Sud v Sutherland Shire Council

[2013] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sud v Sutherland Shire Council [2013] NSWLEC 1177

Hearing dates:

16 September 2013

Decision date:

24 September 2013

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is dismissed.

(2)The application for a partial Building Certificate (BC 12/0089) for the 3m extension of the roof slab over the rear balcony and supporting columns at 215 Loftus Avenue, Loftus is refused.

(3)The exhibits may be returned except for 1, 2, 3, 4, 8, A, B, C and E.

Catchwords:

Building Certificate - Authorisation of unapproved works comprising a roof slab over balcony - privacy and acoustic impacts on neighbours - visual bulk and scale - associated matter of pending s 123 Orders

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sutherland Local Environmental Plan 2006
Draft Sutherland Local Environmental Plan 2013

Cases Cited:

ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256
Ireland v Cessnock City Council (1999) 103 LGERA 285 at [86]
Kouflidis v City of Salisbury (1982) 29 SASR 321
Sud v Sutherland Shire Council [2012] NSWLEC 1162
Super Studio v Waverley Council [2004] NSWLEC 91
Taipan Holdings v Sutherland Shire Council [1999] NSWLEC 276

Category:

Principal judgment

Parties:

Mr J Sud (Applicant)

Sutherland Shire Council (Respondent)

Representation:

Mr J Johnson (Applicant)

Mr R O'Gorman Hughes (Respondent)
Kiki Kyriacou Lawyers (Applicant)

Ms J Amy (Respondent)

File Number(s):

10337 of 2013

Judgment

Background

1. This appeal was lodged against Council's refusal to issue a Building Certificate for part of the rear roof component of a partially completed two-storey dwelling at 215 Loftus Avenue, Loftus. The component is an extension of the roof slab, which effectively provides a 4.2 m wide cover over the first level balcony.

1. The site has an area of 1011.7 sq m and a frontage of 20.117 m to Loftus Avenue, which is adjacent to the Illawarra railway line. The surrounding development comprises town houses to the east and a twostorey dwelling to the south. Other nearby development comprises low-density residential development.

1. The development history involves:

• DA 10/10119 was granted consent in April 2010 to demolish an existing dwelling and construct a two-storey dwelling, a pool and detached garage on the site. The consent allowed a 1.2 m wide extension of the roof slab over the first floor balcony.
• A s 96 Application (MA 11/0277) was lodged in September 2011 for a range of modifications including a 3 m extension of the roof slab over the balcony to be supported by four additional brick piers and a concrete support column. This application was refused in November 2011.
• Another s 96 Application (MA 11/0365) made in November 2011 for various matters, including the same extended roof over the balcony. This application refused January 2012.
• In June 2012, an appeal to the Land and Environment Court was made in respect of MA 11/0365. The appeal was upheld but included the following Condition M:

"This modification does not approve the northern 3 metre extension of the roof slab and supporting columns over the rear balcony, which was not approved in the development consent as originally granted."

1. Consequently, the following contentions were identified for the current appeal:

• Public interest; The approval of this Building Certificate application to regularise the 3 m roof extension and five supporting columns over the rear first floor balcony contravenes the objectives of the Environmental Planning and Assessment Act and the relevant objectives of Sutherland Shire Local Environmental Plan 2006 and accordingly would not be in the public interest.
• Unacceptable visual bulk and scale; The 3 m roof extension and five supporting columns over the rear first floor balcony have an unacceptable visual impact when viewed from adjoining properties as a result of the increased bulk and scale.
• Adverse aural and visual privacy impact on neighbouring properties.
• Inadequate information; The Application has not provided adequate certification that the building is structurally sound in that:

(a)   The certificates provided by the Applicant are not dated.

(b)   The certificates do not indicate any dates of inspections being undertaken by the certifier.

(c)   There is no indication of which structural drawings the building has been assessed against.

