Pennings G and M v Wyong S C

[2004] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

Pennings G & M v Wyong S C [2004] NSWLEC 160

PARTIES:

APPLICANT
Pennings G & M

RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

10719 and 10721 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Section 96 modification - substantially same development - encroachment into forshore erosion zone

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wyong Local Environment Plan 1991

CASES CITED:

DATES OF HEARING:

05 - 06/04/2004

EX TEMPORE
JUDGMENT DATE :

04/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Bervelling, barrister
SOLICITORS
Conditis & Associates

RESPONDENT
Mr J Cole, barrister
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10719 & 10721 of 2003 Hussey C 6 April 2004

Pennings G & M
Applicant

v Wyong Shire Council
Respondent Judgment


Background
1. These proceedings involve the following two appeals which relate to alterations and extensions to a dual occupancy development at 15 Hutton-Street, North Entrance.


Appeal 1: No. 10721/03, is an appeal against council's refusal of a s 96 modification to regularise additional building works undertaken.

Appeal 2: No.10719/03, which is an appeal against council's refusal to issue a Building Certificate for the completed works


2 . The parties agreed that the 2 appeals be heard concurrently.

3 . The site is described as Lot 27, in DP 207704 and has a total area of 890 m2 and has a frontage of approximately 15 m to Hutton Street and extends through to a beach frontage. Two dwellings are erected on site, i.e. the eastern house is a three-bedroom, single level dwelling fronting the ocean and western house is a fibro cottage fronting Hutton Street.

4 . In December 1996, a development application was lodged proposing single storey additions, including sub-basement garage to the eastern house. Development consent was granted on 4 February 1997, subject to 26 conditions. Certain building works have then been undertaken pursuant to this consent.

5 . In February 2002, council officers undertook an inspection of the completed works and found a number of additional items, including the habitable rooms within the roof structure. Subsequently council notified the applicant to show cause why legal action should not be undertaken regarding these unauthorised works.

6 . This resulted in the applicant submitting the s 96 modification application to regularise the additional works.

7 . In addition to this, the applicant applied for a Building Certificate.

The modification
8 . In summary the main modifications to the original application involve:


- external access door on northern side building at ground level into room originally described as bedroom 3
- staircase from ground floor former bedroom 3 to first floor roof area,
- roof area showing open space (living area), but including sink, bedroom, deck off bedroom, and additional small rooms off bedroom.
- sliding glass doors within gable facing east,
- skylights in roof and mini tower/vent in the centre of the roof pitch.

Planning Control
Wyong LEP 1991
9 . The site is in the Residential 2(a) Zone, under this instrument. Detached dual occupancies, which are described as 2 dwelling houses on one allotment of land, are permissible with consent.

10 . Apart from this, dual occupancy buildings, which means a building consisting of 2 dwellings on one allotment, are also permitted with consent.

DCP No. 58, Guidelines for Dual Occupancy apply.
DCP No. 77, Coastal Hazards applies and its stated aims are:


1) To reduce the impact of coastal hazards on individual owners and occupiers within Wyong Shire.
2) To ensure that knowledge of coastal hazards guides the location and design of future development along the coastline.

11 . To achieve these aims, the DCP identifies Hazard and Risk Zones in which development is restricted or in which designs are required to reflect the threat of coastal hazards.

12 . Considering the ocean front location of the eastern house, the coastal risks include:
- short-term coastal erosion, including that resulting from severe storms and slope stability,
- long-term coastal resection including that resulting from climate change,
- oceanic inundation.

13 . The coastal hazards zones are delineated on sheet 12/15 relative to the subject property. (Attachment A.). It shows that the eastern house is substantially located within the 50 year Erosion Hazards Zone.

The Evidence
14 . Detailed evidence for the council was presented by:
• Mr R Dorn, planner/team coordinator with Wyong Council and his report is Exhibit 2,
• Mr A Nielsen, coastal engineer and his report is Exhibit 1

15 . For the applicant detailed reports were presented by:

• Mr D Kettle, consulting town planner and his report is Exhibit B,
• Mr M Tooker, coastal engineer and his report is Exhibit E,
• Mr W Nettleton, consulting building surveyor and his report is Exhibit D,
• Mr B Lomas, structural engineer and his report is Exhibit C,
• Mr P Stone, surveyor and his report is Exhibit F.


Discussion of the Evidence
16 . Even though the evidence for both these appeals was heard concurrently , following the submissions I now consider it appropriate to distinguish between the two appeals.

17 . Dealing firstly with the s 96 modification, there are two critical issues. They concern whether the application is substantially the same as the approved development and the relative merits of the application, particularly coastal erosion impacts.

