Land and Environment Court of New South Wales CITATION : Ghosn v Kogarah Municipal Council [2004] NSWLEC 510 APPLICANT Gus Ghosn v Kogarah Municipal Council PARTIES : RESPONDENT Kogarah Municipal Council FILE NUMBER(S) : 10469 of 2004 CORAM: Hoffman C KEY ISSUES: Development Consent :- Appeal against conditions of consent - height and bulk on a prominent site - privacy for neighbours - protection of trees on public land LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 26/07/2004 and 11/08/2004 EX TEMPORE 08/11/2004 JUDGMENT DATE : APPLICANT Mr M E Ball, town planner LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 11 August 2004 10469 of 2004 Gus Ghosn v Kogarah Municipal Council JUDGMENT 1 This was a class one appeal No. 10469/2004 between Gus Ghosn and Kogarah Municipal Council in regard to conditions of consent No. 747/03 for a three-storey house at No. 22 Woodlands Avenue, Blakehurst. The site was the last house in the street and was on the headland of Shipwrights Bay above the Georges River. There was a public reserve on the steep slope below the house down to the foreshore. There was a clear view of the site from Tom Ugly's Bridge just a short distance across the bay and also it was seen from Sylvania to the south and parts of Kangaroo Point. 2 The existing house and two angophora trees were to be demolished and a large house had been approved by council on the allotment that was only 641 sq m in area. 3 The Court heard the respondent's evidence from: § Mr N Katris, objector, of No. 15 Woodlands Avenue, a house on the opposite side of the street to the proposal and § Mr K Nash, town planner. 4 The applicant's evidence was heard from: § Mr W Long, town planner. 5 Objections of two other neighbouring and nearby properties were in evidence. 6 The issues as put by the applicant were: 1. Whether Condition 1, (deferred commencement conditions) of the council's approval of 10 May 2004, should be imposed. Particulars: Whether the building as designed and lodged has a bulk, scale and height acceptable within council's planning controls - being the Kogarah Local Environmental Plan , 1998 , (zone objectives), the residential DCP, (height and setback controls) and DCP No. 3 (view from the waterway). 2. Whether Condition 8 (height of building) in the council's approval of 10 May 2004 should be imposed. Particulars: Whether the building as designed and lodged has a bulk, scale and height acceptable within council's `planning controls - being the Kogarah Local Environmental Plan , 1998 , (zone objectives), and Residential DCP, (height and setback controls) and DCP No. 3 (view from the waterway). 7 The applicant was appealing against the deferred commencement Condition 1 Nos. (i) to (v) and general Condition No. 8. They stated: 1. i) that the bar and study room on the lower ground floor be converted to storage area with a floor to ceiling height of 2.3 m and the natural ground level be reinstated along the northern elevation; ii) that the rear of the building on the first floor be set back 8.5 m from the rear boundary for a distance of 15.5 m along the building measured from the north-east corner; iii) the first floor balcony on the front elevation is not to be accessible and fixed obscure glazing is to be used in lieu of the doors that currently open on to the balcony; iv) the windows on the western elevation of bedroom 3 are to be of fixed obscure glazing; and v) a 1.8 m high privacy screen obscure glazing is to be installed in the western elevation of the terrace of bedroom 3. 8 By the end of the hearing, some amended conditions were agreed and others were sought to be amended differently by each party. Condition 1(i) was agreed in part to read as follows: That the natural ground level along the northern side boundary be retained and the proposed stairs be removed. The window to the study be a highlight window with a short retaining wall between the north-east corner past the proposed column to the east with the wall following the natural ground line and about 3 m long. 9 In addition, the respondent pressed that the internal changes of study and bar to become a store room also be required. 10 The Court, having considered the evidence on those matters has found that the applicable control is really related to height and bulk of the building from the exterior and the minimisation of excavation on the site and once those matters are dealt with in the amended condition, there was no need to require the interior layout on that level to be changed as it would not affect the bulk of the development. 11 Condition 1(ii) was agreed to read as follows: Re-design of bedrooms 1 and 2, and that the following amendments to the first floor level be made namely: a) the deletion of the pergola and terrace of bedroom 1; b) the eastern wall of bedrooms 1 and 2 to align with the wall of the meals room and family room below; c) the creation of a 1.5 m-wide balcony off bedroom 1 with a clear glass balustrade to match the terraces below; d) the creation of a 300 mm eave over bedrooms 1 and 2; e) the creation of a 300 mm eave over the meals room below; and (f) the re-design of bedrooms 1 and 2 layout. 12 This generally conformed with amended wall lines to bedrooms 1 and 2 and a balcony to bedroom 1 shown in purple colouring in Exhibit 9. 