The Building Certificate application

1. As noted, this application refers only to the 3 m extension of the roof slab and the five supporting piers on the first level balcony, of the partially completed, twostorey dwelling house.

1. The consent for this dwelling approved an elevated balcony at the rear of the dwelling, adjacent to a designated entertainment room and bedroom with doors approximately 3.6 m wide onto the balcony. The area of the approved balcony is 4.2 m wide by 13.5 m long. The consent allowed for the concrete roof slab above the balcony to extend1.2 m over the balcony and for 1,600 mm privacy screens to be erected along the sidewalls.

1. However the construction of the dwelling have resulted in the roof slab being extended across the entire 4.2 m width of the balcony and supported on four additional piers along the northern extremity, together with a structural concrete column midway along the eastern wall.

1. Insofar as Council's stated outcome is that the width of the roof slab should be reduced by 3 m, the applicant says that this is unreasonable as the resultant impacts are satisfactory and it would incur considerable costs because of the design and support structure of the integrated roof slab.

Planning controls

1. According to the evidence presented to the Court, the following controls are relevant.

The site is affected by the provisions of Sutherland Shire Local Environmental Plan 2006 (SSLEP2006), wherein Clause 11 - Zones identifies the site as being located within Zone 4 - Local Housing. A dwelling house is a permissible land use under the Zone 4 Local Housing zone.

1. In cl 3 the relevant aims include:

• to enable the achievement of the community's vision for Sutherland Shire through the proper management, development and conservation of the Shire's environmental resources,
• to establish a broad planning framework for controlling development in Sutherland Shire,
• to put in place a framework of controls to address current and future housing needs.

1. The Zone 4 - Local Housing objectives include:

• to allow low density residential buildings that complement the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,
• to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,
• to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone.

1. Clause 48 Urban design - general, contains the following provisions:

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,

(b) the extent to which any proposed buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,

(d) the extent to which the natural environment will be retained or enhanced by the proposed development,

(e) the extent to which the proposed development will respond to the natural landform of the site of the development,

(f) the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

1. The Draft Sutherland Shire Local Environmental Plan 2013 provides:

A Draft Standard Instrument Local Environmental Plan was exhibited from March to 1 May 2013. Under the Draft Local Environmental Plan it is proposed that the site be zoned R2 - Low Density Residential. Under that zoning a dwelling house is a permissible use.

Relevant clauses include: 1.2 and the Part in relation to zone R2. The controls are similar to those in SSLEP 2006.

1. The Sutherland Shire Development Control Plan 2006 contains the relevant detailed development controls. The relevant chapters are:

• Chapter 1 Design Principles and Site Analysis
• Chapter 3 Urban Design

1. In this particular matter, the following provisions of cl 149D of the Environmental Planning and Assessment Act 1979 (EP & A Act) are also relevant in this matter.

149D Obligations of council to issue building certificate

(1) The council must issue a building certificate if it appears that:

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993:

(i) to order the building to be demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.

(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.

(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1)(a).

(5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

The evidence

1. Detailed joint planning and engineering reports were presented by:

• Mr K Nash; Consulting planner for the council
• Mr A Hammoud; Consulting planner for the applicant
• Mr D Pepper; Council's civil/structural engineer
• Mr M Zaioor; Applicant's consulting engineer.

1. For the determination of this appeal, the parties referred to a number of authorities dealing with the assessment of building certificates. Firstly, Mr O'Gorman Hughes submits that in Ireland v Cessnock City Council (1999) 103 LGERA 285 at [86] Bignold J referred with approval to the following passage of the decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321:

Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions.

1. Bignold J then concluded at [87]):

The approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing planning appeals, demolition order appeals and building certificate appeals.

