Patterson v Redland Shire Council and Anderson
[2002] QPEC 68
•25 October 2002
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Patterson v Redland Shire Council and Anderson [2002] QPEC 068
PARTIES:
Jonathan Stuart Patterson & Jessica Ann Patterson
Applicant
v
Redland Shire Council
First Respondent
And
Neville Mark Anderson and Jane Ellen Anderson Second RespondentFILE NO/S:
4169 of 1999
DIVISION:
Brisbane Registry
PROCEEDING:
Application for Declaratory Relief and Consequential Orders
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
October 2002
DELIVERED AT:
Brisbane
HEARING DATE:
26, 27, 28, 29, 30 August 2002
JUDGE:
G.T. Britton S.C., D.C.J.
ORDER:
Application dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – Council consent and approval – application that use of land is contrary to Redlands Shire Town Planning Scheme and unlawful - development offence – issues in the appeal include – building heights, roof colouring, building site cover, height of habitable floors
Integrated Planning Act 1997, s. 4.1.21, 4.3.22 to 4.3.26
COUNSEL:
Applicants in person
S. Ure for First Respondent
R. Litster for Second Respondent
SOLICITORS:
King & Co for First Respondent
Phillips Fox for Second Respondent
This is an application by Jonathan Stuart Patterson and Jessica Ann Patterson (“the Applicants”) for the following declarations and orders:
(a) A declaration that the use of land situated in the Redland Shire being the land described as Lot 301 on RP 892498 County Stanley Parish of Stradbroke and located at Lot 4A Roseby Court, Point Lookout in the State of Queensland for the purpose of certain development: namely the erection of a two-storey dwelling is:-
(i) Contrary to the provisions and requirements of the Redland Shire Town Planning Scheme; and
(ii) Unlawful;
(b) An order that the said use should stop forthwith;
(c) A further declaration that approval by the Redland Shire Council of notification of development application No. ND57 for the establishment of a single family dwelling at 4A Roseby Court Point Lookout on the 3rd of March 1997 is void and of no effect;
(d) A further declaration that if the approval of notification of development application No. ND57 is lawful that the dwelling house presently constructed on Lot 301 on RP 892498 does not comply with the conditions of approval and is unlawful;
(e) An order that non-compliance with the conditions of approval be rectified;
(f) Costs.
The hearing which took place over five days commencing on the 26th of August 2002 was conducted on behalf of the Applicants by the Applicant Jonathan Stuart Patterson. The First Respondent, the Redland Shire Council (“the First Respondent”) and the Second Respondents, Neville Mark Anderson and Jane Ellen Anderson (“the Second Respondents”) were both represented by counsel.
The Declarations sought in paragraphs (a), (c) and (d) of the application are for relief pursuant to s. 4.1.21 of the Integrated Planning Act 1997 (“the Act”).
The orders sought by paragraphs (b) and (e) of the Application are for relief pursuant to s. 4.3.22 of the Act (although the Applicants initially and in their submissions claimed the relief pursuant to s. 4.1.22 of the Act (notwithstanding that neither the Application itself nor the points of claim filed on behalf of the Applicants identified the basis of the jurisdiction of the court to grant any of the relief sought)). However, in paragraph 25 of their written submissions the Applicants accepted the accuracy of what is said in paragraphs 1-8 of the submissions of the First Respondent which include in paragraph 3, that paragraphs (b) and (e) of the Application sought enforcement orders pursuant to s. 4.3.22 of the Act. Further, the Applicants have accepted the submission of the Second Respondents that the orders claimed in paragraphs (b) and (e) of the Application are not properly understood as “orders about declarations” but might instead be characterised as “enforcement orders” of the character contemplated by ss. 4.3.22, 4.3.25 and 4.3.26 of the Act.
The only development offence alleged is a contravention of a development approval contrary to s.4.3.3 (Applicant’s points of claim paragraph 55).
It was submitted on behalf of the Second Respondents that for the Court to make orders under s. 4.3.22 a development offence should be proved beyond reasonable doubt and reliance was placed on the decision of Newton DCJ in Gold Coast City Council v California Court Pty Ltd (2000) QPELR 25 at 31D. This proposition was not challenged by the Applicants and indeed in their written submissions they accepted the accuracy of it (paragraph 7). It seems to me that there is no reason why I should not accept that the appropriate standard of the proof is the criminal standard where what is in issue is a development offence.
Clearly the onus of proof rests on the Applicants in respect of all matters in issue.
At the hearing the Applicants informed the Court that the only consequential orders they were seeking were that the roof line of the Second Respondent’s dwelling be altered (for example by changing the roof from its existing skillion design to that of a gable design as per exhibit 42) and that the roof be painted in a darker colour to alleviate the problem of glare which the Second Respondents complain of.