13 Condition 1(iii) was disputed. The applicant's evidence saw no point in concern over privacy issues for No. 15 Woodlands Avenue, since the house was across the street at about 30 m separation. The respondent's evidence was that the difference in elevation between the balcony and the portal above the front door of the proposal would enable a view down to the swimming pool area of No. 22. Mr Katris was particularly concerned about this and his evidence will be referred to later in this judgment. The applicant wanted this condition deleted. 14 Condition 1(iv) was disputed for similar reasons to the balcony above the front door as bedroom 3 was on the same level and more directly opposite the pool area of No. 22. The applicant wanted this condition deleted. 15 Condition 1(v) was agreed to read as follows: That the proposed false facade to the first floor terrace of bedroom 3 be deleted and a 1.8 m high privacy screen in obscure glazing is to be installed for the full length of the west elevation of the terrace off bedroom 3. 16 Finally, due to the evidence on Condition 1(iii) and Condition 8 and Mr Nash's evidence, the respondent sought a new Condition 1(vi) to read as follows: That the first floor balcony on the western facade and its related columns and parapet and pediment over be deleted. First floor windows and doors to the balcony area are to be amended accordingly with any glazing being fixed and obscure. 17 The applicant disputed that condition. 18 Condition 8 was to do with the grand portal above the front door. It was described by Mr Nash as Classic Revival style whilst the rest of the house facing the water could be described as modern or contemporary style. The applicant said that the council or its staff had never raised a worry about the appropriateness of the design features, they had only raised the question of height. The only part of the building above that height was the huge false lintel of the entry portal. The top of it stood above the rest of the roof by about 450 mm. The applicant sought to allow the lintel to remain as the rest of the roof parapet complied with the height set in Condition 8. 19 The land was zoned Residential 2(a) – (Low Density) under the Kogarah Local Environmental Plan 1998 and it was in the Foreshore Scenic Protection Area that extended back to topographic ridges as seen from the water, and also the site was in the Waterfront Scenic Protection Area because it abutted the foreshore park reservation. Development Control Plan No. 3 Foreshore Development Policy and the Better Design Residential Development Control Plan also applied. 20 Mr Katris' concerns stem partly from extensions to houses of his immediate neighbours. They completely overlooked his backyard and previous swimming pool. He and his wife had spent $150,000 to build the new pool and terrace area on the south side of their house above the foreshore reserve in order to have a relatively private outdoor area. 21 In minimising the bulk of their development they had stepped it downhill towards the foreshore park, but it was about 2 m above the ground on that side to preserve privacy from the park which they said was seldom used by the public. 22 There was a public pathway lower down by the water and it was the one favoured by sightseers and walkers. There was a set of steps near the subject proposal that took people from the end of Woodlands Avenue down into the reserve. 23 The height of the proposal at No. 22, at the upper floor level, was above their pool area and Mr Katris said it meant that from the balcony above the front door, and the windows in bedroom 3 that was also on the top floor, and the south balcony off bedroom 3, persons could look across. Mr Katris feared that they would again lose what little privacy they had even though it was not complete privacy. 24 He noted, as did Mr Nash, that bedroom 3 had extensive windows facing the river to the south so the western windows to the street and across to his pool area were not needed for ventilation, although western light would be additional to the south light. He thought the windows should be obscured or frosted glass and access to the balcony above the front door prevented. He was happy with the outcome of revised Condition 1(v). 25 Mr Nash's evidence and the respondent's submissions were that, although the applicant pressed the AMCORD distance of separation of 9 m was sufficient for privacy, that guideline was for medium density development. This was an expensive detached house, low density area where expectations were higher. 26 The applicant also pressed that trees in the road reserve obstructed views to Mr Katris', and Mr Katris in turn was concerned that the new driveway entry excavation would kill the trees and leave no screening at all. In any case the trees were mostly high canopy trees so it was mainly tree trunks in the view line and it was not a complete screen. 27 The applicant put that the council had a huge monetary bond on the protection of the trees and the excavation was east of their roots, and the trees grew downhill of the excavation anyway, so the roots should be unaffected. 28 On these matters, the Court has concluded that the council imposed Condition 1(iii) and (iv) in pursuit of the objectives of retaining privacy and amenity of neighbours and they did not impose such hardship on the applicant that they were unreasonable. In regard to Condition 1(vi), the Court sees no reason to impose that given the retention of Condition 1(iii). 29 The impact of Condition 8 would have the effect of lowering the entry portal and reducing the bulk of the building to some extent. 