1. Then in Taipan Holdings v Sutherland Shire Council [1999] NSWLEC 276 Bignold J again endorsed the above approach and noted that it was appropriate in that case to determine the building certificate application as if it were a hypothetical development application to rebuild the structure the subject of the proceedings:

1. Reference was also made to ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 where Preston CJ endorsed the approaches taken in Kouflidis and Ireland, stating at [35]:

...the Council in issue 7 raised issues that may not properly be raised in a merits review hearing. For example, issue 7.6 refers to past breaches of conditions of consent by the existing development. It is well accepted that past unlawful use is not a relevant issue in determining whether prospective consent should be granted or a modification should be allowed: see Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; 49 LGRA 17; Ireland v the Cessnock City Council (1999) 103 LGERA 285 and the subsequent decision (1999) 110 LGERA 311; and Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 (2 March 2006).

1. Mr Johnson's submissions support this approach that the BC application should be assessed on the basis of a notional development application. He also submits that s 39(4) of the Land and Environment Court Act 1979 requires consideration of the public interest and circumstances of the case. The circumstances of this case include the property owner apparently not being responsible for the unauthorised works, the unreasonable cost of demolition of part of the slab and risk of damage to the overall structure.

1. Accordingly, I have undertaken a merit assessment of the application on the basis of the planning and engineering opinions, evidence of neighbours and observations at the view. One of the main concerns is that the retention of the roof slab will likely change the intensity of the balcony use resulting in adverse impacts on the neighbours. In this regard I note that the applicant's offer to place 2 m wide planter boxes at either end of the balcony, together with landscaping to effectively reduce the useable area to approximately 36 sq m and thereby minimise amenity impacts.

1. Insofar as the merit issues of the extended roof slab were previously assessed in the appeal Sud v Sutherland Shire Council [2012] NSWLEC 1162, the planners referred to the findings in that appeal. As part of his current assessment, Mr Nash quoted the following paragraphs from Commissioner Dixon's judgment:

Extension of roof form at the rear of the dwelling to fully cover the balcony below.

16 Having stood on the rear deck and looked out I was able to see clearly over and into the windows of the adjoining properties. The town house number 4 on the eastern boundary is in close proximity to the spa and elevated deck. In fact it looks out at the rear deck from its living room and bedroom. This elevated rear deck and concrete slab roof is also clearly visible from the backyard of the site and the rear properties through some vegetation. Based on the evidence, this heavy 200 mm concrete slab roof dominates the neighbours' properties to the east and west. When viewed from the rear of the subject site the built form roof looms largely and is out of scale with the adjoining built form. I accept the evidence of the objectors and Mr Nash that the proposed extension of the concrete slab roof over the deck adds unacceptable bulk to this already large dwelling.

17 I also accept the evidence of Mr Nash that the extended roof allows for the terrace to be used as an entertaining deck during all seasons. Even with the proposed privacy screens of obscure glass at each end there is still an opportunity for people standing on the rear deck to talk and gather at the side boundaries of the deck and overlook the adjoining properties. The opportunity to use the rear terrace in wet weather is provided by the extended roof and as Mr Nash stated this means additional noise and amenity impacts for the neighbours particularly the residents of the townhouse number 4 on the eastern boundary. I did not observe any other elevated rear deck with a concrete slab roof in the immediate locality. It is in my opinion out of character with the surrounding properties in the locality.

18 I agree with the council officer's assessment that approval of this aspect of the development is not consistent with the Zone 4 - Local Housing objective because it does not "ensure the character of the zone, as one comprised predominately of dwelling houses, is not diminished by the cumulative impacts of development." Based on the evidence before me, it could not be said that the character of the zone is not diminished by the cumulative impacts of development on this site. The additional roof to the rear deck increases the dwelling's bulk so that it is not of a "scale and nature which preserves the neighbourhood character of the zone."