The issues in the Appeal then devolved into the following categories:
(i) the height of the building;
(ii) the height of the habitable floors of the building;
(iii) the colour of the roof;
(iv) the building site cover.
That these were the issues dealt with on the appeal is accepted by the Applicants in their written submissions (paragraph 25).
The Applicants are the owners of Lot 25 situated at 33 Cumming Parade, Point Lookout.
The Second Respondents are the owners of Lot 301 situated at 4A Roseby Court, Point Lookout.
The Second Respondents’ property is in a cul-de-sac on the northern side of Cumming Parade.
The Applicants’ property at 33 Cumming Parade, adjoins the Second Respondents’ property being located to the south of it. The Applicants’ property overlooks the Second Respondents’ property.
Both properties are included in the existing Island Residential Precinct No.4 in the First Respondent’s “Development Control Plan 3 – Point Lookout” (“DCP 3”).
The structure upon the Second Respondents’ property is a two-storeyed three bedroom dwelling with a series of sloping roofs.
The Applicant’s property has erected upon it a dwelling house with views to the north over the Second Respondents’ property and in particular, in part over the uppermost roof of the Second Respondents’ house.
A chronology of events is attachment 4 in exhibit 1. Significant events for the purposes of this Application are as follows:
29 January 1997 Application for Notification of Conditions to Council;
3 March 1997 Report to technical assessment group;
10 March 1997 Approval for notification of conditions issued under delegated authority.
7 May 1997 Building application lodged.
12 May 1997 Building certifier check list processed and signed.
12 May 1997 Building approval issued.
10 July 1997 Building inspection (set out and frame) not conducted, as assigned officer unable to attend and matter of inspection deferred to structural frame inspection.
30 September 1997 Building inspection (structural frame)
3 December 1997 Letter to Redland Shire Council CEO from Applicants – concerns with roof colour, filling of land, building height, and roof top structures – conformity with DCP3.
17 December 1997 Facsimile from Whybird Farr Engineers to Council certifying the structural elements as shown on drawing No. S97.041 SO1 and S02.
2 May 1998 Facsimile to Redland Shire Council from Cottee Parker Architects Pty Ltd attaching a letter of 28 April 1998 being certification of height of dwelling house – East Coast Surveys, Mr Cliff Brain certifying that roof apex is 8.45 metres above natural ground at its highest point.
20 February 1998 Letter from Redland Shire Council to Cottee Parker Architects Pty Ltd – site inspection results – notification of development approval conditions of issue – require actions within fourteen days of letter for survey certification, change roof colour to conform with DCP3 information sheet that, storm water drainage issues, revegetation plan required.
23 March 1998 Letter from Cottee Parker Architects Pty Ltd to Redland Shire Council advising the extent of site works for cut and fill, building heights, roof colours, as well as storm water drainage and that there is no reason for the final building certificate to be withheld by Council.
20 August 1998 Note to file from council surveyor Paul Powell as to telephone conversation with Cliff Brain, surveyor engaged by Anderson.
31 August 1998 File note of senior development engineer Matthew Beggs advising of his discussions with surveyor Cliff Brain and that he is satisfied that the certificate is adequate for the purposes of determining the house is 8.5 metres above the natural surface.
22 September 1998 Building inspection (statement of substantial completion) and noted as complete.
13 May 2002 Letter from East Coast Surveys Pty Ltd advising that the certificate issued on 28 April 1998 was incorrect in terms of lot reference in the title and that it is superseded by this certificate.
On the second day of the hearing I undertook an inspection of both the Applicants’ property and the Second Respondents’ property in the company of the Applicants and counsel for each of the Respondents.
It is obvious from the way in which this matter has been conducted by the Applicants that consequent upon the construction of the Second Respondents’ house they have been concerned about two things. Firstly, before the construction of the Second Respondents’ house, the Applicants enjoyed a panoramic view from the northern part of their property, and in particular from the verandah at the northern side of the house which was completely unimpeded by any structure although it was apparently what Mr Patterson described as a “filtered view” meaning that there was vegetation in the foreground of the view which was enjoyed from the Applicants’ property but the uppermost roof of the Second Respondent’s house now partly obstructs that view. Secondly, they have been upset by the fact that they have experienced glare at certain times from the uppermost roof of the Second Respondents’ house.
Attempts have been made by the Second Respondents to alleviate any problem experienced by the Applicants so far as the creation of glare by the uppermost roof of their house is concerned. They have on two occasions repainted the roof, each time in a darker colour. It is submitted on behalf of the Second
Respondents and I accept that the attempts by the Second Respondents to placate the Applicants by twice repainting the roof in darker colours should not be construed as any admission that they have committed a development offence.
