Land and Environment Court of New South Wales CITATION : David Rudder Associates v Manly Council [2005] NSWLEC 105 APPLICANT David Rudder Associates PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 11386 of 2004 CORAM: Nott C Development Consent :- alterations and additions to existing dwelling - partial loss of waterviews for neighbouring properties KEY ISSUES: Environmental Planning and Assessment Act 1979, s97 LEGISLATION CITED: Manly Development Control Plan for the Residential Zone 2001 Manly Local Environmental Plan 1988 DATES OF HEARING: 10 March 2005 EX TEMPORE JUDGMENT DATE : 03/10/2005 APPLICANT Mr S. Kondilios of Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr B. Tobin of Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 10 March 2005 11386 of 2004: David Rudder Associates v Manly Council JUDGMENT 1 This is an appeal against council's refusal of a development application in respect of alterations and additions to an existing residence at 90 Cutler Road, Clontarf. 2 The hearing occurred on the site, and I heard evidence from the court-appointed expert, Ms K Gordon, a town planner. I also heard evidence from adjoining neighbours who live at 23 and 25 Moore Street. These adjoining properties are on higher ground and have a view over part of the subject site towards the water. 3 The original application that was lodged with the council provided for a roof form (for upper-floor bedrooms) which would have impacted to a greater extent on the views of the adjoining neighbours than the amended proposal which is now before the Court and in respect of which the applicant seeks development consent. The amended plans are exhibit 2. 4 At the uppermost level, two bedrooms are proposed, together with a robe and en-suite. The roof in the amended plans is now a flat roof over the uppermost level. In respect of the roof over the bedrooms, it is at approximately the same level as the level of the roofs on the properties on either side but the roof over the en-suite is lower. In addition, it could be remarked that the flat-roofed proportion of the proposal does not extend towards the water as much as the roof forms on the adjoining properties. The result of the smaller projection towards the water means that less waterviews will be lost from the properties above the subject site. 5 On behalf of the neighbours at 25 Moore Street, I also heard evidence from chartered architect Mr S Fayle. Objection was taken to this from the solicitor for the applicant. However, I note that Mr Fayle's firm had previously lodged an objection on behalf of the adjoining neighbours, so I see no reason why Mr Fayle's evidence should be excluded. 6 There are three breaches of the council's Development Control Plan for the Residential Zone 2001. This DCP gives greater detail to the Manly Local Environmental Plan 1988. The main provisions of the LEP and the DCP that were in issue are set out in the statement of evidence of Ms Gordon. In addition, I have had regard to other provisions of the actual DCP, which was tendered. 7 In relation to the wall height on the eastern elevation, the proposal is in breach of the control by 0.18 m. 8 In regard to the setback requirements, 400 mm of the wall of the robe and en-suite at level 4, extending into the room by 270 mm, is in breach of the control. 9 Having viewed the subject site from the adjoining neighbours' properties in Moore Street, I am of the opinion that those breaches are minor as regards the loss of views. 10 Of more concern was the breach of the floor space ratio control, which (subject to a power to vary it) requires 0.4:1, whereas the proposal is approximately 0.5:1. Ms Gordon was of the opinion that notwithstanding the breach of this control it would be appropriate to grant development consent for several reasons. One of those reasons was that there is, as I mentioned, a power to accept a variation to the floor space ratio where the site is a small site such as the subject one, which has a land area of 458 sq m. This is provided for in clause 3.3.2 of the DCP. 11 A large contributing factor to the floor space ratio of 0.5:1 is the fact that the garage which exists on the site has been excavated, and the definition of existing ground level means the level of the ground on a site as at the date on which the DCP commenced exhibition, that is, 28 May 2001. If the garage had not been excavated and this was a site without a house on it, it would be possible in erecting a new house to excavate the garage and it would appear that the garage (being required carparking) would not be included as floor space. As Ms Gordon said, the DCP appears to penalise existing houses compared with new houses. 12 I have taken into account the suggestion that the roof form over the bedrooms could be further lowered. However, having observed the likely extent of view loss from the adjoining properties at 23 and 25 Moore Street, the difference in my opinion does not warrant the further amendment to the proposal along the lines suggested by Mr Fayle. 13 The proposed development affects the lower foreground waterviews from these adjoining properties, more so at the ground-floor level than at the upper level. Mr Simpson owns the property at 23 Moore Street, and a lot of his time is spent at the upper level because he is generally confined to a wheelchair. In my opinion, the loss of waterview from the upper level would be minor as viewed from a wheelchair position or from lying in bed. 14 I have also taken into account that the solicitor for the council made a submission that the council accepted Ms Gordon's view that it would be reasonable to approve the proposed development as amended. The council however, did not formally consent to the granting of consent orders, probably because of the objections that remained from neighbours at the two properties that I mentioned. 15 The conditions that the council seeks to impose have been agreed to by the applicant. In the circumstances, it is appropriate to allow the appeal. 