Richards v Baulkham Hills Shire Council

[2008] NSWLEC 1503

Land and Environment Court

of New South Wales

CITATION:	Richards & anor v Baulkham Hills Shire Council [2008] NSWLEC 1503
PARTIES:	APPLICANTS E & S Richards RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10881 of 2008
CORAM:	Moore C
KEY ISSUES:	Building Certificate :- Unapproved development Privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005
CASES CITED:	Ireland v Cessnock City Council 110 LGERA 311 Zhang v Canterbury City Council (2001) 115 LGERA 373 Super Studio v Waverley Council [2004] NSWLEC 91
DATES OF HEARING:	9 December 2008
EX TEMPORE JUDGMENT DATE:	9 December 2008
LEGAL REPRESENTATIVES:	APPLICANTS Mr Young, barrister RESPONDENT Mr Winn, solicitor Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

9 December 2008

08/10881 E & S Richards v Baulkham Hills Shire Council

JUDGMENT

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

1 COMMISSIONER: Mr and Mrs Richards reside at 5 Maralinga Avenue, West Pennant Hills. They have erected, along the southern side of their house, a deck which is approximately 16 m in length and 4.2 m in width – at a height between 1700 and 1900 mm above ground level. The deck is set back approximately 6.8 m from the rear boundary (which is the boundary of their property with that owned by Mr and Mrs Dennis at 16 Timberline Avenue).

2 The deck which Mr and Mrs Richards have erected is in replacement for a significantly smaller, pre-existing deck which had been located attached to a flight of stairs which is now subsumed by and underneath the present deck. Mr and Mrs Richards did not have and do not have development consent for the erection of this new structure. After the matter was drawn to the attention of Baulkham Hills Shire Council, Mr and Mrs Richards applied to the council for a building certificate to permit the retention of the structure and to permit its use as a deck ancillary to and forming part of the dwelling.

3 It is the position of Mr A Martin, the town planner who has appeared for Mrs Richards, that I should treat the deck as having a carrying capacity of approximately 50 people. I have proceeded on that basis.

4 The process that is ordinarily undertaken in these types of proceedings is that which was discussed by Bignold J in Ireland v Cessnock City Council 110 LGERA 311. This approach adopts a scheme by which two questions would be considered by the Court:

• the first requires demonstration of the structural adequacy of the elements which have been erected without development consent; and
• second, given structural adequacy was demonstrated, then a consideration of the appropriateness, on broad planning grounds, of the structure being permitted to remain and be used for the proposed purposes.

5 I also note that Bignold J expressly put the view that the criminal law is the appropriate vehicle for punishment of unlawful conduct and that it is not appropriate in proceedings such as he was undertaking (or I am undertaking, in this instance) to pass any moral judgement on the applicants and I do not do so.

6 The Richards’ structure is one for which, at the present time, there are no adequate plans and where there is no structural engineering certificate. Both of those are defects which are capable of cure and, as was with discussed with Mr Winn, solicitor the council, and Mr Young, barrister for the Richards, I considered it appropriate, in the just, quick and cheap disposal of the proceedings, to proceed to continue to hear the merits of the matter. I did so on the basis that, if I were otherwise minded to grant a building certificate, we would discuss how, in light of that result, these defects could be cured before the granting of such a certificate.

7 The council originally proposed to enter into consent orders leaving me to consider the objections of Mr and Mrs Dennis, the neighbours to the south. However, during the course of the hearing that position has changed and the position is now, after the view and subsequent evidence, the council opposes the granting of a building certificate for the structure as proposed by the applicant.

8 Mr Winn did so on a number of bases arising out of the general aims of the Baulkham Hills Local Environmental Plan 2005; the aims and objectives of the residential 2(a1) zone within which Mr and Mrs Richards and Mr and Mrs Dennis's properties are located; and a number of specific provisions contained in the Baulkham Hills Development Control Plan.

9 Mr Winn drew my attention to the broad objective of the LEP to require development to improve and integrate with the local character of the locality in which it is carried out. I do not consider, under the circumstances, that I need to have regard to the broadness of that – given the comments by Bignold J in Ireland that what I am being asked to assess is the acceptability of use of the proponents of the existing structure rather than carrying out a detailed planning evaluation using the full breadth of section 79C of the Environmental Planning and Assessment Act 1979.

10 However, I do accept that the zone objectives for the 2(a1) zone are relevant in raising matters that require my consideration in the context of the existing structure and that which is proposed to be constructed to address the privacy concerns raised by Mr Dennis.

11 They are contained in zone objectives (e), (f)(ii) and (f)(iii) relating to the amenity of neighbours; privacy of existing residents and the transmission of noise between dwellings

12 It is in that context that I turn to consider the provisions of the Development Control Plan (mindful of the fact that I am not undertaking a full s 79C evaluation). However, despite that, I am also of the view that, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I am obliged to use the relevant provisions of the Development Control Plan as the focus or starting point for my consideration.

13 Doing so, on the question of the acceptability of use, there are three principal issues, in my view, that I am required to assess. They are:

• visual privacy to the Dennis residence and the private open space at the rear of that property;
• acoustic privacy to the Dennis residence itself and to the private open space; and
• the question of overshadowing of that private open space

14 I accept the submission of Mr Young, which is consistent with the evidence given by Mr Dennis during the site inspection, that overshadowing of the dwelling itself is not of significant concern.