There is of course no common law right to have a view preserved (see for example Cromar Pty Ltd and Cronin v Brisbane City Council and Anor (1996) QPLR 84 (and the cases referred to therein). Further, in Rogerson v Nanango Shire Council Appeal 3443 of 2001 unreported, Quirk DCJ 19 March 2002 paragraph 7:
“… there is no common law right to a view. If the Appellant’s right to use his land in a preferred manner is to be restricted in the process of development approval, justification for any such constraint must be found in the formal planning instruments.”
I propose to deal with each of the issues into which the Appeal devolved as has been accepted by the Applicants and for the sake of convenience I will deal with them in the order in which they appear in the submissions of the First Respondent.
The Height of the Building
The Applicants’ case was totally founded on an acceptance of the accuracy of a survey conducted in 1994 by Mr Caddey (“the Caddey survey”) which was Exhibit 8. This proposition was accepted by the Applicants in their written submissions (paragraph 25).
Paragraph 4.4.3 of DCP3 provides as follows:
“Height limit
Purpose of the control
· To prevent buildings dominating the natural landscape;
· To protect views of neighbouring properties.
Control
·Building height at any point is limited to 8.5m above natural ground level with the floor level of the uppermost habitable level not more than 5.1m above natural ground level at any point. Roofs or pergolas covering decks are permitted to extend to 9.5m above natural ground level where not exceeding 10m² in area for each detached building. Any structure above the 8.5m height limit shall be unenclosed on its sides. …”
In paragraph 2 of DCP3 “natural ground level” is defined as follows:
“Natural ground level is:
(a) In a case where the excavation has taken place on land or where any material or substance has been deposited on land, the ground level or probable ground level had that excavation or deposition not taken place.
(b) In any other case, the level existing at the appointed day.”
Paragraph 2 of DCP3 also defines “appointed day” as follows:
“The day upon which the Development Control Plan No. 3 – Point Lookout is approved by the Governor in Council by publication of such notification in the Gazette.”
According to the DCP3, exhibit 5, the date of Gazettal was 9 February 1996.
Mr Caddey gave evidence. He said that he had no doubts about the accuracy of the plan he prepared in 1994 (Exhibit 8) (T79/5-19, T84/30-40). He stated that the half metre interval contour lines which he interpolated would be within an accuracy of plus or minus 200 millimetres but generally should be better than that (T79/20–35, T92/10 –16). He was unable to locate his field notes. He said that the driveway on the land of the Second Respondents had not been cut in at the time he prepared his 1994 survey (T82/10 –14) and he estimated that 50-70 cubic metres of sand had been removed or moved to make the cut (T82/39–45). However, he agreed under cross-examination that he had signed off on the plan on 28 March 1995 and at that time the concrete driveway had been installed and that he had in fact put some marks into it. However, he said he did not do any levels (T89/40–60). This alone seems to me to throw some doubt upon the accuracy of Mr Caddey’s plan.
Mr Caddey acknowledged that the purpose of his plan was for an application for rezoning and reconfiguration of the parent parcel of the lot. He however did not seem to accept that because this was the purpose for preparation of the plan it would be any less accurate than if its purpose was to locate a house (T84/30–40). Mr Caddey conceded that he could not give evidence as to what the levels were on 9 February 1996 (T91/58). Two other surveyors, Mr Egerton and Mr Hargrave gave evidence. I accept Mr Egerton’s evidence that because the Caddey survey was prepared for an application for rezoning and reconfiguration an accuracy of plus or minus one metre would have been more than sufficient and that despite Mr Caddey’s evidence he would not have needed to achieve an accuracy of plus or minus 200mm. There is no evidence as to the number of levels Mr Caddey utilised. I rely also on the evidence of Mr Hargrave who said that having regard to the purpose for which Mr Caddey did his survey he would have difficulty in placing too much confidence in it. (T382/55-T383/45).
Mr Egerton was called by the Applicants. Mr Hargrave was called by the Second Respondents. It is unnecessary to canvass in detail the evidence of these two surveyors. They had both visited the site and surveyed the ground levels and the building height before they had a meeting on the site at 4A Roseby Court, on 10 March 2000 following which they prepared a record of meeting which was Exhibit 47. There was a difference between Egerton and Hargrave in their measurements of the height of the apex of the roof and they agreed that the difference in the observed level of the building was most likely explained by the different methods of survey and to differences in the location of the points surveyed. They both considered it would be appropriate to average the results to give a reduced level of the average height of the roof of RL55.11 metres.