19 The bulk at the rear of the dwelling is exacerbated by the extension of this concrete slab roof and support columns. These modifications to the dwelling do not ensure that the development enhances or integrates into the existing character of the neighbourhood. None of the adjoining properties has a rear deck at this elevation or of this proportion and the extended roof only adds to and compounds the approved bulk. The adjoining townhouse number 4 on the eastern boundary has living room and bedroom windows, which look onto the rear deck. That town houses' proximity to the site side boundary means that any entertaining on the rear deck will be audible in that town house and visible from the living room and bedroom windows and outdoor areas. In an effort to ensure some visual privacy and amenity to that neighbour in particular, I cannot approve the extended roof slab and support columns. I agree with Mr Nash's evidence at 2.1.19 of exhibit B that "the roof results in considerable additional bulk". Mr Nash prefers removal of 3 m of the 4 m wide concrete roof to the rear deck in order for the awning to match that reflected on the approved plans, that is a 1 m canopy over the rear deck. He suggests that the depth of the retained canopy is to be 200 mm as built and not the 700 mm as approved originally. Mr Nash is also of the opinion that the masonry columns on the rear first floor deck should also be removed. I accept Mr Nash's assessment and do not approve the extended roof or the supporting columns as built but approve the form articulated by Mr Nash. I note Mr Mead agrees that the removal of the extended roof over the terrace will result in reduction of bulk although he does not agree it is necessary.

20 In coming to this decision I have not considered any structural problems that may be associated with the removal of the extended roof because that matter is not relevant in this modification appeal.

1. This s 96 appeal was upheld but included the following condition:

This modification does not approve the northern 3 m extension of the roof slab and supporting columns over the rear balcony, which was not approved in the development consent as originally granted.

Amenity impacts

1. This issue concerns privacy, aural and visual impacts, particularly due to the likely increased use of the covered balcony. In terms of the privacy concerns, Mr Nash acknowledges that the approved 1,600 mm privacy screens are satisfactory for the existing approval. However he says that with the balcony being covered, this will likely change the character of the balcony area likely increase the usage and potential privacy impacts on neighbours.

1. He does not consider the placement of the 2 m wide planter boxes will effectively reduce privacy impacts, particularly from increased usage. Instead he says that there would be increased privacy impacts on No 211/213. In this regard he relies on the following Super Studio v Waverley Council [2004] NSWLEC 91 planning principle:

Planning principles

5 Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace e would be acceptable only if its impact were minor or negligible.

6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens

7 The third principle relates to the extent to which an approval for this application would be used as a precedent in favour of approving other applications for roof terraces. The possibility that an approval may constitute a precedent has not been a factor in my decision. Other roof terraces would have different impacts from those of the current proposal.

1. It is Mr Nash's opinion that the removal of the 3 m roof extension over the balcony will limit its likely use for entertainment purposes and thereby minimise the likelihood of adverse amenity impacts on neighbours. In the circumstances he supports the previous assessment of Commissioner Dixon and considers this BC should be refused.

1. Against this, Mr Hammoud supports the application on the basis that it promotes the orderly and economic use and development of land pursuant to the objectives of the EP & A Act, particularly taking into consideration the additional planter boxes proposed to mitigate the amenity impacts on neighbours. In any case, he says that the development was approved with 1.6 m high privacy screens along the eastern and western sides of the balcony and there are no changes proposed to these approved privacy screens, which will adversely affect the overlooking impacts and visual intrusion impacts for the neighbours.

1. With regard to any increase in usage, Mr Hammoud reviewed the rainfall records between 1 January 2009 to 22 August 2013 and found that a total of 183 out of 1,695 days (10.8%) received rain with rainfalls of over 8 mm. He assumed the value 8 mm of rain to be a level at which the balcony (without roof cover) would not be used. Over the five-year period, he estimated that the roof over the terrace presents an opportunity for the terrace to be used for between 8.5% to 12.82% more than if it was to remain unroofed.

1. He considers this to be extremely minor in quantitative terms and the associated impacts during the average additional days are considered to be insignificant. He then acknowledges that other factors would also determine the useability of the roofed terrace during rainfall periods including the temperature and general atmosphere created by the weather conditions. These factors may also play a natural role in deterring the use of the terrace during periods of rainfall even if a roof was provided over it.