30 As Mr Katris observed, the house has a floor space ratio of 1:1 which means it is very big for the small allotment it is on. The council and the applicant's evidence was that the statutes and development control plans had no floor space ratio control. They relied on the height, setback, building envelope, and site coverage controls, to achieve acceptable bulk of houses. 31 The visual impact of this house was significant being on a headland and seen from important public places such as the Princes Highway and the water. Mr Nash's evidence, that led to considerable reduction of the visual impact by revised Condition 1(i), (ii) and (v) as seen from those locations, had been based on the controls which become very important when there is no over-arching limit on size and bulk such as a floor space ratio. 32 If the applicant had not been prepared to amend the design accordingly, the Court may have been minded to refuse the appeal and withdraw the consent altogether due to the important location on the prominent headland. The Court was reminded by the respondent that it has power to do that in a de novo hearing. 33 The Court also noted that the plans drawing DAO3B south elevation showed a balustrade above the driveway excavation that extended from the house across the front setback and on plan about 5 m across the road reserve to the kerb. The applicant assured the Court that the section of existing driveway within the road reservation was not to be changed, reconstructed or altered, and therefore the balustrade is unnecessary and the natural grade of the existing footpath reserve leading down to the driveway crossing can remain. 34 If this was not the case, then the drawings would have indicated that the front setback on the downhill side of the house may have been going to be filled up to the level of the entry path and this would involve covering part of the roots of the substantial street tree just within the front setback of the property. And if the excavation had extended across the existing footpath reserve, it could indeed have affected the roots of the existing trees in the public reserve at that position. 35 However, having had the assurance of the applicant, a suitable condition was added to the deferred commencement Condition 1 of the consent, and the parties agreed on a suitable condition that reads: That the glass balustrade parapet on the northern side of the driveway within the road reserve is to be deleted. A revised south elevation drawing is required: a) reflecting existing ground levels adjoining the driveway and the road reserve, and b) the footpath crossing and driveway within the road reserve is to remain at the existing levels and configuration without change, reconstruction or alteration. 36 Therefore the orders of the Court are: 1) The appeal is upheld in part. 2) Kogarah Municipal Council's Deferred Development Consent No. 747/03 issued on 10 May 2004 in regard to a house at No. 22 Woodlands Avenue, Blakehurst, is hereby amended in accordance with the provisions set out in Annexure A hereto. 3) The exhibits are returned to the parties except for Exhibits 1, 3, 9 and B, C, D and F. ___________________ K G Hoffman Commissioner of the Court rjs Annexure "A" Conditions of Deferred Development Consent Gus Ghosn v Kogarah Council The Development Consent No 747/03 issued on 10 May 2004 by Kogarah Council in regard to a house at No. 22 Woodlands Ave, Blakehurst is amended as follows: Deferred commencement consent conditions Nos 1(i), (ii), (v) are replaced and Condition 1(vi) is added. The Consent conditions are herewith re-issued with the amendments included. The Deferred Commencement Conditions also require amendment of conditions 11 and 12 in Part B. i. Part A That Council, as the Consent Authority, pursuant to Section 80(3) of the Environmental Planning & Assessment Act, 1979, grant Deferred Commencement to Development Application 747/03 for the demolition of existing dwelling & construction of a new three (3) storey dwelling, inground pool, landscaping & retaining wall at 22 Woodlands Avenue, Blakehurst, subject to the following conditions:- ii. Deferred Commencement 1. Pursuant to Section 80(3) of the Environmental Planning and Assessment Act, 1979, this consent will not operate until such time as the following requirements of Council are fulfilled. These requirements are: (i) That the natural ground level along the northern side boundary be retained and the proposed stairs be removed. The window to the study be a highlight window with a short retaining wall between the north-east corner past the proposed column to the east with the wall following the natural ground line and about 3 m long. (ii) Redesign of bedrooms 1 and 2. That the following amendments to the first floor level be made, namely: a) the deletion of the pergola and terrace off bedroom 1. b) the eastern wall of bedrooms 1 and 2 to align with the wall of the meals room and family room below. c) the creation of a 1500mm wide balcony off bedroom 1 with a clear glass balustrade to match terraces below. d) the creation of a 300 mm wide eave over bedrooms 1 and 2. e) the creation of a 300 mm wide eave over the meals room below. f) the redesign of bedrooms 1 and 2 layout. (iii) The first floor balcony on the front elevation is not to be accessible and fixed obscure glazing is to be used in lieu of the doors that currently open on to the balcony. (iv) The windows on the western elevation of bedroom 3 are to be of fixed obscure glazing. (v) That the proposed false façade to the first