied with the approved stamped plans which stipulated, written in red, the following:

1. All posts to be within the property boundary not on top of the existing fence. To be setback a minimum of 500mm from the boundary.

2. Colour of slats to comply with Condition 6.

3. Height reduced from 1.8m to 1.5m about the existing boundary fence.

5. Condition 1 of the consent required the development to be in accordance with the approved plans and Condition 6 required:

“the application for a Construction Certificate to include plans and specifications that indicate the proposed building materials and colours consistent with the provisions of Development Control Plan 2014 – Chapter D2.2.3 – Character and Visual Impact. Please note that colours must be non-reflective earth tone colours and that the use of white and near white colours is not permissible. Such plans and specifications must be approved as part of the Construction Certificate”.

6. On 20 January 2020 the Council received correspondence from the Applicant’s private certifier, Mr John Whyatt, advising a Construction Certificate, 20001/1 had been issued; a Principal Certifying Authority had been appointed and the stamped plans were provided. Those plans included the plans referred to in condition 1 of the modified consent including the notes in red, a fencing quotation that described the size, construction method and spacing of the proposed slats and two additional plans that detailed the footing and post details. Those posts were set into a 1m deep 350mm round concrete footing and were vertical for the first 2m, angled at 60 degrees for a height of 930mm then vertical for the upper 570mm.

7. On 9 March 2020 an officer of the Council inspected the site and identified the following:

1. The fence/screen had been constructed with the posts connected to the rear boundary fence and sloped back so the approved screen area was 550mm from the fence;

2. The structure from the fence backwards had been infilled with slats;

3. The fence colour did not appear to be ‘evening haze’ and was highly reflective; and

4. There were six posts and the area covered was the same width with shorter slats.

8. As the result of the inspection, the Council determined the development was not generally in accordance with the consent.

9. On 16 March 2020, the Council issued the Applicant with a Notice of Proposed Order No 11 pursuant to the EPA Act. On 21 March 2020 the Council received representations from the Applicant in relation to the proposed Order.

10. Following consideration of the representations, the Council issued the Applicant with an Order No 11 on 7 April 2020. The terms of the Order are:

1. Relocate the shade screen to a minimum distance of 500mm from the rear boundary (this would need to be at least 900mm to comply with legislation regarding pool fencing);

2. Comply with consent condition 6 of DA 10.2019.25.2 by ensuring colours are of a non-reflective - earth tone, not white or near white;

3. Comply with the stamped approved plans and reduce the number of slats to 11 x 65mm x 16mm.

11. The reasons given for the Order are:

1. Council granted consent to DA 10.2019.252.1.

2. Consent was then subsequently approved for s 4.55 variation 10.2019.252.2.

3. The screen was then constructed and varies from the consent conditions and approved plans.

4. Council does not believe the current structure is substantially in accordance with Development Consent 10.2019.252.2.

12. The Applicant has appealed the Order and seeks that it be revoked contending that the structure as built accords to the consent and the Construction Certificate.

13. The Council contends that the Court should issue a modified Order in the following terms:

1. Construct the fence a minimum of 900mm from the boundary to comply with the provisions of the Building Code of Australia (BCA) and the Swimming Pools Regulation 2018 (SP Regulation 2018).

2. Reduce the number of slats to 11 x 65mm x 16mm.

14. The Council contends the privacy screen is not constructed in accordance with the consent and should be relocated/reconstructed to comply with the Order. The reasons given are:

1. The screen is development that needs development consent in accordance with s 4.2 of the EPA Act and the R1 Low Density Residential Zone under the Byron Local Environmental Plan 2014 (LEP).

2. The consent (as modified) required the posts of the shade screen to be setback a minimum of 500mm from the boundary however the posts are not constructed a minimum of 500mm from the boundary.

3. The posts should be constructed 900mm from the boundary as the structure must comply with Part 3.10.1.0(a) of the Building Code of Australia (NSW Variation) to comply with the SP Regulation 2018.

