Land and Environment Court of New South Wales CITATION : Santoso v Fairfield City Council [2006] NSWLEC 470 APPLICANT Brawi Santoso PARTIES : RESPONDENT Fairfield City Council FILE NUMBER(S) : 10287 of 2006 CORAM: Hussey C KEY ISSUES: Appeal :- Section 121B Order, removal of concrete paving LEGISLATION CITED: Fairfield Local Environmental Plan 1994 Exempt Development Policy and Residential Guidelines - Development Control Plan 1/97, 2004 DATES OF HEARING: 27/07/2006 DATE OF JUDGMENT: 08/09/2006 APPLICANT Mr M Bonanno, solicitor Of: Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT Mr G Castellan, solicitor Of: Ritchie & Castellan JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 9 August 2006 10287 of 2006 Brawi Santoso v Fairfield City Council JUDGMENT Background 1 This appeal was lodged against a s 121B Order, which was served on the owner of the property at 61 Roland Street, Bossley Park, and required the removal of concrete paving around the existing single storey residence and carport. 2 The subject site is known as Lot 65, DP 260173. It is an irregular shaped battleaxe allotment having an access handle from Roland Street and backing onto the Transit way. The total site area is 614.6 sq m. 3 The following reasons were given for the Order: 1. The concreted area does not comply with council's Exempt Development Policy and Residential Guidelines - Development Control Plan 1/97, 2004 . 2. The unlawful building works have not been approved by Council. 3. The unlawful building works do not meet the requirements of the Environmental Planning and Assessment Act Regulations. 4. No evidence is available to the Council that the building work complies with Building Code of Australia. 5. The unlawful building works do not meet the objectives of Council's Local Environmental Plan with regards to achieving attractive high-quality residential development. Planning controls 4 The subject site is zoned 2(a) - Residential under the provisions of Fairfield Local Environmental Plan 1994 (LEP) as amended on 13 May 2005. The detailed controls for this type of development works are contained in the following supplementary planning controls: Development Control Plan No. 1/97 2004 - Guidelines for Residential Development 5 Of relevance in this matter are the following objectives: To ensure that new development is of a high standard and results in an improvement in the quality of the environment. To protect adjacent land and the wider environment from the impact of new development. Exempt and Complying Development Policy 6 Approval is required for concreting works which exceed 20 sq m. Storm Water Policy adopted by council in September 2002 Building Code of Australia 7 Of relevance in this matter is cl 3.4.1.2, which deals with provisions for subfloor ventilation. Also, Pt 3.1.3 and Australian Standard 3660.1 dealing with termite control considerations. The evidence 8 Detailed evidence on behalf of council was presented by: o Ms E Hudson, building surveyor (Exhibit 2), o Mr P Saverimuttu, development engineer (Exhibit 1). 9 For the applicant, Mr G Gleeson, consulting engineer presented a detailed report (Exhibit A). 10 It is apparent from the evidence and the site inspection, that a considerable amount of the yard area of the subject property has been concreted and this has a tendency to direct water onto the outer walls of the house where the holes for the subfloor ventilation have predominantly been covered. Also some stormwater overland flows are diverted onto adjoining properties. 11 Mr Saverimuttu says that the supplementary drainage in the form of grates and pits that have been constructed are inadequate to accommodate anticipated overland flows. Ms Hudson says that: o the concrete is not attractive as it is plain in colour and appearance, o the concrete covers a large portion of the site and does not make provision for adequate landscaping, o the concrete has not been adequately sloped and drained to prevent the impact of surface water runoff to the adjoining premises and subject premises, o the blocking of the subfloor vents is unacceptable because of the increased risk of termite infestation. 12 In response to these concerns, Mr Gleeson suggested a number of alternative measures to remove and regrade part of the concrete and install solar, sub floor ventilation. 13 Following discussions at the initial site inspection, the parties agreed that the extent of the existing concrete paving was excessive and some should be removed to provide landscape areas adjacent to the side boundaries, together with more absorption areas adjacent to the Transit way. This resulted in a final agreement that the following works as shown in Sketch SK 1A should be undertaken: o a strip of concrete 1 m adjacent to the northern boundary to be removed to facilitate construction of a 100 mm stormwater pipe and boundary landscaping, o a strip of concrete adjacent to the dwellings western wall be removed to allow installation of a 150 mm x 230 mm deep grated drain, and the concrete area adjacent to the dwelling regraded and reinstated, o a panel of the concrete driveway adjacent to the southern boundary to be removed, prior to reaching the Transit way, o the carport downpipes to be satisfactorily connected into underground drainage systems. 14 Having considered the respective positions of the parties, I am satisfied that the agreed works shown on Sketch SK 1A, represents a reasonable balance between the owners desire for extensive paving of the yard area, relative to the planning controls objectives to achieve a "high-quality of residential development". 15 Even though the existing concrete meets Council's numeric requirements in terms of paved areas, nevertheless it is generally out of character with this residential area. In particular, the other dwellings predominantly have boundary setbacks to enable vegetative screening, which contributes to the standard of residential development. However, the existing concrete precludes this and the modification rectifies this to a reasonable extent, in my opinion. 16 In my assessment, other aspects of the desired "high-quality residential development", involves energy efficiency considerations taking into account the additional heat generated from the extensive concrete paved areas, which cannot be effectively shaded by canopy trees. Removal of the existing concrete adjacent to some of the property boundaries and provision of landscaping overcomes this concern to some extent. 17 Another concern is that the property has a noticeable gradient along its (unsealed) battleaxe handle driveway, which carries through the carport area. It is likely that in storm events, overland flows will transport road base material from the driveway through the carport area, onto the public property in the Transit way. Accordingly, I am satisfied that the removal of the existing panel of concrete adjacent to the Transit way boundary is reasonable to slow and minimise concentrated overland flows from the private property onto the public land. 18 I also accept Ms Hudson's opinion that where the concrete paving has covered the subfloor ventilation holes, this is unsatisfactory in terms of the BCA requirements. In this regard, the agreed works which divert stormwater away from the building wall and collects in the 150 mm x 230 mm interception drain, should allow satisfactory alternative subflow ventilation, according to Ms Hudson and Mr Gleeson, on whose evidence I rely. 19 In summary then, I accept that the agreed works represent a reasonable balance between the competing interests and a new s 121B Order reflecting this agreement be made in the following terms. Court orders 20 Therefore the orders of the Court are: 1. The appeal is allowed in part. 2. Pursuant to s121B of the Environmental Planning and Assessment 1979, Pt 6 Division 2A, an Order in accordance with Annexure 'A' (Schedule 1) is made. 3. The exhibits may be returned except 1, 2 and A. ___________________ R Hussey Commissioner of the Court rjs 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.