Land and Environment Court of New South Wales CITATION : Hassib Najjar v Hornsby Shire Council [2004] NSWLEC 61 APPLICANT Hassib Najjar PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11558 of 2003 CORAM: Brown C KEY ISSUES: Development Consent :- Refusal to issue Occupation Certificate - s 96 application to modify approved dwelling LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Benalup Holdings Pty Ltd v Lismore City Council (81 LGERA 257) DATES OF HEARING: 19/02/2004 DATE OF JUDGMENT: 03/04/2004 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr I Woodward, solicitor SOLICITORS Hornsby Shire Council JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11558 of 2003 Brown C 4 March 2004 Hassib Najjar Applicant v Hornsby Shire Council Respondent Interim Findings Introduction 1. This is an appeal in respect of the determination by Hornsby Shire Council (the council) of an application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 539/00 and also the council's refusal to issue an Occupation Certificate for a recently constructed dwelling at 15A Morgan Street, Thornleigh (the subject site). The proceedings were conducted as an On Site Hearing. 2. Mr Simon Evans, the council's assessments manager, provided evidence on both matters and offered alternate conditions to reflect his evidence. Local residents' Mr John Ruzek of 19 Morgan Street and Ms Tracy Knights of 15 Morgan Street provided further evidence on the s 96(2) application. Mr Najjar was self represented and provided a statement outlining his position. He provided no expert evidence although he indicated during the proceedings that he was an engineer. The Occupation Certificate 3. Mr Evans identified three specific areas that require attention before the council was in the position to issue an Occupation Certificate. These were: 1) inadequate information to ensure that the dwelling has appropriate protection from termites in accordance with Part 3.1.3.2 of the Building Code of Australia (BCA), 2) inadequate information to ensure that the building has a smoke alarm system connected to the consumer mains power in accordance with Part 3.7.2.2 of the BCA, and 3) whether the balustrades on the front porch and first floor balcony are safe as they are less than the required 1000 mm required by Part 3.9.2 of the BCA. 4 . In terms of termite protection, Mr Najjar produced a Tax Invoice indicating that the area of the house was sprayed prior to the pouring of the concrete slab. Mr Evans rejected this document, as it did not satisfy the specific requirements contained within the BCA. On this issue I agree with Mr Evans. The appropriate documentation to satisfy the requirements in the BCA should be required. It was suggested to Mr Najjar that the contractor who had undertaken the spraying should be contacted to arrange for the appropriate documentation. Mr Evans undertook to provide to Mr Najjar the relevant parts of the BCA. 5 . The non-complying balustrades were inspected and it was agreed that the variations ranged from 5 mm to 50 mm. Mr Najjar expressed the view that the departures were small and did not warrant any amendment to conform to the 1000 mm requirement in the BCA. Mr Evans stated that the non-compliance constitutes a potential hazard to the health and safety of the occupants of the building and as such the balustrades should be adjusted to satisfy the requirements of the BCA. I accept Mr Evans evidence, largely on the basis of public safety notwithstanding the small variations in some areas. 6 . The council did not press the issue of the smoke alarm system. The s 96(2) Application 7. The application to modify the previous approval centres on four main areas. I note the modifications sought in the application have been constructed. These are: The rear balcony 8. The modification application seeks approval for a balcony at the rear of the dwelling, directly above the family room. It has an area of 15.6 m2 and has 1 m high clear glazing to the northern, southern and western sides. Access is obtained via a sliding door from bedroom 4. 9. Mr Lewis states that the balcony provides an elevated platform that has the potential to overlook the private courtyard and swimming pool area of 19 Morgan Street. He suggests the privacy impacts can be overcome by the erection of a screen of a minimum height of 1.5 m and consisting of close-formed lattice. While Mr Najjar expressed some concern that the screen should extend to the floor, I agree with Mr Lewis that this will provide a more attractive appearance from 19 Morgan Street. Garage roof 10. The modification application seeks approval to replace the black tile pitched roof with a pale green colour bonded metal roof with boxed gutters and a reduced pitch. 11. Mr Lewis describes the change as being in complete contrast with the existing dwelling that retains the black tile pitched roof. Consequently it will have a detrimental visual impact when viewed from adjoining premises. Ms Knights, whose property and outdoor living area adjoins the garage, reiterates the concerns of Mr Lewis. Mr Najjar explained that the garage was significantly damaged in a rock fall that necessitated a retaining structure being built at the rear of the garage. This retaining structure included of the roof of the garage as a structural component. The roofing material was included to provide easy access and maintenance for the boxed gutter. Mr Najjar disputes that the pitch of the current roof (as compared to that before the rock fall) is different. 12. On this matter, I accept that the boxed gutter is acceptable. While it is different to the other drainage for the dwelling, it is not overly conspicuous. Similarly, the change in pitch (if it does exist) is not noticeable. I do however agree with Mr Lewis and Ms Knights that the pale green colour bonded metal roof unacceptably contrasts with the black tile roof for the remainder of the dwelling. Mr Najjar suggested that other dwellings in area have a similar roofing material however I see no reason why a new dwelling in attractive residential environment should have such contrast in roof colours and materials. The explanation given to the Court does not, in my opinion, justify the proposed modification. Landscaping 13. The modification application seeks to modify the plan previously approved and specifically referred to in condition 18 of the development consent. 