Samuels v Waverley Council

[2009] NSWLEC 1161

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Samuels v Waverley Council [2009] NSWLEC 1161

PARTIES:
APPLICANT
Jonathan Paul Samuels

RESPONDENT
Waverley Council

FILE NUMBER(S):
10170 of 2009

CATCHWORDS:
SECTION 121B ORDER :- Verify and/or rectify retaining walls, upgrade fencing to prevent overlooking, pool filter noise suppression

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Hussey C

DATES OF HEARING:
6 May 2009 and 12 May 2009

JUDGMENT DATE:
25 May 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr J Samuels (self represented)

RESPONDENT
Ms C Mortion (solicitor)
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 May 2009

10170 of 2009  Jonathon Paul Samuels v Waverley Council

JUDGMENT

1. This appeal is against a s 121B order requiring certain works to be carried out at No. 23 Narelle Street, North Bondi.  This Order is required:

   i.Construct boundary fencing so that it provides privacy to the adjoining property owners;

   ii.Fit the pool filtration equipment beneath the deck to the rear western corner of the living room and not fitted within a ventilated sound-proof enclosure, and

   iii.           Install the core filled block works retaining wall(s).

2. The issue of the Order has arisen from the development consent granted for a new 2-storey dwelling and pool in the rear yard at this site.

1. These works have now been substantially completed, although a final Occupation Certificate not issued.

1. The applicant Mr Samuels has filed his reply to the Statement of Facts and Contentions and has also made an application to deal with the subject Order as follows:

   Orders Sought:

   1.Declaration by the Court that the Order is null and void.

   2.That an occupation certificate be issued to the Applicant in respect of the property at 23 Narelle Street, North Bondi.

   3.Respondent pays to the Applicant all fees and costs associated with this Application.

   4 Respondent returns to the Applicant the bank guarantee held over the Applicant’s premises for the purposes of the development.

The Appeal

1. The details of the site and history of this development are contained in the Statement of Facts and Contentions on which I rely. The site is situated on the northern side of Narelle Street, to which it has a 12.91m frontage  and an area of 441.9sq m. The relevant controls are:

   Waverley Local Environmental Plan 1996 (LEP).
   Waverley Development Control Plan – Part D1 Dwelling House and Dual Occupancy Development (DCP).

2. The hearing of this matter commenced on-site and there was an opportunity to inspect the completed works, the neighbouring properties and hear from the neighbours about their concerns.

1. These concerns are generally that the filling in the rear yard and pool area has introduced pressures onto the existing “un-engineered” retaining walls adjacent to the neighbouring properties, which is likely to cause more damage along the common boundary.

1. Concerns were also expressed about the loss of privacy through the horizontal slatted boundary fence on the subject property. Noise from the pool filter/water circulation system was also identified as an issue by the neighbours.

1. Following the view, a number of documents were tendered, which included the council bundle of document’s containing the draft council conditions and approved plans, together with a subsequent s 96 Modification.

1. As discussed on site, I have dealt with the 3 components (retaining walls, fencing, pool filter noise) of these Orders in the following way.

1. Retaining walls,

From the view it is apparent that the subject properties north/south levels are somewhat higher (in the order of 1.2 m approx) than the properties to the north and west.  Apparently there were retaining walls generally along these common boundaries prior to the construction.

1. The construction works for the yard filling and the pool changed this relationship between these neighbouring properties and one of the concerns by the neighbours is that the fill on the subject property is unstable and requires appropriate retaining.  This is the intent of the Council Order.

1. The approved plans contain various notes about the existing retaining walls and the latest s 96 plan (Tab 4) JS/9006/7C contains the following, somewhat unclear notes along the northern boundary:

   “position of new pool to detail”,
    “existing retaining walls to checked by engineer new walls to be built as per pool details”,
   “existing boundary fence & retaining wall to be replaced, fence 1100 (?) above pool”.

2. The corresponding conditions of consent require:

   10.Details of Bulk Excavation, Shorting Orpile Construction

   A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works.  The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate.
   Any practices or procedures specified in the Structural Engineer’s report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.

   15.          Engineering Details

   Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural details prior to the issue of a Construction Certificate.

3. Insofar as the detailing on the plans is somewhat unclear, I am satisfied from my reading of the plans, together with the conditions of consent, that there is sufficient clarity of intent for the existing, pre-development retaining walls to be checked for structural adequacy initially and if not adequate, then suitable replacements be constructed. This is generally in accordance with standard practices.

