Roel Mulder & Associates v Manly Council

[2006] NSWLEC 340

Land and Environment Court

of New South Wales

CITATION:	Roel Mulder & Associates v Manly Council [2006] NSWLEC 340
PARTIES:	APPLICANT Roel Mulder & Associates RESPONDENT Manly Council
FILE NUMBER(S):	10913 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification of consent Unapproved works Building certificate Noise .
DATES OF HEARING:	21 December 2005 and 2 June 2006
EX TEMPORE JUDGMENT DATE:	06/02/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor Hones Lawyers RESPONDENT Mr R Graham, solicitor Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

2 June 2006

10913 of 2005 Roel Mulder & Associates v Manly Council

JUDGMENT

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

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act1979 (the Act) concerning a proposed enclosure of an undercroft at 2a Woodland Street, Balgowlah Heights (the site).

2 Erected on the site is a substantial dwelling which presently has three levels of balconies and potential entertaining areas facing to the east, and at the lowest level, which is the fourth effective level of the dwelling, is an undercroft area slightly above and overlooking an outdoor swimming pool.

3 I had the opportunity of inspecting the site and the neighbouring property to the north, north-east and east in the company of the parties’ legal representatives and the Court-appointed expert in December 2005.

4 As a consequence of that inspection, it was obvious that the works as built did not reflect the plans as approved by Manly Council (the council) and that it was not appropriate for me to continue to deal with the matter until appropriate plans had been prepared and dealt with by a structural engineer. That has now been done and I am in receipt of plans which show that which actually exists on site at the present time, together with a report by P & S Mears Consulting Structural Engineers, attesting to the adequacy of that which is present, and the reasons for it, arising as consequence of what was discovered during the excavation for the construction of the dwelling. I also have Building Certificate 316.2A.2006BC (the building certificate), issued under s 149D of the Act by the council, dated 14 March 2006, with respect to the works as constructed.

5 The issue that therefore remains in contention is what use, if any, should be permitted to be made of the undercroft area.

6 I have had the benefit of a report from Ms Laidlaw, the court-appointed town planning expert, who notes that the currently constructed floor space ratio, including the undercroft area, is .538:1, compared to a permitted floor space ratio of .4:1 (this arises from cl 3.3 of the council’s Development Control Plan).

7 The relevant objective for my consideration in these proceedings arising out of the Development Control Plan and the floor space ratio exceedence is the fourth dot point of the objectives - that is to minimise disruption of views, loss of privacy and loss of sunlight to existing residential development.

8 Thus the relevant issue arising in these proceedings is the loss of aural privacy to the surrounding properties as a consequence of the noise likely to be emanating from the proposed possible use of the undercroft area - in the council’s opinion - for entertaining purposes.

9 If I were to refuse the appeal, it is conceded by Mr Graham, solicitor for the council, the effect of the issuing of the building certificate would be to enable the residents to have the unrestricted use of the totality of the undercroft area in lieu of that which is presently proposed, (which would effectively partition sixty per cent of the undercroft area behind a Gyprock stud wall with a conventionally sized doorway opening to it - which would permit and encourage use of the inner area as a storage space).

10 As a consequence, I am satisfied that it is in the interests of the surrounding residents that that reduction in usable area occur so that, at the very least to that extent, the appeal should be upheld. Mr Graham has conceded on behalf of the council that that is the appropriate position.

11 It leaves therefore only the matter to be determined as to whether or not the remaining forty per cent of the undercroft area should be subject to any enclosure at all.

12 In this context, I note that the applicant has sought through its solicitor, Mr Hones, an amendment to the conditions applying to the use of the swimming pool - restricting the hours of the use of the pool to 6am to 10pm, seven days per week. Mr Hones has also indicated that, if I were minded to impose some further restriction on the use of the undercroft area, only the centre portion of the three sections would need to be of bi-fold doors, and the applicant was content to have glass block walls erected to the north and south.

13 I have carefully considered the question of how it is possible to ameliorate the impact of the use of the undercroft area as unrestricted use of the undercroft area became permitted as a consequence of the issuing of the building certificate.

14 I am satisfied that requiring those measures which would necessarily impose physical or operational restrictions on the use of the area so as to ameliorate any noise impacts that might arise for the neighbours, is the desirable course to follow in light of the issuing of the building certificate which has the unrestricting effect earlier noted.

15 I have concluded, therefore, the following:

• First that it would be appropriate to permit some enclosure, provided that enclosure had the effect of ameliorating noise that might be generated from that area.

In that regard the applicants proffered acceptable alternatives of glass brick walls on either side of the piers as preferable to the proposed bi-fold doors.

I am, however, also of the view that having four folding doors in the area between the central pillars is also unacceptable and that French doors limited to conventional sizes, with fixed glazing on either side, generally analogous to an entrance doorway, would also be appropriate to provide further noise shielding to the neighbours. The glazing for the fixed side windows should be laminated glass. The single door on each side, that is the two French doors, can be glazed doors but also should be of laminated glass so that there is effective noise shielding when they are enclosed.

• Second, I am also satisfied that the hours of proposed restriction of operation of the swimming pool are not appropriate and that the permitted hours of operation should generally comply with those postulated by the Environment Protection Authority for elimination of sleep disturbance events, which are 7am to 10pm rather than 6am to 10 pm.

16 Therefore the appeal will be upheld on the bases that I have indicated. This will require the applicant to file amended plans reflecting the terms of this decision, and the respondent filing revised conditions reflecting the terms of this decision.

17 I therefore give the following directions:

1. The applicant is to file and serve revised plans reflecting this decision by the close of business on 7 June;
2. The respondent is to file and serve revised conditions reflecting this decision by the same date;
3. The matter is set down for callover before the Registrar on 20 June;
4. Liberty to re-list on two days notice before me if there is any dispute arising out of the revised plans or conditions; and
5. If revised agreed plans and revised agreed conditions are filed in accordance with directions 1 and 2, the callover will be vacated and I will issue orders in Chambers to give effect to this decision.

18 The matter is adjourned to callover on 20 June.

Tim Moore

Commissioner of the Court