According to the Caddey survey, the land below the peak ridge line of the roof varied between RL46 and RL46.4. This would give a building height on the Applicants’ case ranging between 8.71 metres and 9.11 metres resulting in an exceedance of between 0.21 metres and 0.61 metres in the height of the building above 8.5 metres as provided by DCP3 if the Caddey plan is correct.
As the First Respondent has submitted, it is fundamental to the Applicant’s case that the subject land must have been filled. If it were not, the Caddey survey was demonstrably wrong. Mr Egerton was of the view that there would have to have been at least between 80 and 100 cubic metres of fill deposited on the land to account for the difference between the Caddey survey and the levels that he observed on the subject site when he carried out his survey (T277/40 –T278/10).
The evidence of Mr Cavanough who was the builder who constructed the house for the Second Respondents was that he brought six cubic metres of sand onto the site to enable a platform to be constructed north of the concrete driveway for a crane to be located (T49/10–30). The platform is still in position. Mr Cavanough also gave evidence that when constructing the foundations of the house, benches were excavated and the material excavated was pushed down the bottom of the hill within the property and then pulled back up underneath the house around the concrete columns but was not restored to any particular level (T49/30-60). He said that no fill was imported onto the site other than the six cubic metres (T48/28). Mr Cavanough also gave evidence that the amount of material moved in the benching exercise - about 5 metres of material was moved but he did not give any evidence as to how much material was moved in relation to the other two levels. However, the three benches are depicted on a photograph Exhibit 26. Mr Cavanough in consultation with the Second Respondents raised the height of the building by .45 of a metre. This was to overcome a difficulty with the steepness of the driveway which was to be constructed. He was conscious however, that the height of the building could not exceed 8.5 metres above ground level. He said that he established ground level after digging out the benches (T63/30–50).
Mr Egerton’s evidence is based on the premise that he had no reason to believe that the Caddey survey was not accurate (T267/15). However, he acknowledged that he had not had the opportunity of looking at any source data (T268/1).
In the record of meeting (Exhibit 47) it is stated that Mr Egerton compared his field observations with the levels shown on the Caddey plan. It was said that underneath the dwelling the observed contour levels tended to be higher by up to 780 millimetres and because of this difference Mr Egerton considered that fill material had been placed underneath the existing dwelling since the time of the Caddey survey. Accordingly the certificate supplied by Mr Egerton dated 2 March 1999 was based on ground levels determined by reference to the Caddey plan rather than by the observed current site levels. In exhibit 47 it was stated that surveyor Hargrave tabled Plan 4801-1-B being a summary of the field survey and calculations on 6 November 1999 (see Exhibit GLH3 to the affidavit of Garry Lloyd Hargrave filed 1 August 2002, - Exhibit 66). On this plan the ground level contours were interpolated between the apex of the small ridges existing under the house which I understand to be the ridges created by the excavation of the benches. Mr Egerton’s calculations based on the contours from the Caddey plan gives a range of surface level underneath the highest point of the building between RL46.0 metres and RL46.4 metres and the height of the building above this calculated surface level therefore ranged between 8.71 metres and 9.11 metres. Mr Hargrave’s calculations based on interpolation between the apexes of the small ridges underneath the house gives a range in surface level of 46.6 metres to 46.9 metres and a height of the roof apex above surface level of between 8.21 metres and 8.51 metres. According to Exhibit 47 both surveyors considered their work to be consistent and there was no dispute as to the results of each surveyor’s survey. The difference in the determination of the height of the dwelling was due to the different interpretation of the status of the surface levels underneath the house. Mr Egerton considered the material underneath the house to be fill material due to a difference in contour levels between his survey and the Paul Caddey survey from September 1994. Mr Hargrave considered the material underneath the dwelling to be natural due to the presence of imbedded vegetative matter and stratification of different sand layers in the banks. Both surveyors considered they were not appropriately qualified to be able to determine the status of the soil existing underneath the dwelling.
Evidence was given by Mr Bowler of his Geo-technical survey. His report is Exhibit 68. The conclusion was reached by Mr Bowler that the soil profile at the location investigated beneath the subject residence was a natural dune sand profile and had not been filled. I see no reason not to accept the evidence of Mr Bowler as contained in his report and as given orally. The evidence of Bowler was uncontradicted. I accept the evidence of Hargrave and find it supported by the evidence of Bowler and Cavanough (in relation to his excavation of benches) and the photograph, exhibit 26. There was no evidence adduced by the Applicants of any fill being brought on to the site other than the six cubic metres mentioned by Mr Cavanough. I accept the evidence of Mr Cavanough. As to Mr Caddey’s evidence, I found him to be an unconvincing witness. He had been unable to locate his field notes. I was not impressed by his unwillingness to concede that the accuracy of his contour lines may have been less than he contended particularly in the light of the purpose for which the plan was prepared and in the light of the evidence of Mr Egerton as to accuracy of plus or minus one metre being more than sufficient. In the circumstances I have reached the conclusion that there has been no filling of the land beneath the house. In those circumstances, and having regard to the evidence of Mr Egerton and Mr Hargrave I find that the Caddey Plan was not accurate. In all of the circumstances therefore I find that the maximum height of the roof does not exceed 8.5 metres being the criterion provided for in DCP3, paragraph 4.4.3. My finding that the maximum height of the roof of the building as constructed does not exceed 8.5 metres above natural ground level is made on the basis that the land was not filled and that the natural ground level is as determined by the surveyor Mr Hargrave.) Clearly therefore the Applicants have failed to prove the commission of a development offence in so far as the maximum height above natural ground level is concerned.