18 . The coastal erosion impacts have been assessed by Mr Nielsen and Mr Tooker on the basis of the DCP 77 provisions. They agree that:

1. The coastal erosion hazards is defined in the AWACS Coastline Hazards Definition Study Report, which is presented in DCP 77.
2. The pre-existing dwelling is situated immediately adjacent to the predicted Immediate Coastal Erosion Impact Zone, which is defined in AWACS as the edge of the top of the slumped dune escarpment following severe erosion from the adopted design storm.
3. The pre-existing dwelling is founded on surface footings located in a Zone of Reduced Foundation Capacity for building foundations and as such, is considered to be at higher risk of collapse from storm inundation at present, or in the near future, should the design storm occur.
4. The improvements in the roof space over the existing residence have resulted in increased loadings on the footings, but are unlikely to have any discernible impact on the overall dune stability.

19 . Considering the merits of this proposal then, it seems that considerable technical investigation has been undertaken in the preparation of DCP 77, so as to establish guidelines for development in the coastal erosion zone. These guidelines provide:

2.0 No development or improvements shall be located within the Hazard Zone. Development immediately west of the Hazard Zone must comply with the criteria set down in Appendix A.


20 . But in this case, a substantial part of the first floor development is over the pre-existing house, representing a significant intrusion within the Hazard Zone. Whilst I accept that the controls are contained within the DCP and therefore some discretion can be exercised, I nevertheless consider that the degree of encroachment into this Hazard Zone is excessive and there are no exceptional circumstances presented to justify this. Furthermore I rely on the evidence of Mr Nielsen that these improvements may increase loading on the existing house and increase the likelihood of its failure in a major storm event, if its foundations are undermined. Therefore I do not consider that this degree of encroachment into the Hazard Zone is satisfactory.

21 . Furthermore, I consider that the public interest is maintained by reasonable compliance with the aims and controls in DCP 77, which this application does not achieve and therefore warrants refusal on this basis.

22 . Apart from this, there is also a separate question of whether the modifications relate to substantially the same development. Mr Dorn says that because the unauthorised works include a separate entry door on the northern elevation leading to the new staircase to the roof area, which has been fitted out as a bedroom, bathroom, kitchen and family room, it likely constitutes a separate dwelling. As such, he says approval of the proposal is not permitted. But in any case, the construction of this additional habitable area, results in the application not being substantially the same development in his opinion.

23 . Against this, Mr Kettle traces the history of the development of the property and concludes that the prior approvals have resulted in the property having the benefit of existing use rights. Furthermore he concludes that the modification relates to the same development.

24 . My assessment of this disparate evidence is that the initial consent basically allowed for limited ground level extensions of the pre-existing house, on its landward side. However the constructed works now provide for a significant increase in floor space with the practical conversion of all the roof space into a bedroom/ensuite, kitchen area and large family room, that could be utilised as a separate dwelling as stated by Mr Dorn. Also a considerable part of this is in the Hazard Zone.

25 . It is apparent to me that the application of the of this s 96 modification would result in a considerably different and more intense development, within the erosion of Hazard Zone, than originally approved. I therefore do not consider it is substantially the same development and therefore this appeal should also be refused on the grounds that it is not substantially the same development.

26 . In this appeal Court orders are:
1. The appeal is dismissed.
2. The s 96 modification to development application No. 1158/96 is refused.


27 . With respect to the other Building Certificate appeal, it appears that the parties have undertaken productive discussions, resulting in an agreement for significant removal of the unauthorised works within the Hazard Erosion Zone.

28 . These works are listed in the schedule in Exhibit 7 and basically require the removal of the first floor kitchen, family room that are located within this Hazard Zone and converting this back to a storage area within the roof, as originally approved.

29 . Also importantly, is the proposal to provide a construction joint or "break line" between the old house and new section, which takes account of the different foundation conditions in each section and allows differential reaction in major storm events.

30 . In my assessment, the outcome of these proposals should result in reasonable compliance with the aims and intent of DCP 77. I understand from the submissions that if these rectification works are undertaken then council would be more satisfied to issue the Building Certificate.

31 . However I consider that the removal of these unauthorised works within the Hazard Zone should be in accordance with the detailed plan to ensure that structural problems are adequately addressed.

32 . Therefore in accordance with s 149C, I will adjourn these proceedings so that the applicant can supply further details, specifications and plans to enable determination of whether the Building Certificate should then be issued.

33 . The matter is adjourned to enable the parties to consider the extent of removal of the unauthorised work.

R Hussey
Commissioner of the Court
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