floor terrace off bedroom 3 be deleted and a 1.8 m high privacy screen (obscure glazing) is to be installed for the full length of the western elevation of the terrace off bedroom 3. (vi) That the glass balustrade/parapet on the northern side of the driveway within the road reserve is to be deleted. A revised south elevation drawing is required: (a) reflecting existing ground levels adjoining the driveway and the road reserve; and (b) the footpath crossing and driveway within the road reserve is to remain at the existing levels and configuration without change, reconstruction or alteration. These conditions remain Deferred Commencement Conditions and require revised plans to the satisfaction of council, to be provided to council within 3 months of the date of the Courts order, failing which, if the Council has not consented in writing to an extension of time, this consent shall be null and void. This Development Consent and The Conditions in Part B do not become operative until the above requirements have been satisfactorily addressed but is legally effective and therefore will expire two (2) years from the date of this notice. iii. Part B iv. Prior to the issue of a Construction Certificate 2. Payment of the following amounts as detailed below: * Road / kerb / footpath damage deposit of $1,730.00 * Builders Long Service Levy of $960.00 * Driveway Design and Inspection Fee of $360.00 * Bond on Tree Fee of $50,000.00 3. A deposit of $50,000.00 in the form of cash, cheque or bank guarantee shall be placed with Council to ensure that the following tree/s is/are maintained in the same condition as found, prior to commencement of the proposed works. The bond will be held by Council for a minimum of 6 months after the Occupation Certificate has been issued. * The Angophoras at the front of the property numbered 1, 2 , 3, 4 and 5 on the submitted landscape plan are to be covered by the deposit. v. Site Specific Conditions 4. Compliance with all applicable requirements of Council's Standard Development Conditions. 5. A 2000litre rainwater tank being installed to Council satisfaction. 6. The following list of inspections should be the minimum number carried out during the course of this development and prior to the issue of any Occupation Certificate: * Erosion and sediment control measures * Earthworks / excavation * Building set out * Concrete reinforcement * Timber and / or steel framework * Wet areas * Stormwater disposal * Work associated with driveways and parking bays, including pavement and finishing * Landscaping work * Pool Fencing * Completion / Final 7. The building finishes are to be constructed in accordance with the colour board and perspective submitted with the Development Application and include the following: * Balustrades, gates, grilles and gutters – Dulux Satin Black * Walls, eaves and fencing – Dulux diamond grey W * Parapet trims and mouldings – Dulux Orchard Haze * Fence capping and decorative column basing – Saw cut sandstone * Cladding, windows and doors – White 8. The overall height of the building shall not exceed RL 25.334m and 24.85m above Australian Height Datum (AHD). This is to be verified as achievable by means of a certificate from a Registered Surveyor at ground floor level and at roof frame before the roof covering is installed. 9. The 2 Angophora costatas (located at the rear), Lemon tree, Bangalow Palm and Jacaranda (located at the rear) and Umbrella tree (located at the side) at 22 Woodlands Avenue, Blakehurst may be removed to accommodate the proposed dwelling. Four indigenous trees are to be planted. The replacement trees/tree should have a pot size of 75 litres. The tree species shall be selected from the Indigenous Trees of Kogarah list. They are to be planted using correct and current horticultural practice. These trees shall be stalked using a minimum of two (2) metres x 50mm x 50mm stakes. Hessian tie or similar to secure the trees. 10. The 9 Angophora Costatas (located at the front and side) Angophora costata (located on side of the driveway, require a Tree Management Plan to preserve the trees), 2 Sapium sp, 2 Bangalow palms (located at the side) at 4 Woodlands Avenue Blakehurst have been nominated for retention shall be preserved and protected during demolition and construction. A protective fence (1.5 metres high) shall be erected around the base of the tree with a minimum distance of 2.5 metres. This fence shall be kept in place during demolition and construction. A layer of organic mulch 100 millimetres thick shall be placed over the protected area and no soil or fill should be placed within the protection area. There shall be no services, underground pipes, etc installed within the drip line of the tree. Excavations around trees to be retained shall be supervised by an experienced arborist to ensure that the root system will not be adversely affected. vi. General Conditions 11. The existing gutter crossing and driveway shall be retained between the kerb and street alignment pursuant to Condition 1(vi) in Part A.. 12. The proposed building is not to be erected at a height greater than that indicated on the approved plan as limited by Condition 8 in Part B. 13. Excavation of the site is to extend only to that area required for building works depicted upon the approved plans. Any rock excavation is to be carried out by plant or hand operated machinery only. All excess excavated material shall be removed from the site. In this regard, all excavated waste materials shall be disposed of at an approved Waste Depot (details are available from Council). 