Height of Internal floors
Although this was an issue at the hearing, the Applicants have made it clear that they seek no relief with respect to these matters. It therefore appears to me to be unnecessary to make any findings in relation to them.
Nevertheless, it seems to me that in relation to this issue the Applicants’ case again depends upon a finding as to the accuracy of the Caddey survey. I have already concluded that it was not accurate.
Even if the Caddey survey were accurate, the exceedance so far as the height of the lower level floor is concerned is of no practical significance. I accept the submission on behalf of the Second Respondents that were that part of the balcony which is more than three metres above ground level to be removed (on the assumption that it is more than three metres above ground level) there would be no effect on the balance of the structure and the removal would not be perceptible from the Applicants’ property.
In those circumstances, were it to be found that there was an exceedance of the height above natural ground level and therefore that the house does not comply with the conditions of approval (and I do not make such a finding) it would be necessary for me to consider whether or not in the exercise of my discretion I should make an Enforcement Order under s. 4.3.22 of the Act. It is clear that the Court does have a discretion in the matter (NRMCA v Andrew (1992) 75 LGRA64) and in the exercise of my discretion I would decline relief on the grounds that the removal of the part of the balcony which constitutes the exceedance would have no effect on the balance of the structure and would not be perceptible from the Applicant’s dwelling and there is no other person complaining about it.
There is also a question of construction which in the circumstances I find it unnecessary to consider as to the meaning of “habitable level” that is, as to whether the deck is part of the first habitable level or whether instead the proper point for measurement is the point at which the floor of the lowest habitable space is highest above natural ground level.
The Colour of the Roof
The planning approval (Exhibit 1, Attachment 1) specified the nature of the roofing material to be used on the house by requiring development in accordance with “the details set out in the application including the details indicated on submitted site plan and section job No. 1393, sheet No. SKO1, issue A and elevation plan job No. 1393, sheet No. SK02, issue A (Exhibit 7) which specified “Colorbond”.
Paragraph 4.4.7 of DCP3 provides:
“Colours
Purpose of control·To prevent roof colours which are reflective, glare producing and visually obstructive.
Control
·Roofs are to be of a material and colour which in the opinion of Council is not reflective, glare producing, or visually obtrusive”.
Although there is a document described as “Information Sheet 1 – Suggested roofing colours – Point Lookout” which is bound up in the Development Control Plan 3 which forms exhibit 5, the evidence is that no such document has actually been included formally as part of the DCP (Edmonds T349/20). The evidence of Mr Cottee, the architect who designed the house was that the Development Control Plan that he had at the time when he designed the house, did not have included in it such a document. He subsequently became aware that there was a colour chart for houses to be built at Point Lookout when he received a letter from the Council with one attached. That was a letter dated 20 February 1998. There is a copy of it at page 21 of exhibit 6. (T226/30 – T227/8).
Mr Cottee said that he had made enquiries with the Redland Shire Council who told him that the roofing material had to be colorbond and could not be zincalume which was considered to be reflective. He said that the colorbond (off-white) was chosen because of the colour scheme of the building, of a sort of darkish blue with a white trim. He said he considered it to be a lot less glare producing and intrusive that zincalume and that there was a number of examples of houses at Point Lookout that had colorbond (off-white) (T194/20 –40).
The evidence was that a large number of houses at Point Lookout and in the immediate vicinity of the properties of the Applicants and the Second Respondents have off-white roofs (see also exhibits 50A and 50B).
Since the house was constructed and since the Application was filed, the roof has been repainted twice; firstly, in “gull-grey” and second, in “water-worn”. Exhibit 39 is a piece of sheet metal which has been painted with the three colours which the roof has been, namely off-white, gull-grey and water-worn.
The plans WD01 – WD06 submitted with the building application (exhibit 23) showed the roofing material as “off-white colorbond”. This application was approved by the First Respondent.