1. Consequently, Mr Hammoud says that if the roof extension was retained and this enabled the use of the terrace during rainy weather, this would have limited impacts on the immediately adjoining properties at Nos 211-213 and 217 Loftus Avenue. None of the dwellings in the adjoining property at 211-213 Loftus Avenue have a sheltered outdoor area that directly faces the balcony that would be capable of being used in such weather conditions. Therefore, it is likely that the residents of those dwellings would be inside the dwellings or out of view from the subject terrace thereby eliminating any potential for privacy or amenity impacts. The dwelling house at 217 Loftus Avenue has a covered outdoor area at the rear of the dwelling that is directly in line with the subject terrace. In the event of adverse weather, residents of that dwelling could use the covered area, which will not be visible from the terrace given that privacy screens will be installed upon.

Visual impact

1. The next contention concerns the visual impacts of the roof extension. The planners initially agree that the following SSDCP controls are relevant and must be considered before granting consent:

• It has been designed to be compatible with its topography and setting.
• It is compatible with the scale of neighbouring development.
• It protects the amenity of residents in its vicinity.

1. Likewise the aims of the plan are to be considered and they include:

• to establish a broad planning framework for controlling development, minimising adverse impacts of development, protecting areas from inappropriate development and promoting a high standard of urban design
• to protect and enhance the amenity of residents, workers and visitors in all localities throughout Sutherland Shire.

1. Mr Nash does not consider the extended roof satisfies these controls because:

• The roof over the first floor terrace at the rear and the brick and concrete support columns add substantially to the bulk and scale of the building when viewed from the rear yards of 211-213 Loftus Avenue and 217 Loftus Avenue.
• It increases the visual dominance of the building when viewed from adjoining residences;
• It removes the articulation of the northern, eastern and western elevations of the building approved by Council under DA10/0119;
• It contributes to adverse amenity impacts on its neighbours in terms of overshadowing, overlooking and visual dominance contrary to the urban design principles in Clause 49(b) and (e) of the Sutherland LEP 2006, the design principles in 1.a(1)(c) and (e) of the Sutherland DCP 2006 and the aims 1.2(2)(b) and (c) of the Amended Draft Sutherland LEP 2013.

1. Against this Mr Hammoud's opinion is that whilst the roof over the first floor terrace and supporting columns at the rear add to the bulk and scale of the building, the increased bulk and scale is only readily visible from the rear of the subject site and the adjoining properties at 211-213 Loftus Avenue and 217 Loftus Avenue. As the building is visible through dense vegetation from properties to the north of the site, the bulk and scale impacts to those properties are not considered significant. The additional bulk and scale is not visible from the public domain and therefore the impacts asserted are based on the impacts on individuals from within their private properties. The degree of impact that the additional bulk and scale has on an individual is subjective and does not warrant refusal of the application.

1. Insofar as he agrees that the building appears visually dominant when viewed from adjoining properties, it is his view that this is largely attributed to by the overall approved built form which is significantly greater than the adjoining properties that mainly comprise old building stock. Consequently, it is inevitable that a new building of this size will appear as visually dominant when viewed in context with the older adjoining buildings.

1. Furthermore, he says that the building provides an appropriate transition in scale between the smaller scale old detached dwelling house on 217 Loftus Avenue and the higher density larger scale two-storey townhouse buildings on 211-213 Loftus Avenue. It is then unreasonable to have regard to the impact of the bulk and scale of the subject building from a single unit within the townhouse complex at 211-213 Loftus Avenue, as the bulk and scale relationship is better appreciated having regard to the overall built form in the entire complex.

Engineering

1. The engineering issue concerns the adequacy of structural certification of the overall building, of which the roof slab is a significant structural component. Both engineers presented individual reports based on the available certification and reference to Cardno Engineering report dated 29 November 2012 and then a joint report.