15 I turned first to the question of visual privacy and the proposed wooden privacy screen. This structure would extend from approximately 1 to 1.5 m to the east of the eaves line of the Dennis property for a distance of 10 m to the west. Thus it would extend for approximately 65% or so of the boundary between the Dennis property’s private open space and the Richards property. This proposed screen is described, in the joint report of Ms Burke, town planner for the council, and Mr Martin to be a privacy screen at a height of 900 mm above the existing boundary fence (set in 1 m from the boundary). The privacy screen is to have 45 mm treated pine or hardwood timber screen slats with a maximum 15 mm gap. In addition, to the north of the privacy screen and in its immediate vicinity (punctuated only by the existing eucalypt which is a Sydney blue gum) are to be planted a row of Brush Cherry trees to grow to a height of 3.5 m.

16 From the end of the privacy screen to the western boundary of the Richards’ property there is no timber privacy screen proposed. There is, however, a continuation of the vegetation noted above along this area to grow to a height of 3.5 m. In Super Studio v Waverley Council [2004] NSWLEC 91, Roseth SC published a planning principle which said, effectively, that the because of the vagaries of life and the uncertainty of maintenance of plantings and the vicissitudes of climate, where vegetation is a main element in providing privacy, very little weight should be given to this.

17 For the area between the eastern end of the privacy screen and the western end of the privacy screen, the proposed vegetation provides a significant but nonetheless merely supplementary element to the proposed privacy screen. From the end of the privacy screen to the western end of the common boundary between properties, the proposed vegetation, however, provides the only proposed privacy screening for approximately 50% of the Dennis property’s rear private open space for a length of approximately one third of the deck located on the Richards’ property.

18 Setting aside that length of vegetation, consistent with the planning principle enunciated in Super Studio, the privacy impact on that portion of the Dennis property’s private open space (which includes the washing line) is fundamentally inconsistent with the provisions of the Development Control Plan.

19 I am satisfied that it is appropriate to adopt the planning principle enunciated in Super Studio. As a consequence, with respect to the western portion of the proposed privacy planting which is the only privacy protection for this section, I should disregard and give very little weight to the privacy protection that would be afforded to the Dennis property by that planting. As a consequence, I would reject the proposal on that basis alone – as the privacy impact on the Dennis property at the western end would be unacceptable under those circumstances.

20 I am satisfied that the visual impact on the Dennis property from the wooden privacy screen plus the vegetation (setting aside only the privacy aspect of the vegetation, consistent with the planning principle in Super Studio, not its proposed planting), would be an adverse impact on the Dennis's private open space but only an impact which is such as to contribute to refusal but not warranting refusal in its own right.

21 The second element of privacy is that which relates to acoustic privacy. The proposed wooden screen, as I earlier indicated, is to have a maximum gap of 15 mm between slats and is not a continuous unbroken structure. It extends only for approximately 65% of the boundary between the Dennis and Richards properties. Consistent with Super Studio, I reject consideration of the plantings as a basis for protection of the acoustic privacy between the properties. I accept that the council, consistent with the evidence given by Ms Burke, may informally adopt a different principle but that is not consistent with the approach taken by the Court and there is nothing in the Development Control Plan or any other council prescription in such an instrument that would cause me to depart from that planning principle. As a consequence, I am left to assess the acoustic impact on the Dennis property on the basis of a structure for approximately 65% of the length of the boundary fence which is a structure punctuated by gaps and with no structure for approximately 35% of the boundary.

22 The carrying capacity of the deck is something of the order of 50 people as Mr Martin agreed.

23 I have uncontradicted and unchallenged evidence from Mr Dennis, given in a written submission to the council on 17 March 2008, that, at least on one occasion, a portable sound system has been installed by the Richards and used on the deck. Even if I were to set aside the question of the use of such a sound system (something which might be able to be banned by a condition of consent – although one difficult to enforce), I am still satisfied that the evidence given in writing by Mr Dennis that he has been able to hear conversations in his house from use of the Richards’ deck, when coupled with the fact that there is an inadequate acoustic privacy system proposed, renders the proposed use and ancillary structures unacceptable (and sufficiently unacceptable to warrant refusal on that basis alone – quite separately from the visual privacy impact on the western end of the Dennis's backyard).

24 Finally, I turn to the question of overshadowing. I have no shadow diagram information available to me. I am obliged to estimate the shadow impacts on the rear part of Mr Denis’s property. I accept the Mr Martin's concession that there would be some degree of impact. I certainly am not prepared to conclude that the overshadowing impact would extend to overshadowing of Mr Denis’s clothesline (even if the screening vegetation were to grow to the height proposed). I do, however, consider that the overshadowing would, itself, be significant and only arises because of the necessity to address, as the Richards propose, questions of visual and acoustic impacts that would otherwise be occasioned to Mr and Mrs Dennis and any future residents of their property.

25 I am satisfied that the overshadowing, when coupled with the element of visual impact that would arise from the height of the wooden structure when taken together would provide a separate, distinct and third basis upon which to refuse the building certificate and proposed use for the deck.

26 During the course of the finalisation of the proceedings, I should note that Mr Richards gave evidence concerning the landscape and gardening maintenance activities he both currently undertakes and anticipated undertaking in future – including keeping the proposed plantings trimmed to 3.5 m in height. I make no criticism of the honesty or sincerity of his evidence in this regard. However, good intentions do not displace the planning principle discussed in Super Studio. Whilst I acknowledge the expressions of future intention he gave in evidence, I give them little weight in this process.

27 The consequence of all the foregoing is that orders of the Court are that the appeal is dismissed; the applications for a building certificate and for the use of the deck are refused; and the exhibits, other then Exhibits 1 and 5, are returned.

Tim Moore
Commissioner of the Court