16 Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for alteration and additions to the dwelling house at 90 Cutler Road, Clontarf, subject to the conditions in Annexure A hereto. 3. The exhibits, other than exhibits A, 2 and 7, may be returned. _____________ A J Nott Commissioner of the Court ljr Annexure A Conditions of Consent 1. This development shall be carried out generally in accordance with drawings/plan prepared by David Rudder Associates Pty Ltd Architects numbered 0203/2 Issue C, 0203/3 Issue C, 0203/4 Issue C, 0203/5 Issue C, 0203/6 Issue C all dated February 2005 and filed with the Land & Environment Court on 22 February 2005 and the Survey Plan prepared by Paul Keen & Company dated 17 July 2003. 2. Pursuant to Section 80(A)(6) the Environmental Planning & Assessment Act, 1979, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $7,500. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site. Note : Should Council property adjoining the site be defective eg, cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site . 3. No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction. 4. The applicant is to notify Council at least 48 hours before commencement of works on any Council road so as to enable Council to supervise the carrying out of the works. 5. Details of the builder's name and licence number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate. 6. Insurance must be undertaken with the contracted builder in accordance with the Home Building Act, 1997. Evidence of Insurance together with the contracted builders name and licence number must be submitted to Council prior to issue of the Construction Certificate. 7. 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 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets. 8. A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm. Note: The sign is not required if the building on the site is to remain occupied during the course of the building works. 9. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary. 10. Four (4) certified copies of the Structural Engineer's details in respect to the structural details of the proposed building shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. 11. A Certificate of Adequacy signed by a practising Structural Engineer is to be submitted to the Principal Certifying Authority in respect of the load carrying capabilities of the existing structure to support the proposed additions prior to the issue of the Construction Certificate. 12. Where any excavation extends below the level of the base of the footing of a building on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia. 13. The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licenced applicator prior to the fixing of any wall or floor tiles. 14. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system. 15. The implementation of adequate care during demolition/ excavation/ construction to ensure that no damage is caused to any adjoining properties. 16. An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project. 17. On completion of the building structure a Registered Surveyor's report is to be submitted to the Principal Certifying Authority confirming that the building has been completed in accordance with the levels as shown on the approved plan. 18. Four (4) sets of Architectural and Services Specifications are to be submitted with the Construction Certificate application. 19. All external cladding and trim of the approved building shall be of a non reflective nature. Details of such finishes shall be submitted with the Construction Certificate Application. 20. All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater downpipes shall not be attached to the external surfaces of the building. 21. Roofwaters and surface stormwaters from paved areas is to be conveyed by pipeline to Council's street gutter. 22. All demolition is to be carried out in accordance with AS2601-1991. 23. Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority. 24. All building work must be carried out in accordance with the provisions of the Building Code of Australia. 25. An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions. 26. All lights used to illuminate the exterior of the buildings or site shall be positioned and/or fitted with cut off luminaries (baffles) so as to prevent the emission of direct light onto adjoining roadways and land. 27. Any ancillary light fittings fitted to the exterior of the building are to be shielded or mounted in a position to minimise glare to adjoining properties. 28. All materials on site or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses. 29. Issue of a Compliance Certificate from the Principal Certifying Authority prior to occupation to the effect that: (a) Required inspections have been undertaken and the work has been completed in accordance with the approved plans and specifications, the Development Consent and the Construction Certificate. (b) Documentary evidence relative to: o wet areas waterproofing certificate o structural engineers inspection certificate o survey certificate 30. Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface. 31. Drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment. 32. Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:- (a) siltation fencing; (b) protection of the public stormwater system; and (c) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place. Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays. Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours. 33. Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack". 34. This approval shall expire if the development hereby permitted is not commenced within four years of the date hereof or any extension of such period which Council may allow in writing on an application made before such an expiry. ____________ A J Nott Commissioner of the Court 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.