Oatley v Manly C

[2004] NSWLEC 290

Land and Environment Court

of New South Wales

CITATION:	Oatley v Manly C [2004] NSWLEC 290
PARTIES:	APPLICANT S D & M E Oatley RESPONDENT Manly C
FILE NUMBER(S):	10122 of 2004
CORAM:	Hussey C
KEY ISSUES:	Building Application :- building alterations - overlooking aural and visual amenity impacts
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	11/05/04, 01/06/04
EX TEMPORE JUDGMENT DATE :	06/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms H Irish, barrister SOLICITORS Whitehead Cooper Williams RESPONDENT Mr W O'Rourke, solicitor SOLCITORS Deacons Graham and James

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10122 of 2004

Hussey C 1 June 2004

Stephen Donald and Megan Elizabeth Oatley
Applicant

v Manly Council
Respondent Judgment

1. This is appeal No. 10122 of 2004, which is against the council’s refusal to issue a building certificate for unauthorised works on a dwelling at 12 Margaret Street, Fairlight.

2. This refusal was based on council’s determination that three aspects of the building did not comply with the development consent and those three aspects are firstly the provision of an upstairs bedroom window and secondly the construction of a large family room window on the lower floor and thirdly the construction of an extra leaf in the terrace doors. I note that there has been a previous s 96 appeal hearing on this matter and that was dismissed.

3. Apparently there has been considerable correspondence between the parties regarding these unauthorised works. However, that has not been taken to the point where council has issued a notice for a demolition on these unauthorised works. In response to the s 96 hearing, the applicant has suggested some modifications to the building in order to keep these unauthorised works but to minimise the amenity impact. I have therefore considered whether the building certificate should be issued on the basis that an order is made to the council to do that. Considering the merits of the proposal, then, the main concerns are visual impacts on the adjoining property No. 10, which is owned by Mrs Green. Also , aural disamenity that may arise from the family room.

4. With respect to the upstairs bedroom window, the primary concern is that this room could be used alternatively for a family room, which would attract more usage and cause more disamenity. However, the applicant accepts that a condition can be imposed which restricts the use of that room to a bedroom as is currently laid out. That seems logical to me considering the position of the en-suite adjacent to it and I accept that is a reasonable condition. On the basis then, that this room is maintained as a bedroom, the extra panel window can remain because I consider that overlooking opportunities from the bedroom is less likely to cause disamenity than that from a family room. However, this is mitigated substantially in my opinion by the offer to put up a fixed metal screen, which has louvres angled to prevent overlooking into Mrs Green’s property. From my understanding Mrs Green’s concern she accepted that this was a reasonable compromise.

5. With respect then to the ground floor window in the family room, the applicant has offered to undertake an alteration of that window and that involves removing the existing lower louvres and installing fixed glass panels, which are frosted to prevent overlooking onto the adjoining property. However, the remaining higher louvre panels can remain to facilitate reasonable air circulation. Whilst this may allow some escape of noise, from my observations on the use of this room and its configuration I think that that would probably only be in exceptional circumstances. Therefore, I consider the alteration for frosting the windows and fixing substantially the lower portions, reasonably addresses the amenity impacts concerns of Mrs Green in terms of overlooking and/or of privacy.

6. The third aspect of the unauthorised works was the additional fourth leaf on the patio doors. I understand that this issue is not pressed by the council and from my observations of the view, I consider that overlooking opportunities, because of the configuration of terraces is restricted and it is mainly for viewing of the harbour, which does not involve any overlooking onto the adjoining property because of its position.

7. In summary then, I consider that there have been significant changes on the two non-complying aspects to address the merit considerations, which were found unsatisfactory in s 96 modification appeal. These additional works act as an impost on the applicant, so that by doing these works I think it results in a reasonable outcome in terms of public and the private interest. Therefore I am going to issue the orders that were presented in draft form as follows:

Court orders
1. The appeal under section 149F of the Environmental Planning and Assessment Act 1979 be upheld.

2. The respondent council is directed to issue a building certificate in respect of:

(a) The first floor window dimensioned at 2.12 in the sketch accompanying the survey report by S McN Bland Pty Limited dated 20 August 2002 which is annexed and marked “A” (“Annexure ‘A’”);

(b) The ground floor window dimensioned at 3.04 in Annexure ‘A’; and

(c) The four panel doors shown in elevation Drawing No. 64 – Diagram C by FMJM Architects dated August 02 which is annexed and marked “B”, all at 12 Margaret Street, Fairlight, within seven (7) days of the applicant satisfying the respondent as to the carrying out of the terms and conditions in Order 3, by certification by FMJM Architects and inspection by the respondent.

3. (a) In respect of the first floor window referred to in Order 2(a), a charcoal powder coated privacy screen comprising vertical 140 mm wide louvres each of which is to be fixed by spot welding at a 45 degree angle with a south-east orientation, is to be bracketed to the window frame, as shown in the diagram dated 20-5-2004 which is annexed and marked “C”;

(b) In respect of the ground floor window referred to in Order 2(b), fixed opaque glass is to be installed in lieu of the lower six (6) louvres in each window section, allowing three (3) openable transparent glass louvres plus a fixed transparent panel at the top of each window section, as shown in Diagrams 1 and 2 by FMJM Architects dated May 04 and “Frameless glazing – Shallow pocket” detail, all of which are annexed and marked “D”;


4. It is a condition of the issue of the Building Certificate referred to in Order 2 that the use of the room which is the site of the first floor window referred to in Order 2(a) is to be maintained as a bedroom.

5. The parties have liberty to apply to restore the proceedings before the Commissioner at 9.30 am on two (2) days’ notice, if necessary to give effect to Order 2.
_________________
R Hussey
Commissioner of the Court
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