The planning approval provided:
“The development shall be carried out in accordance with the details set out in the application including the details indicated on submitted site plan and section job No. 1393, sheet No. SK01, issue A, and elevation plan job No. 1393, sheet No. SK02, issue A, prepared by Cottey Parker Architects received by counsel on 14/2/97 unless otherwise required or agreed in writing by the counsel or a delegated officer …”
I accept the submission by the Second Respondents that the words “in accordance with” used in the Planning Approval, should be interpreted as meaning “generally in accordance with”. See Jefflane Pty Ltd v Brisbane City Council (2002) QPEC0405 at paragraphs 10-13; Pine Mountain Court v Valente (2000) QPELR 265.
I accept also the proposition that emerges from the evidence of Dr Cowling and Mr Winders that any roofing material of whatever colour will be to some extent reflective, glare producing and obtrusive.
The Applicants called Dr Cowling whose expertise was not the subject of any challenge. Dr Cowling’s reports are exhibits 14, 15 and 16. Dr Cowling is the director of the photometric laboratory at the Queensland University of Technology. His qualifications are set out in the curriculum vitae forming part of exhibit 14. Dr Cowling’s first report was prepared at a time when the roof was still painted in its original colour of off-white. Although I have read fully each of Dr Cowling’s reports and have carefully considered his evidence, it is sufficient for present purposes to refer merely to the synopsis contained in the front of each of the reports. In exhibit 14, it is stated that on the date of inspection, namely 15 May 1999, measurements indicated that for at least two hours on that morning between 8:30 a.m. and 12:30 p.m. glare index values were obtained that were classified as intolerable.
Exhibit 15 was prepared by Dr Cowling after the roof had been painted gull-grey. In the synopsis Dr Cowling says that follow-up luminance measurements and analysis of glare were made from the same location as on the previous occasion on Saturday 28 April 2001 and the results indicated that although there had been a small reduction in reflected glare from the roof, reflected sunlight still produced an effect that according to two different glare index formulae was still classified as intolerable.
Dr Cowling’s third report, exhibit 16, was prepared after the roof had been repainted for a second time in early 2002, that is, when it was painted “water-worn”. Inspection was carried out on 10 June 2002 and the synopsis says that the results indicated that there had been a reduction in the brightness of the roof but that glare index calculations still indicated that reflected sunlight produced an effect ranging from uncomfortable to intolerable.
On behalf of the Second Respondents, a report was prepared by Mr Winders, an engineer. In evidence the Applicants did not challenge the expertise of Mr Winders to give evidence in relation to this issue but have sought to challenge his expertise in their written submissions. As no challenge was made to his expertise in evidence, it is difficult to give any weight to the submissions made by the Applicants on this point. I note that Mr Winders’ qualifications and experience are set out in his curriculum vitae which forms part of his report which is exhibit 54. He appears to have a mechanical engineering background but professes technical expertise in “lighting impact assessment”. I accept that he is qualified to give expert opinion in relation to this matter.
It is obvious from the evidence of both Dr Cowling and Mr Winders that the measurement of “glare” is not an easy matter. The approaches used by the two experts were different and the instruments used by them were different.
Dr Cowling’s approach was based upon the extrapolation of formulae which apply in interior situations where the glare generated by a luminaire or a window is measured. He sought to exclude the glariest part of the sea from any “averaging” of background levels of luminance. It is submitted that thus there is the prospect of skewed results which do not properly take into account all observable conditions within the environment in which the relevant source of glare is found.
Mr Winders concluded that Dr Cowling’s interpretation of the outdoor measurements of luminance taken on the first two occasions should not be interpreted in the same manner as might be used to evaluate discomfort glare indoors from fixed light fittings and or windows. He went on to say that if the indoor relationship measurements could be extrapolated for appropriate outdoor context then reflection of sunlight from the roof in its current condition should not be sufficient to cause the borderline between comfort and discomfort or other recognised indices of discomfort glare to be exceeded. He said that after consideration of light reflectance values of the original roof and subsequent paint supplied to it in response to the Applicants’ complaints, he considered that the paint which had been lastly applied had sufficiently lower reflectance to meet any reasonable criterion. To further reduce the amount of reflected light by applying a paint of even lower reflectance would not only have limited visual effect but would incur either reduced thermal comfort inside the Second Respondents’ house or would require more energy for compensatory heating or cooling.
Dr Cowling agreed that to apply an even darker paint could have an adverse impact on the thermal comfort inside the Second Respondents’ house.
It seems to me that the experience of comfort or discomfort produced by the reflectance of light from a roof is to a large extent a subjective matter. Both Dr Cowling and Mr Winders agreed with such a proposition.