1. Mr Pepper identified a number of inconsistencies between the constructed building and the structural design drawings, which results in his opinion that the roof slab may not perform as intended by the designer. If demolition of the roof slab was required, he says that demolition of the rear 3 m section is achievable with conventional demolition techniques. Appropriate demolition practices (in accordance with Australia Standard 2601) and the provision of propping support to the building structure at all levels would be required.

1. From his assessment of the available documentation, Mr Zaioor says that the slab over the rear balcony has been constructed in accordance with the design drawings, which consist of reinforcement bars for slab, beams and columns. The steel columns are tied up with the reinforcing bars within the slab. Therefore he considers the existing structure is safe, stable and able to support all loads specified in AS 1170.1 & 2 (Loading Code).

1. With regard to council's requirement that approximately 3m of the rearmost roof slab be cut and removed, he says that upon removing this slab, the required existing negative reinforcement is not sufficient to support the altered sawn structure. The building will therefore not be in compliance with AS 3600 (Concrete Structures). Furthermore, long term cracking in the slab will be the inevitable consequence of cutting and removing the rearmost 3.1 m of roof slab.

1. However, some further structural details were apparently presented for consideration in the joint engineering conference, resulting in the following agreement points:

• the submitted structural certification is inadequate and full structural certification is required for the completed structure.
• the existing rear concrete roof slab structure is stable with no apparent cracking to the roof slab
• the demolition process would be possible with appropriate engineering and specialist contractors completing the works with care to minimise risk to the structure.
• the existing concrete structural columns on the western elevation and additional structural support columns are required to modify the unsupported opening at the rear roof slab of the dwelling.
• a risk exists for minor cracking to the roof slab due to changes in the overall structure as a result of the demolition which would need to be investigated and controlled.
• that adequate concrete slab steel reinforcement strength exists to support a 1.2 metre cantilever overhang.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view I do not consider this Building Certificate application merits consent for the following reasons.

1. The subject lot is one of a few larger lots in this immediate neighbourhood and it has a fall of approximately 1 m from the front street boundary to the rear boundary. Consequently this has enabled the large two-storey dwelling to be approved. However the form of the dwelling includes reinforced concrete columns and slabs, with the ground floor slab being approximately 1.2 m above natural ground level adjacent to the front alignment of the neighbouring dwelling, which is located towards the back of its allotment.

1. It is then apparent to me from the view that the new dwelling appears as a significantly large and bulky building, notwithstanding the existing (partially deciduous) vegetation on the adjoining properties at 211/213 Loftus Avenue. Furthermore, the approved rear balcony with an area of approximately 54 sq m is also relatively large in the context of the dwellings in this neighbourhood. Even with the installation of the 2 m wide planters, the overall width of the enclosed balcony and supporting piers is dominating in my opinion and does not protect or enhance the visual amenity of neighbouring properties.

1. In response to the other issues concerning adverse amenity impacts on the neighbouring properties, I have considered the evidence on the likely use of the large balcony, in the subject context. Firstly, I accept the planner's evidence that the approved 1,600 mm side privacy screens should mitigate overlooking and aural impacts to a reasonable extent, based on the usage of the approved uncovered balcony. However, I then accept Mr Nash's evidence that the extended slab will likely lead to significantly increased use of the balcony with consequential decrease in neighbours' amenity.

1. In this regard I have considered Mr Hammoud's investigation of rainfall records for the area, which leads to his conclusion that the extended roof would only present opportunities for the subject balcony to be used between 8.5 - 12.82% more than if the balcony was left unroofed. Whilst I have some difficulty in accepting this approach. I also think his justification that because the neighbouring properties do not have similar sheltered outdoor areas that face the subject balcony, then they will be inside and unaffected by usage of the large balcony activities, does not result in a reasonable balancing of amenity outcomes.

