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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWLEC 1177
Decision Date: 24 September 2013

CaseChat Overview and Summary

The respondents, Sud, sought leave to appeal against the decision of the Local Court, which dismissed their application for a partial building certificate in respect of a proposed roof slab extension over the rear balcony of their property located at 215 Loftus Avenue, Loftus. The appeal was heard by the Local Court presided over by Adams J. The appellants, Sutherland Shire Council, opposed the appeal and application. The primary issue before the court was whether the proposed roof slab extension was in accordance with the approved plans and whether it complied with the relevant planning and building regulations. The court had to determine whether the respondents had provided sufficient evidence to support their application and whether the proposed extension was consistent with the approved plans.

The court found that the proposed roof slab extension was not in accordance with the approved plans and did not comply with the relevant planning and building regulations. The respondents had failed to provide sufficient evidence to support their application, and the proposed extension was inconsistent with the approved plans. The court held that the proposed extension would result in a significant change to the appearance of the property and would have a detrimental effect on the overall aesthetics of the area. The court also noted that the respondents had not obtained the necessary consents from the relevant authorities before commencing the works. The court dismissed the appeal and refused the application for a partial building certificate.

The court further ordered that the exhibits may be returned except for 1, 2, 3, 4, 8, A, B, C and E. The respondents were also ordered to pay the costs of the appeal. The court held that the respondents had acted unreasonably in pursuing the appeal and had caused unnecessary expense to the appellants. The court emphasised the importance of obtaining the necessary consents and complying with the relevant planning and building regulations before commencing any works on a property. The court's decision serves as a reminder to property owners of the importance of adhering to the approved plans and obtaining the necessary approvals before commencing any works on their property.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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