Although I had the opportunity of having an inspection of both properties and of observing the roof of the Second Respondents’ house at a time when the sun was not obscured by cloud, the inspection is not evidence per se. It does however, provide me with an opportunity to understand the evidence of Dr Cowling, Mr Winders and also Mr Edmonds who was present during my inspection. Mr Edmonds’s evidence was that the inspection which I had took place between 10:30 a.m. and 11:15 a.m. on the second day of the trial. He said that he observed the roof of the Second Respondents’ house from the verandah of the Applicants’ house and was not wearing sunglasses at times when the sun was not obscured by clouds and he experienced no discomfort. I accept that evidence. That evidence is consistent with the evidence of Mr Winders at the times that he attended upon the house.
I am not prepared to accept the evidence of Dr Cowling that the level of glare produced by the reflection of sunlight from the roof of the house is such as to be in contravention of paragraph 4.4.7 of the DCP3. I prefer the evidence of Mr Winders. I was not persuaded that the methodology employed by Dr Cowling could be extrapolated to an external situation. I accept the Second respondent’s submission that the glare index which Dr Cowling would have expected could have been calculated at the time of my site inspection and which he said would have been classified as uncomfortable bordering on intolerable does not sit comfortably with the evidence of Mr Edmonds (T128/1-8) (which I have accepted). I am therefore not satisfied that a Development Offence has been committed. This would be so whether or not the criminal standard of proof is applicable.
Of course it may be that before the roof was painted its present colour, my finding may have been different. Nevertheless having been painted a darker colour, namely “water-worn” it was observed by both Mr Winders and Dr Cowling as well as Mr Edmonds and as I say I am not satisfied that there is any contravention of the requirement of the DCP3.
Even if I were satisfied that the roof was still producing glare to such an extent as to be in conflict of 4.4.7 of the DCP3, I would in the exercise of my discretion refuse to make an enforcement order. It seems to me that the steps taken by the Second Respondents to ameliorate any problem which may have existed when the roof was painted lighter colours were all that was reasonably required and that it would be unreasonable to require them to paint the roof an even darker colour with the likely adverse impact upon the thermal comfort of the house. Furthermore, I note the evidence that some vegetation that was growing along the northern boundary of the Applicants’ property and which would have to some extent relieved any problem with glare has been trimmed back, or removed. Any suggestion that the roof should be modified in the way suggested by the Applicants as per exhibits 21 and 42, that is, by the transformation of the existing skillion roof on the Second Respondents’ house into a gable roof thus reducing the area of the roof which would be capable of emitting glare would be so expensive so as to make it unreasonable that any such form of rectification should be required. The evidence of the builder Mr Cavanough was that it would be “a mongrel of a job” and his estimate was that it would cost in the vicinity of $30,000. The estimate of the architect Mr Cottee was that the cost would be significantly higher. In any event, however, in the light of my finding that there has been no contravention of paragraph 4.4.7 of the DCP it is unnecessary for me to consider further the exercise of my discretion to make an enforcement order.
Building site cover
Paragraph 4.4.4 of DCP 3 provides as follows:
“Site Coverage
Purpose of Control
·to prevent buildings dominating the natural landscape;
·to allow for landscaping and to control building massing;
·to maintain natural seepage of water to water table;
·to encourage development of a character sympathetic to the existing Point Lookout Township;
·to maintain solar access and privacy.
Control
·the building site coverage is not to exceed 30% of site area. Refer diagrams 4.1f and 4.1g
·site coverage limits may be achieved by the construction of more than one detached building.
·the site coverage of any single detached building is not to exceed 150 m² when the building height is not more than 4.5m above natural ground level, 140 m² when the building height is over 4.5m above natural ground level
·garages and carports shall be taken into account when calculating the percentage of the site covered by buildings.”
The applicant’s case is that the site cover shown on Exhibit 23 is 148m² i.e. 8m² more than the maximum permitted site cover prescribed in paragraph 4.4.4.
The evidence as to the actual site cover is conflicting.
The term “site coverage” is defined in Clause 2 of the DCP and included in this definition are provisions that certain parts of a building shall not be included in the site coverage measurement.
Ross Edmonds in his Statement of Evidence (Exhibit 1) at p. 19 had concluded that there was a marginal level of exceedance of approximately 8 m² making the site coverage 148m² approximately. He said that this figure was determined having regard to what he considered was appropriate to fully exclude from site coverage calculations as set out in the DCP 3 definition of site cover. He said that no checking of the actual building as constructed on site had been undertaken to verify its conformity with the approval plans. He went on to say:
“In any case, I consider that the development does satisfy the purpose of controls, should it be found that there has been a departure from the approved plans issued by the first respondent Council and/or the controls of the Development Control Plan for the Island Residential Precinct.” (Ex. 1 Page 19)
Mr Hargrave undertook measurements to determine the floor area of the house as constructed. He measured what he described as the “main portion” of the building as 142m². This is shown on Exhibit 65. If this calculation were correct then there would be an exceedance of the Development Control Plan criterion by 2m². However, having regard to the definition of “site coverage” in Clause 2 of DCP 3, I am unable to be satisfied that his methodology is correct. The applicant’s submission is that it is not correct.
