> Land and Environment Court of New South Wales CITATION : Jordan v North Sydney Council [2003] NSWLEC 438 APPLICANT Joseph Francis Jordan PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10824 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- proposed new roof and extension of garage - building height plane - no significant loss of views or overshadowing for adjoining neighbour LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 State Environmental Planning Policy No. 1 - Development Standards CASES CITED: DATES OF HEARING: 10 November 2003 EX TEMPORE JUDGMENT DATE : 11/10/2003 APPLICANT Ms S Duggan, barrister SOLICITORS Spiegel & Associates Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr M Causer, solicitor SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10824 of 2003 Nott C 10 November 2003 Joseph Francis Jordan Applicant v North Sydney Council Respondent Reasons for Judgment 1. This is an appeal against the council's refusal of a development application to erect a new roof on an existing building at 50 Hayberry Street, Crows Nest. The proposal can be seen in the plan numbered DA 01A. The garage which is proposed to be erected with its new roof is about 4.6 m wide internally. The building extends from the rear lane of Hayberry Lane for a distance of about 9.6 m and at the rear of the garage a storeroom is proposed. The existing walls will in large part be retained. In particular, the western wall which adjoins the common boundary with No 48 Hayberry Street will in fact be reduced in height, and from the reduced height the new roof will spring. This roof as originally proposed was a hipped roof on the western and eastern sides but had gable ends facing the lane (which is the northern end of the garage) and at the southern end. 2. During the course of the hearing it became apparent that there would be some improvement as regards the amenity of the adjoining property at No. 48 if the southern gable was deleted and replaced with a hip. The applicant amended the application to provide for a hip roof at the southern end. 3. I heard evidence from Mr J Nangle, consultant town planner for the applicant, and Mr R Smyth, consultant town planner for the council, and I also heard evidence from Mrs J Cleave who resides at No. 48. I have taken into account also the written material that has been tendered including a report to the council by council officers recommending the upholding of an objection under State Environmental Planning Policy No. 1–Development Standards and the granting of development consent subject to certain conditions. 4. In relation to the amenity of the adjoining neighbour at No.48, I find that there will be no material loss of views occasioned by the non-complying northern gable, insofar as it does not comply with the building height plane contained in cl 18 of the North Sydney Local Environmental Plan 2001. Likewise, in respect of overshadowing, it is agreed now that there will be no increase in overshadowing occasioned by the proposed roof form, because of the amendment that was made during the course of this hearing, namely the creation of a hip at the southern end of the roof. 5. I also have to consider the application generally under s 79C of the Environmental Planning and Assessment Act 1979. I do accept that there will be some small degree of loss of sky view underneath the boughs of a large tree on the opposite side of the rear lane. However, notwithstanding the fact that there will be, in the opinion of the adjoining neighbour, some canyoning effect, it seems to me that there would be some advantage for the locality in having a new roof of the kind now proposed constructed. In all the circumstances, I do not consider that the loss of sky view is of such a degree that it would warrant the refusal of the application. I agree that the objection of SEPP 1 should be upheld for the reasons given by Mr Nangle, and that it would be unnecessary that there be compliance with the development standard relating to the building height plan insofar as there is a breach at the northern or lane elevation of the garage. 6. The council's heritage officer considered the proposal. Taking into account the diverse forms of structures in the rear lane, I agree with the opinion of the heritage officer that notwithstanding that the subject site is in a conservation area, the proposed structure will be satisfactory in its context. In coming to this view I have had regard to those provisions of Development Control Plan 2002 that were referred to me by the parties. 7. Having considered all the evidence and submissions I am of the opinion, as I indicated earlier, that the objection under SEPP 1 should be upheld and that the appeal be allowed subject to the conditions which have been agreed to by the parties. 8. Accordingly the orders of the Court are: 1. The appeal is allowed. 2. Development consent is granted for alterations and additions to the rear building at 50 Hayberry Street, Crows Nest, subject to the conditions in Annexure A hereto. 3. The exhibits, other than exhibits A, 4 and C, may be returned. ___________ A J Nott Commissioner of the Court mp ANNEXURE A CONDITIONS OF DEVELOPMENT CONSENT 50 HAYBERRY STREET, CROWS NEST BUILDING CODE OF AUSTRALIA CLASSIFICATION: Class 10 A. Conditions that Identify Approved Plans Development in Accordance with Plans A1. The development being carried out in accordance with drawings numbered 01a dated 22 March 2002 drawn by DRE Design except where amended by the following conditions. (Reason: Statutory) Plans on Site A2. A copy of all approved certified plans, specifications and documents incorporating conditions of approval certification shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority. (Reason: To ensure compliance with approved plans) C. Conditions that Require Subsidiary Matters to be Completed to Satisfaction of Council or Accredited Certifier Prior to Issue of a Construction Certificate Damage to Adjoining Properties C1. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights must be observed at all times. Where damage occurs to adjoining property all necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the occupation of the development or issue of a building certificate. (Reason: Structural Safety) Asbestos Conditions C2. A survey of the existing building fabric shall be undertaken identifying the presence or otherwise of asbestos contamination. Any works subsequently required to address asbestos contamination shall be undertaken in strict accordance with the requirements of the WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and the Work Safe Australia Asbestos Code of Practice and detailed in the Construction Certificate. (Reason: Health and Safety) Roof Materials C3. The proposed concrete roof tile specified for the roof cladding shall be deleted and replaced by a terracotta tile or colorbond roof sheeting of traditional colouring to complement the Conservation Area (i.e. Heritage Red, Brunswick Green or the like). Details of the proposed materials shall be to the satisfaction of Council or an Accredited Certifier and shall be submitted prior to the release of the Construction Certificate. (Reason: Heritage conservation) D. Conditions That Must Be Complied With Prior To Any Demolition Prohibition on Use of Pavements D1. Building materials shall not be placed on Council's footpaths, road ways, parks or grass verges and a suitable sign to this effect shall be erected adjacent to the street alignment. (Reason: Safety and Access) Plant & Equipment D2. All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc, shall be situated within the boundaries of the site and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site. (Reason: Protection of the Environmental Health and Safety) Excavation/Demolition D3. No demolition or excavation shall be carried out until a Construction Certificate has been issued. (Reason: Information/Statutory/Structural safety) Inspection Fees D4. Where Council is acting as the Principal Certifying Authority and where an inspection of building, civil or landscape work is required by these conditions, inspection fees and component certification fees must be paid to Council before Council will undertake any inspections. These fees may be paid at the time of submission of the required Notice of Commencement of works (Form 7). This condition applies regardless of whether a Compliance Certificate fee is also payable. NOTE : The submission of a 'Form 7' to Council is a statutory requirement prior to the commencement of any works on site. (Reason: Compliance with Section 608 (6) of the Local Government Act 1993) E. Conditions that Must be Complied With During Demolition and Building Work Cigarette Butt Receptacle E1. That provision be made for cigarette butt receptacles on the site to minimise littering. (Reason: Environment Protection) Progress Inspections E2. Council or the Principal Certifying Authority SHALL BE given forty eight (48) hours notice for inspection of the following: (a) On completion of building works. Notes: 1. The appointed Principal Certifying Authority has a discretion to determine additional inspections which are required to ensure compliance or otherwise with relevant codes and standards. 2. Where North Sydney Council is acting as the Principal Certifying Authority for the project, notice is to be given by telephone to the Inspection Services Administration Officer and an appointment made for the relevant inspection. (Reason: Compliance, Health and Safety) 'Final' Compliance Certificate E3. Within seven (7) days of completion of the building works a Certificate of Compliance under Section 109C (1) (a) of the Environmental Planning and Assessment Act 1979 must be provided by the Principal Certifying Authority. This Compliance Certificate must certify that the completed work complies with the relevant Plans and Specifications and with the following conditions of this development consent: A1 and F1. (Reason: Statutory) Hazardous Materials E4. Unless tested by a person with suitable experience and expertise and shown to be otherwise, buildings constructed before 1970 are assumed to: · Have accumulated hazardous amounts of fine lead dust in ceiling and wall cavities; and · Contain components and surfaces coated with lead paint. Appropriate measures to minimise hazards and contamination from lead are to be implemented. (Reason: Lead-safe Demolition) Special Permits E5. Unless otherwise specifically approved by Council, all works, processes, storage of materials, loading and unloading associated with the development, are to occur entirely on the property. The applicant, owner or builder must apply for specific permits available from Council's Customer Service Unit for the undermentioned activities on Council's property pursuant to S138 of the Roads Act. A minimum of forty-eight (48) hours notice is required for any permit:- (1) On-street mobile plant Eg. cranes, concrete pumps, cherry-pickers, etc. - restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the applicants, owners and builders responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owners rights. (Reason: Safety) (2) Hoardings Permits are required to erect Class A and Class B hoardings. If an 'A' Class hoarding is to alienate a section of Council's property, that section will require a permit for the occupation of Council's property. (Reason: Safety) (3) Storage of building materials and building waste containers (skips) on Council's property Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given. (Reason: Safety) (4) Kerbside restrictions, construction zones The applicant's attention is drawn to the existing kerbside restrictions adjacent to the development. Should the applicant require alteration of existing kerbside restrictions, or the provision of a construction zone, the appropriate application must be made and the fee paid. Applicants should note that the alternatives of such restrictions may require referral to Council's Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs. (Reason: Safety) Construction Hours E6. Building construction shall be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays. Demolition and excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site). The builder and excavator shall display, on-site, their twenty-four (24) hour contact telephone number which is to be clearly visible and legible from any public place adjoining the site. (Reason: Amenity, Health and Safety) Asbestos Conditions E7. All asbestos must be removed by a licensed asbestos contractor in compliance with the Work Safe Australia Asbestos Code of Practice and guidance notes. (Reason: Health and Safety) F. Conditions Prescribed Under 80a(11) of EP&A Act 1979 and Clause 78 of EP&A Regulations 1998 Building Code of Australia F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia. (Reason: Prescribed - Statutory) Home Building Act F2. (1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority for the development to which the work relates: (a) in the case of work to be done by a licensee under that Act: (i) has been informed in writing of the licensee's name and contractor licence number, and (ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or (b) in the case of work to be done by any other person: (i) has been informed in writing of the person's name and owner-builder permit number, or (ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs. Note : The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary. (2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (Reason: Prescribed - Statutory) Excavation/Demolition F3. (1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. (2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. (Reason: Prescribed - Statutory) Site Sign F4. (1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: (a) stating that unauthorised entry to the work site is prohibited, and (b) showing the name of the owner of the premises and of the person in charge of the work site, and a telephone number at which that person may be contacted outside working hours. (2) Any such sign is to be removed when the work has been completed. (3) This clause does not apply to: (a) building work carried out inside an existing building, or (b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. (Reason: Prescribed - Statutory) Toilets F5. (1) Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. (2) Each toilet provided: (a) must be a standard flushing toilet, and (b) must be connected: (i) to a public sewer; or (ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or (iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council. (3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced. (4) In this clause: accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Regulation. approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993. public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993. sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993. (Reason: Prescribed - Statutory) G. Conditions which Must be Complied With Prior to Issue of Occupation Certificate Certification G1. An appropriately qualified person shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with the consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification. (Reason: Compliance with the Consent ) I. On-going Conditions that Must be Complied with at All Times Use I1. Nothing in this consent shall authorise the use of the premises other than for the purpose nominated in the plans identified in condition A1. (Reason: Compliance) J. Other conditions J1 The southern part of the proposed roof is to be hipped so that the main ridge commences 3 metres from the southern wall. J2 The upper part of the western wall of the proposed garage and storeroom is to be finished with render and painted to match the existing western wall. J3 The design of the proposed roof form along the common wall boundary between the subject site and No 48 Hayberry Street shall be modified to ensure that stormwater run-off from the garage is contained within the subject property, No 50 Hayberry Street. Suitable flashing is to be included between nos.48 and 50 Hayberry Street. This is to be submitted to Council prior to issue of the Construction Certificate. J4 The proposed concrete roof tile specified for the roof cladding shall be deleted and replaced by a terracotta tile or colourbond roof sheeting of traditional colouring to complement the Conservation Area (ie Heritage Red, Brunswick Green or the like). Details of the proposed materials shall be to the satisfaction of Council or an Accredited Certifier and shall be submitted prior to the release of the Construction Certificate. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.