4. The consent as modified required 11 slats to be installed, measuring 65mm x 16mm and slats complying with those dimensions have not been installed in accordance with the modified consent.

5. The non-compliance with the consent causes an unacceptable amenity impact on the adjoining neighbours, by creating an imposing structure on top of the boundary, preventing distant views above a traditional boundary fence, and residents have raised concerns that the structural integrity of the structure especially when subjected to high speed winds, is uncertain.

15. The Council does not press that part of the Order that relates to the colour of the fence.

The evidence

16. The hearing commenced on site and included observation of the structure from within the rear yard of the property, No 42 Brandon Street and from within the rear yard of one objector’s property. The issues raised by the objectors to the proposal were the bulk, scale and imposing impact of the structure which is out of character with the area, noise from the structure, concerns about the structural integrity and potential impact on the boundary fence due to the bolts used to attach the posts to it, loss of property values, overshadowing, loss of amenity and the screen is not needed due to the privacy screens attached to the bedroom windows of both properties. They also contend the boundary fence should be a maximum height of 1.8m and, as constructed, is non-compliant with the requirements for a swimming pool enclosure.

17. Expert evidence was heard from Mr John Whyatt, an Accredited Building Surveyor and Builder, for the applicant and Mr Dylan Johnstone, a town planner, for the Council.

18. Mr Whyatt had issued the Construction Certificate (CC) for the fence. It is common ground that the fence is consistent with the details shown on the two plans and specification that supplemented the approved consent plans and formed the plans that were part of the CC.

19. The experts agree that consent is required to erect the structure the subject of the Order and, having regard to the provisions of SP Regulation 2018, it should be 900mm off the boundary if not forming part of the boundary fence. They also agree that the height of the original boundary fence is 1.96m above the paving of the applicant’s site and the top of the retained garden bed on the properties owned by the objector.

20. Mr Johnstone says, in relation to the setback, the key word is minimum. The intent of having the posts setback a minimum 500mm from the boundary is to offset the height and shadow impacts on adjoining properties and allows for the structure to be located 900mm from the rear fence to comply with the pool fencing requirements. He considers the onus is on the developer to ensure the structure complies with both requirements.

21. Mr Whyatt says the structure as it stands on the site is built in accordance with the plans that form the CC. Those plans are consistent with the development consent and in fact, provide for a further setback of the top element from the boundary than the minimum required by the Council as there is a 550mm setback and therefore less overshadowing than would occur if the top of the structure was 500mm from the boundary as was required by the Council to address overshadowing of the properties to the west of the site. The posts are not constructed on top of the fence and therefore comply with the terms of the consent.

22. Mr Johnstone says there is adequate room to relocate the structure 900mm from the boundary so as to comply with the provisions of SP Regulation 2018 as there is approximately 3.4m from the existing rear boundary fence to the water’s edge of the existing swimming pool.

23. Mr Whyatt says the structure becomes the swimming pool fence as it is located on the boundary. The distance between each slat on the screen, as constructed, is a maximum 5mm so that the structure is not deemed to be a climbable object allowing access to the pool. A boundary fence that is also a swimming pool fence must be a minimum of 1.8m high above the finished ground level and the structure complies with this requirement.

24. Mr Johnstone acknowledges the plan approved in the consent was marked by the applicant as being not to scale however, the plan also indicates 11 horizontal slats measuring 2.4m long x 65mm high x 16mm thickness over a vertical distance of 1.5m. Eleven of those slats equates to a total dimension of 0.715m leaving 785mm of gaps between the slats. He concludes that each gap between the slats would be 78.55mm. He says the shade screen has been constructed with approximately 25 to 30 horizontal slats with a 5mm gap between each slat and therefore is not compliant with the approved consent plan.