14. Engineer's details prepared by a practising Structural Engineer being used to construct all reinforced concrete work. The details are to be submitted to the Principal Certifying Authority for approval prior to construction of the specified works. 15. Prior to commencement of any site works, erosion and sediment controls are to be installed in accordance with Council's guidelines and any approved Soil & Water Management Plan and shall incorporate: * Measures to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways; * Controls to prevent tracking of sand, soil, aggregates, etc, by vehicles onto adjoining roadways. 16. Fabric silt curtains are to be installed to contain any suspended solids generated during the land reclamation and construction of the proposed sea wall are to be designed to accommodate tidal fluctuations. The silt curtains are to be inspected following every rainfall event and daily inspections must be undertaken during dry weather periods to ensure that they are operating effectively. 17. All roof water and surface water from paved or concreted areas being disposed of to the street gutter by means of a sealed pipeline constructed in accordance with AS/NZS 3500.3.2. The line must pass through a silt arrestor pit, a standard design of which is available from Council. 18. The proposed internal vehicular driveway is to be constructed in accordance with Council's standard gradient requirements and specifications. 19. All surface waters from paved or concrete areas are to be collected and connected to an approved stormwater disposal system. 20. Where the root protection zone of the tree becomes compromised by any excavation works. A qualified and experienced arborist shall be consulted to establish the position of any major roots and determine the necessary measures to protect these roots. The recommendations of the arborist shall be submitted to Council prior to any further demolition or construction works taking place. 21. The proposed swimming pool and/or spa shall be fenced and constructed in accordance with the Swimming Pools Act, 1992 and Council's Code For The Installation Of Swimming Pools For Domestic Use. If required, you may confer with Council for assistance with respect to the location of pool fencing. vii. Demolition Conditions 22. Demolition works being restricted to between the hours of 7 a.m. to 5 p.m. Mondays to Fridays inclusive and 7 a.m. to 1 p.m. Saturdays with NO work being carried out on Sundays or Public Holidays. 23. A Work Cover Licensed Demolisher is to be engaged to carry out any demolition works using mechanical equipment. 24. The provision of temporary fences and footpath crossing pads prior to commencement of demolition operations. Further, no waste materials or bins are to be placed on Council's roadways or footpaths. 25. No waste materials are to be burnt on site. 26. No trees as defined by Council's Tree Preservation Order being removed or damaged on the site without the prior written approval of Council. 27. Underground services may exist in this area. You are advised to contact the NSW Dial Before You Dig Service on 1100 or the relevant statutory authority. 28. Compliance with the provisions of Australian Standard AS 2601-1991:"The Demolition of Structures", which requires a work plan to be submitted to the NSW Workcover Authority for approval prior to commencement of demolition works on site. If the demolisher does not hold a current demolition license. 29. Effective erosion and sediment control measures are to be undertaken during the course of demolition and maintained until the site is stabilised. Failure to implement appropriate measures may result in a $750 Penalty Infringement Notice (individual) and/or $1,500 (corporation) being issued and/or the incurring of a maximum penalty of $250,000 (corporation) or $120,000 (individual) through the Land and Environment Court. 30. Appropriate measures are to be implemented on site to control dust and other air borne matter and demolition material is to be stored and stacked in a manner so as to minimise the risk of damage or nuisance to neighbouring properties. 31. If asbestos or asbestos cement products are encountered during demolition, strict compliance with demolition and disposal procedures for asbestos removal is required to ensure the protection of public health and amenity. A copy of the Asbestos and Asbestos Cement Removal Guidelines is attached. Asbestos removal work involving more than 200m² of asbestos material must only be removed or disturbed by the current holder of a WorkCover demolition or Asbestos licence. 32. Council being notified upon completion of the demolition works so that an inspection can be made of the roadway and footpath. 33. All non-recyclable demolition material being disposed of at an approved waste disposal depot. Details as to the method and location of disposal of demolition materials (weight dockets, receipts, etc.) should be kept as evidence of approved method of disposal. 34. Sorting your construction and demolition waste will save you money. For pricing and disposal options for sorted loads of tiles, bricks, timber concrete or asphalt call Waste Service NSW on 1300 651 116. For more information on these Conditions please contact Council's Ben Latta on 9330 9484. ________________________ K G Hoffman Commissioner of the Court Mp/ljr 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.