1. I note that there is a separate structural retaining wall detail with the same date (19 February 2008). My interpretation is that the consent recognised the proposed changes in levels adjacent to the common boundaries and the approval of works was subject to certification of structural adequacy of the existing retaining wall structures and any new retaining walls arising from this development.

1. In the usual circumstances, I expect that a competent structural engineer would visit the site and undertake an assessment of the site constraints and condition of existing structures. Then recommend appropriate measures to ensure there would be no adverse impacts on neighbouring properties from the proposed works.

1. However, no such structural engineers report was presented to the Court at the On-Site Hearing. Although I note that a structural design for a retaining wall was issued with a Private Certifier Certificate No. 08/640, no details on the basis for this certification was tendered. I therefore have some difficulties in determining the extent of the certified works. Notwithstanding this, I consider this certificate indicates that some new retaining walls were to be constructed.

1. But in any case, I am satisfied that it is apparent that the proposed works would have potential to adversely impact on the neighbouring properties. It appears that this has subsequently occurred as evidenced by the damaged pool/panel order the pool and failure of part of the existing low retaining walls in neighbouring property to the north.

1. In the circumstances that the development has caused a significant change to the surrounding levels and nature of use of their property - i.e. the swimming pool is noticeably higher and very close to the rear and side boundaries, then I consider that structural certification of the existing works should be provided. Otherwise new retaining walls should be constructed to an extent which does not cause any adverse structural influences, or bearing on neighbouring properties.  A modified order is therefore warranted for this component.

Fencing.

1. Following the inspection the constructed horizontal slatted perimeter fencing, I note that its acceptance is firstly dependant on the resolution of the retaining wall compliances.

1. Having considered the neighbours objections and on the basis of my site assessment, I do not consider the fence specification is “so open” that it affords unreasonable overlooking or loss of privacy to the neighbouring properties. This is except for the lower of the fence, immediately above the retaining walls near the north and west boundaries, where the slats should be closed for a height of 500 mm above the pool coping, to prevent direct overlooking from the pool. In my assessment, this would result in a level of privacy consistent with this neighbourhood.

1. Another aspect of the existing fencing concerns its presentation the neighbours on the north-west corner. In this section, the back of the fence adjacent to the pool appears incomplete and has an unsatisfactory presentation to the neighbour’s properties and requires more upgrading.

1. Insofar as the neighbour to the west raised concerns about the possible encroachment of part of the new fencing onto his property, in particular the fixing plate and ‘nuts and bolts’, I consider it reasonable that the boundary be surveyed to establish whether there are any such encroachments. If so, and in the absence of any agreement by the by the neighbours, I consider any encroachments should be removed to provide a satisfactory aesthetic and safe environment.

Pool filter

1. The pool filter has been constructed adjacent to the house on the deck level rather than under the pool.  I understand that there is some flexibility with the actual location, providing the noise from running this filter/water circulation unit is mitigated to a reasonable level.  Whilst no technical acoustic details were provided, it appears feasible that the existing pool filter box can be satisfactorily sound-proofed to meet acceptable noise criteria.

1. Therefore, I consider it is appropriate to issue a new order, which requires the filter box to be sound proofed to comply with appropriate local noise amenity criteria.

1. Considering the knowledge of the parties with this matter I will adjourn the matter till next Tuesday to allow the parties to formulate new orders to comply with the findings.  With respect to the orders sought by Mr Samuels, my position is:

   1.I do not consider it is this Courts responsibility to consider whether the Order is null and void.  Instead, the Respondent is entitled to issue such an order, providing the procedures for notification intention are followed and then such order is subject to merit appeal as in the current circumstances.

   2.The issue of Occupation Certificate is outside the scope of this appeal, but it is obvious that inadequate structural certification has been provided to allow this to happen.

   3.This Court has no power regarding costs of this matter.

   4.            Not within the scope of the appeal.

2. Matter is now adjourned for parties to file new orders in accordance with these findings.

1. Pursuant to the adjournment and further submissions by the parties, the Court now makes the following orders:

   1.            The appeal is allowed.

   2.The Section 121B Order No 15 issued on 13 February 2009 in respect of 23 Narelle Street, Bondi is varied in accordance with the details in Annexure A.

   3.            The exhibits may be returned.

   ___________________

   R Hussey
   Commissioner of the Court

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