14. Mr Evans addresses a number of areas where the existing landscaping is deficient. The Landscaping Element of council's Dwelling House Development Control Plan (the DCP) provides specific requirements. These include the requirement that landscaping reinforce the function of the street and enhance the amenity of dwelling houses, a requirement that landscaping be a minimum of 45% of the site and to there be adequate space for landscaping at the front and sides of the dwelling to reduce the visual impact of the development on adjoining residents, as well as streetscape. Mr Evans notes that the landscape plans approved by the council provide for approximately 45% of the site to be covered by soft landscaping, as well as 13 shrubs/trees along the northern boundary and to the rear of the dwelling. He states that this was an integral part of the approval for the purpose of enhancing the amenity of the adjoining neighbours in terms of visual and privacy impacts. The amendment seeks (and reflects what has been constructed) to dispense with the provision of the landscaping to the rear part of the northern boundary and replace the approved lawn at the rear and the southwestern courtyard with concrete pavement. The consequence is a detrimental impact on the adjoining properties at Nos. 15, 17 and 19 in terms of overlooking of their recreational areas and the views to and from the dwelling. 15. Mr Najjar explained that the rocky site conditions have made it impossible to carry out the landscaping as per the approved plans. He states that the rear yard is some 60 m from the street and located behind the building and as such the lack of landscaping in this area will have an insignificant effect on the street. In addition, seven other trees, not required by the council, have also been planted in front of the house and will grow to over 3 m. Mr Najjar also indicated that the retaining structure near the garage resulted in a loss of area for landscaping however this was unavoidable. 16. With the benefit of a view from the subject site and also some adjoining properties, I concur with the concerns expressed by Mr Evans. I am not convinced that sufficient attention has been paid to the requirements in the DCP and the impact on the adjoining properties through the amendment sought to the landscaping plan. In my view little attempt has been made to maximise the landscaping on the site even considering the constraints expressed by Mr Najjar. The proposal is clearly unsatisfactory in terms of the impact on the properties of Mr Ruzek and Ms Knights. 17. From Mr Ruzek's property the landscaping that was proposed to screen his property from the subject site has been replaced by concrete paving. Opportunities for overlooking are available from the living areas on the ground floor and the rear deck. Mr Ruzek generously offered to allow some landscaping to be planted in his property to preserve his privacy but at the applicant's expense. I accept this may, in the longer term address his concerns. In the short-term however some screening should be provided on the fence to reduce the direct overlooking. 18. When viewed from the rear courtyard area of Ms Knights property the retaining structure on the subject site is a dominant and unattractive feature. It was not clear to the Court how the retaining structure was constructed however its appearance could be improved through landscaping. 19. In considering those matters raised by Mr Evans I have comfortably come to the position that the amendment is unsatisfactory and that greater attention should be given to the question of landscaping. This should be in the form of a further landscaping plan prepared by a qualified landscape architect who could properly address the requirements of the DCP and the constraints of the site with the view of maximising the landscaping opportunities. Driveway wall 20. The council raised this issue, as the approved plans did not indicate a brick fence was to be erected along both sides of the accessway and the eastern boundary. The approved plans indicate only about a 1.2 m brick fence was to be erected for a distance of 6 m from the front boundary. The modification plans showed the brick fence as constructed. Mr Najjar maintained that the absence of any specific details on the approved plans allowed him the freedom to construct a brick fence. 21. This was a matter of dispute between the parties however I accept the council's submission that the absence of any details on the approved plans could not be seen as endorsing the brick fence, as constructed. I note that the approved plans specifically nominate other areas where a brick fence is to be constructed. 22. Due to the natural fall of the land the driveway wall is over 2 m in height when viewed from the adjoining property to the north. The wall was inspected from both sides and I accept the council's concerns over the structural adequacy of this wall. A bow in the wall was clearly noticeable and there was no means of adequately assessing the adequacy of the footings for the wall. While Mr Najjar indicated that the wall was structurally safe and founded on rocks I am not prepared to accept this assurance. No details were provided on his qualifications and for abundant caution I accept the council's position that an independent structural engineers report should be provided for the wall. Interim Findings 23. The Interim Findings reflects the Courts decisions on the issues raised in these proceedings. The findings were expressed to the parties at the On Site Hearing, however, they are formalised in this manner for clarity and so the parties can undertake further discussions and investigations before formal Orders are made. 24. The Interim Findings also contain directions for these further discussions and investigations and also the opportunity for the applicant to consider the findings in Benalup Holdings Pty Ltd v Lismore City Council (81 LGERA 257). In this matter it was held that a consent authority exercising discretion under s 102 of the EPA Act (as it was at that time for applications to modify a development consent) does not have the jurisdiction or power to modify a development consent other than in the terms applied for by the applicant unless with the consent of the applicant. Directions 25. The Court directs that the parties attend a Mention at 9.30am, on a day suitable to the Court and the parties within 10 days of the publishing of the Interim Findings to advise the Court of their progress in addressing the issues. ________________ G T Brown 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.