25. Mr Whyatt says the original plan was sketched indicating a height of 1.8m above the existing two metre timber fence. Upon assessment of the application Council determined that the proposed 1.8 metre height must be reduced to 1.5m. This is reflected on the approved plans showing 1800 crossed out in red and replaced by notation of 1500 in red. That would have a subsequent reduction in the number of slats to be installed. He says not all slats were physically drawn on the plans as measurements and gap sizes were not provided for the slats, the drawing of slats was just indicative of what was proposed. The CC plans show the six posts with angle braces on the top of the slats, with slats 65mm x 16mm with a 5mm gap. He says there is no specific Council condition of consent regarding the number of slats or gap sizes in between. The 5mm distance between slats as noted in the comments above was interpreted as meeting the requirements for swimming pool fencing using his discretion as the certifier. The first Order issued following an inspection by Council did not include reducing the number of slats, thereby granting approval of the slats constructed.

26. Mr Johnston says the amenity impacts on the adjoining neighbour to the west would be significantly reduced by relocating the structure 900mm from the existing rear fence through reducing the sense of imposition of the structure and increasing the distant views above the boundary fence. He is unable to comment on the structural integrity of defence.

27. Mr Whyatt says the structure is not any more imposing than the dual occupancy development on the land immediately adjoining to the west and does not obstruct any significant views of the ocean or hinterland, only views into the pool area in question. The posts for this structure have been embedded in the ground with pier holes measuring a minimum of 1m deep and 350mm wide and encased in concrete. The posts have been bolted into the timber fence which gives added structural integrity to both the fence and the screen but particularly the fence. The screen will remain structurally sound even as the timber fence naturally deteriorates overtime.

Conclusion and findings

28. Having regard to the evidence I find that the fence as erected on the site has been constructed in accordance with the approved construction certificate plans. For that reason, the Order should be revoked.

29. That is because at the time the consent was issued, that is on 13 June 2019, the provisions of cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) required that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under cl 140) are not inconsistent with the development consent. The evidence of Mr Whyatt is unchallenged with the Council not contesting the validity of the CC. Current provisions require consistency with the development consent however that was not required at the time the CC was issued.

30. The terms of s 4.16(12) of the EPA Act are unchanged and are in the following form:

(12) Effect of issuing construction certificate

If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

31. Accordingly, the plans approved as part of the construction certificate form part of the relevant development consent. I accept the evidence of Mr Whyatt that the plans referenced in the joint report showing the slats are not to scale and accept the concession made by Mr Johnstone that there is a problem with the scale of that plan in being certain of the gap when compared to the width of the slat.

32. It is apparent, when granting the original consent, that the Council did not have any regard to the provisions of the Swimming Pools Act 1992 and SP Regulation 2018 and therefore, I do not accept that the word “minimum” should have been interpreted to require the fence to be erected 900mm off the boundary. It is clear from the wording of the amendments made on the plans that the intent of the council was that the structure the offset 500mm from the rear boundary of the site and whilst the whole of the structure is not set back that distance, I agree with the evidence of Mr Whyatt that the structure as built would not have any greater impact on overshadowing of properties to the west than if the structure was built in the approved location. I also accept his uncontradicted evidence that the fence would comply with the provisions of SP Regulation 2018.

33. Whilst I understand the concerns of the objectors in relation to the height, scale and bulk of the structure itself, it is consistent with that approved by the Council. My role in this appeal is not to assess the merits of the structure.

34. Mr Whyatt’s evidence is that the structure is constructed to comply with the provisions of the BCA and the Council did not provide any evidence to the contrary.

35. For these reasons, I make the following Orders:

1. The appeal is upheld.

2. Development Control Order 11 dated 7 April 2020 in relation to premises at Lot 20 Sec 9 DP 11632, No. 42 Brandon Street, Suffolk Park and issued pursuant to the provisions of s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 is revoked.

3. The exhibits are returned.

…………………………..

Sue Morris

Acting Commissioner of the Court

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Decision last updated: 15 December 2020