1. Instead, it appears to me that the way the subject dwelling is configured indicates the likelihood of increased usage with the covered balcony. There is a large entertainment room adjacent to the balcony, to which it is connected via a 2.4 m wide hallway. Also connected to this hallway is a "hot bar", which Mr Hammoud indicated could contain a fridge, microwave so as to allow for food preparation and service. On the eastern side of the dwelling is a bedroom that has a 3.6m wide doorway onto the balcony and this room is connected to an ensuite and laundry. Consequently, I do not consider the balcony is a conventional low-use balcony off the bedrooms.

1. Apart from this internal configuration, I note that provision has been made for extensive lighting of the extended balcony ceiling and various cabling and services installed that could also facilitate increased usage of the balcony. Taking into consideration that the elevated balcony enjoys favourable views towards the city skyline, I am satisfied to rely on the opinion of Mr Nash that the extended roof over the balcony will make it more attractive and increase its usage. In the circumstances then, I consider the privacy and aural amenity of the adjoining properties would be adversely impacted.

1. As noted, the ground floor of the constructed dwelling is about 1.2m above NGL adjacent the rear dwelling at 213 Loftus Avenue. Accordingly, my assessment of the visual impact is that the retention of the extended roof slab, supporting piers/column and side screens significantly intensifies the bulk and scale presentation of the dwelling to the neighbouring properties.

1. In this regard, I rely on Mr Nash's opinion that the building elevation is not adequately articulated and does not step down so as to follow the natural contour of the land. The removal of the subject 3 m roof slab extension, as approved achieves this objective more satisfactorily. In my assessment, the retention of the extended slab exacerbates the bulk and scale of the dwelling resulting in negative visual impacts of the proposal.

1. In this regard, I have considered the previous assessment of the similar s 96 modification application by Commissioner Dixon as a circumstance of the case and agree with her assessment that the retention of the built roof form, when viewed from the rear, "is out of scale with adjoining built form." Insofar as the neighbourhood is undergoing some redevelopment, nevertheless newer residential development such as 211/213 Loftus Ave is of a noticeably smaller scale than the subject building. Considering then the context of adjoining and nearby dwellings, I give diminished weight to the applicant's submissions that the increased visual bulk is acceptable because it cannot be readily observed from the street.

1. Apart from the failure of this application on the planning issues, I am also not satisfied the applicant has adequately addressed the structural engineering issues. As noted in the joint engineering report, the submitted structural certification is inadequate and that full certification is required for the completed structure. I agree with this conclusion because the simple certification statement by Mr Alagha (Exhibit E) seriously lacks detail in my assessment. Accordingly, I do not consider it appropriate to issue a building certificate for only part of the roof slab, which has not been properly certified.

1. Insofar as this application is for a partial building certificate for the roof slab extension and supporting structure, the issue of such certificate would according to s 149E (2):

(2) A building certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate: (my emphasis)

(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

(c) in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

1. With reference then to s 149D1(b), I am satisfied that there is such a matter, being the structural adequacy of the dwelling that could prevent the issue of a Building Certificate. Furthermore, Council is taking further action pursuant to s 123 of the EP & A Act as stated in the existing Summons in Exhibit 8. This action includes:

An order that the Second Respondent demolish and remove the last 3 m of the first floor rear balcony roof and supporting columns within 3 months.

1. Accordingly, I think considerable weight should be given to these ongoing proceedings and therefore I do not consider it appropriate to approve a Building Certificate for a relatively small part of the integral roof slab whose structural integrity has not been completely documented and properly certified at this stage.

Court orders

1. The Court orders that:

(1)   The appeal is dismissed.

(2)   The application for a partial Building Certificate (BC 12/0089) for the 3 m extension of the roof slab over the rear balcony and supporting columns at 215 Loftus Avenue, Loftus is refused.

(3)   The exhibits may be returned except for 1, 2, 3, 4, 8, A, B, C and E.

R Hussey

Commissioner of the Court

Decision last updated: 24 September 2013