Tuck and Anor v Hornsby Shire Council

[2007] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION:

Tuck and Anor v Hornsby Shire Council [2007] NSWLEC 244

PARTIES:

APPLICANT
Phillip John Tuck and Nicola Helen Tuck

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10069 of 2007

CORAM:

Hussey C

KEY ISSUES:

Section 121B Order :- reduce height of swimming pool deck, no approval, amenity impacts on neighbours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

01/05/2007

EX TEMPORE JUDGMENT DATE:

1 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tuck, litigant in person

RESPONDENT
Mr T. Pickup, solicitor
of Storey and Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

1 May 2007

10069 of 2007 Phillip John Tuck and Nicola Helen Tuck v Hornsby Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal was lodged against a s121 B Order requiring the reduction in height of a timber pool deck adjacent to a recently constructed swimming pool at 10 Lloyd Wright Way, Beecroft.

The Order required:

1. The height of the deck shall be reduced to the approved level as shown the plan by ‘The Garden Clinic’ dated 23.03.06. The approved level of the deck is the same level as the paved terrace which was existing prior submission of DA/1792/2005.

2 At today's hearing, evidence was presented by:

• Mr & Mrs Tuck, owners of No 10 Lloyd Wright Way,
• Ms K Fomiatti, building surveyor,
• Mr & Mrs Fogarty, neighbours at 8 Lloyd Wright Way,
• Mr & Mrs Willis, neighbours at the back (west) of the property.

The Evidence.

3 The parties initially referred the Court to various documents and plans, from which Mr and Mrs Tuck understood they had obtained consent for the elevated deck and therefore the appeal should be dismissed.

4 In my assessment of the evidence, it appears that a development application was lodged for ‘the construction of an in-ground swimming pool’. This application was granted conditional development consent on 30 March 2006 (DA/1792/2005). The approved plan shows the location of the swimming pool, the perimeter safety fence and a timber deck. The consent also included a landscape plan by “The Garden Clinic”, which shows the deck location. The consent included the following conditions:.

1 3. The natural ground levels of private open space areas are not to be altered unless otherwise indicated on the approved plans.
14. To ensure an appropriate level of privacy is maintained to the adjoining premises, No 10 Lloyd Wright Way, a lattice fence extension (or similar screen) shall be provided on the boundary fence to a height of 500 mm, as agreed to by the owners of No 10 Lloyd Wright Way.

5 Subsequently an application for a Construction Certificate for these works was sought. The Construction Certificate was granted (CC/1220/2005) by Council on 30/3/2006 for a development described as an “in-ground swimming pool”. The deck was not shown on the construction Certificate plans.

6 The construction works then proceeded on the basis that the property owners thought that approval had been given to the elevated deck. They relied on numerous enquiries to various Council officers and on this basis, presumed the Construction Certificate covered the deck construction.

7 Further inspections of the constructed deck by Council has resulted in the aforementioned Order requiring the reduction in height of the deck within 30 days for the following reasons:

"This Order is given for the reason that the deck has not been erected in accordance with the building consent in terms of height and configuration and this modification is directly impacting upon the privacy and amenity of the properties."

8 Mr and Mrs Fogarty expressed their concerns that the existing height of the deck adversely impacts on their privacy because users of the deck can view directly into their dining area. They do not consider that the 500 mm sections of lattice on the boundary fence are in accordance with the agreement referred to in Condition 14.

9 Mr and Mrs Willis said that they did not initially object to the swimming pool because they thought the 5 m setback to their common boundary would maintain acceptable privacy, which has been a longstanding concern for them with this new residential development. However, the constructed deck is much higher than they envisaged and they now consider the overlooking opportunities significantly reduce their privacy and value of their property.

Findings.

10 From my consideration of the evidence and the various submissions from the parties, the threshold issue concerns the extent of the approved works, particularly with timber deck. There is no dispute about the pool and its levels, which is approximately 700 mm above natural ground level at a point in designated “E” on Amendment “A” plan – Attachment ‘A’.

11 There is also development consent for a separate deck, as shown in the landscape plan at Attachment “A”. I accept that Mrs Tuck sought clarification of the extent of the deck works and various assurances were apparently given by Council officers. However, council now says that the extent of the constructed works was not approved in the Construction Certificate.

12 Reference to this landscape plan indicates to me that the timber deck is attached to the paved terrace and there are no steps shown on the south-eastern (Point C) corner. In the absence of specific finished levels for the deck, I interpret the proposed deck level to be the same as the paved terrace.

13 This landscaping plan also shows a 750 mm separation of the timber deck from the pool coping, which could reasonably accommodate a landscaped step down to a lower level deck. Such stepping would be more consistent with the pool approval allowing a 700 mm (approximately) protrusion above natural ground level. This is consistent with the neighbours, Mr and Mrs Fogarty’s understanding of the proposal.

14 This stepping down would also be more consistent with the provisions of Council's DCP - Dwelling House, wherein the Design Element including the following performance criteria:

The design of building should be sympathetic to topographical constraints and other natural features of the land, including trees and bushland.

15 The associated Prescriptive Measures provide for:

The design of dwelling houses should relate to the slope of the land to minimise earthworks and disturbance to the land (cut and fill) and to contribute to the reduction of the waste stream by reducing land fill. Dwelling houses should be designed with a maximum cut or fill of 1 m from natural ground level.

16 In this regard, I accept council submissions that these provisions apply to ancillary structures such as pool decks, as well as dwelling houses. However the constructed deck is in the order of 1.4 m above natural ground level at Point D, which it is approximately 1.2 m from common boundary with No 8.

17 In my opinion, this elevated deck in close proximity to the neighbouring property allows unreasonable overlooking and loss of privacy for the residents of No 8, notwithstanding the provision of the Lillypillys, which mitigate this concern to some extent. I also consider that the elevated deck reduces privacy to the near area of Mr and Mrs Willis's property to an unreasonable extent.

18 Following the consideration of the various submissions, I note that there has been further conferencing between the respective parties resulting in an agreement that the timber deck should be removed in the area in designated ABCD on the plan in Attachment “A” and that the gate is to be relocated near the Point B. Also supplementary conditions be imposed requiring the maintenance of the Lillypilly hedge to a height of 3 m to provide reasonable privacy to No 8, together with the maintenance of screening pot plants at point A, until the hedge has reached the 3 m height.

19 In the ultimate then, I am satisfied that the removal of the aforementioned section of deck represents a reasonable balance between the personal benefits and amenity of the property owners and the other public interest consideration of the privacy and amenity of the neighbouring properties. I also consider this compromise position demonstrates better compliance and acceptability with the provisions of the height provisions of the DCP, whereby the existing on deck which is in part 1.4 m above natural ground level is unacceptable in this context, in my assessment.

1 The appeal is allowed in part.

2 The timber section of deck ABCD is to be removed within a period of 90 days. The remaining deck to be fenced along AB as shown in Attachment “A”.

3 The existing Lillypilly hedge adjacent to No. 8 Lloyd Wright Way, is to be maintained to a height of 3 m and until such time as this is achieved screening pot plants are to be maintained adjacent to Point A. The existing lattice atop the boundary fence is to be removed. All work is to be completed within a period of 90 days.
4 The exhibits be returned except Exhibit 1.

___________________

R Hussey
Commissioner of the Court
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