I am prepared to accept the evidence of Mr Edmonds that the site coverage is 148m². Mr Edmonds said that this would be a very minor exceedance and fairly unnoticeable. He said that as a planner it did not appear to him to be out of character in any way with the locality. (T348/1-10). (T363/10-30). I accept his opinion.
In opening the applicant’s case Mr Anderson said that it was not the intention of the applicants nor had it ever been to ask that the second respondents demolish their house. (T37/1-4). At (T186/35-40) Mr Patterson confirmed that he was not seeking any order for demolition of the house and that the purpose of demonstrating that the house was “over area” was not in order to have it altered. He said:
“I’m trying to make a point here that the information that Mr Cottee has submitted to the Redland Shire Council of 140m², could be incorrect and if it is, it’s a fairly significant figure because it then – if it turns out that it is 148m² as calculated by Mr Edmonds, as calculated by my surveyor and as perhaps can be confirmed by Mr Cottee, that I am submitting that it is a critical part of the information when put before the Redlands Shire Council that now we have something that does not comply with the DCP 3.
And there is a procedure that the Council is required to go through – I think it’s section 14 of the DCP 3 – before they can allow departures from the DCP 3 and further I will be talking not just about the area, I’m going to be talking about the height of the first floor, the height of the second floor and the height of the building, all of which, we will attempt to show are in excess of the DCP 3 at the time Mr Cottee submitted the plans for approval.”
In evidence Mr Cottee was asked about the measurement of 140m² as shown on the plans submitted to the first respondent. He indicated that he was happy to rely upon the accuracy of the measurement of 140m².
The applicants submit that based upon Mr Hargrave’s measurements in Exhibit 65 the site coverage would be 150m².
In the light of the stated position of the applicants to which I have referred that it is not their intention to have the second respondent’s house demolished because of any exceedance of site cover, that is, that no relief is sought because of any such exceedance, it does not seem to me that it is necessary to make any finding in relation to this issue.
If however I were to make a finding that there was an exceedance of 8m² based upon the evidence of Mr Edmonds and that therefore a development offence had been committed, it would not seem to me to be appropriate in the exercise of my discretion to make an enforcement order under s. 4.3.22 of the Act because of the stated position taken by the applicants that it is not their intention to have the second respondents demolish their residence because of any such exceedance. Furthermore, as submitted by the first respondent it seems to me that any exceedance in the building site cover would not necessarily affect the size of the roof about which the applicants complain. The first respondent’s submission was that 2m² could be taken off the front verandah readily with no impact whatsoever on the external appearance of the building or the area of the roof. It seems to me that even if the exceedance were 8m² the same outcome could be achieved.
Although other issues were the subject of written submissions particularly on behalf of the second respondents, as the applicants have accepted that the issues which were litigated are those set out in paragraph 7 of the submissions of the first respondent, it is unnecessary for me to explore those other issues.
On the basis of the findings which I have made, I am not satisfied on the balance of probabilities that the applicants have established any entitlement to the declaratory relief sought in paragraph (a) of the application or for the consequential order sought in paragraph (b) of the application.
Further, on the evidence before me, I am not satisfied on the balance of probabilities that the applicants have established their entitlement to the declaratory relief sought in paragraph (c) of the application.
So far as the declaratory relief sought in paragraph (d) of the application is concerned, I have already indicated that I am not satisfied that there has been any development offence committed by the second respondents whether the appropriate standard of proof is the criminal standard or the civil standard. It follows that the applicants have not made out their case for the consequential relief sought in paragraph (e) of the application.
Natural Justice
This issue was addressed by the first respondent in its written submissions. This issue was also touched upon by the applicants in their written submissions and particularly paragraphs 121 and 122. The submissions however are not relevant to any of the issues which were litigated at the hearing and it is unnecessary for me to consider it further.
In the applicant’s submissions, some argument was put which in effect was that the parties should be directed to enter into further negotiations. This was not part of the case advanced at the hearing and is not relevant to the relief claimed. I do not propose to consider it further.
The applicants have not discharged their onus of proof in relation to any of the issues which were litigated at the hearing and the application must be dismissed.
I will receive submissions in relation to costs.
G.T. Britton SC, DCJ
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