Land and Environment Court of New South Wales CITATION : McGowan v Willoughby City Council [2006] NSWLEC 596 FIRST APPLICANT David John McGowan PARTIES : SECOND APPLICANT Alison Kaye McGowan RESPONDENT Willoughby City Council FILE NUMBER(S) : 10505 and 10506 of 2006 CORAM: Murrell C KEY ISSUES: Appeal :- Re-erection of a dividing wall, noise, privacy LEGISLATION CITED: Environmental Planning and Assessment Act Development Control Plan No. 25 CASES CITED: Windy Dropdown Pty Ltd v Warringah Council, [2000] 111 LGERA 299 DATES OF HEARING: 30-31/08/2006 and 11/09/2006 EX TEMPORE JUDGMENT DATE : 09/11/2006 APPLICANT Mr N Howie, solicitor SOLICITORS Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr R Dixon, solicitor SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 11 September 2006 10505 and David John McGowan and Alison Kaye 10506 of 2006 McGowan v Willoughby City Council JUDGMENT This determination was given extemporaneously and it has been edited prior to publication 1 This is an extempore judgment for a binding s 34 conference that was held on site on 29th and 30 August 2006. The Court met on site on the 29th with the parties and it was apparent that the adjoining neighbours at No. 19 Cameron Avenue, Artarmon, did not receive notification of the Court hearing. As such, the Court adjourned to allow Ms Thompson from 19 Cameron Avenue to give evidence to the Court on the afternoon of the 30th. At the on-site conference, amended plans were also proposed. They have been tendered today in the proceedings and they are Exhibit F. 2 By way of background, this matter involves two appeals. Appeal No. 10505 of 2006 under s 121ZK of the Environmental Planning and Assessment Act is against council's issuing of an order under s 121B of the Act. Council issued an order in May 2006, such that it required the re-erection of a dividing wall between the living room and the dining room to re-create a study in accordance with the approved plans. 3 The reason for the order is that the removal of the dividing wall has altered the use of the study into a formal dining room thereby increasing the use of the combined lounge-dining opening then to the side verandah through the French doors from the former study. 4 The reasons given in the Order issued by council are: 1. The new use may increase noise levels and adversely impact upon privacy and amenity of the adjoining premises on the western side. The dining room has double doors that open onto the western deck which would most likely intensify the use and thus increase impacts upon the adjoining premises. 2. The unauthorised removal of the wall has been carried out without prior consent of council in a case where prior consent is required. 3. The development has not been carried out in accordance with council's Development Control Plan No. 25 exempting complying development. 4. The Condition 3 of the development consent of December 2003 has been breached. 5 The other appeal to this Court No. 10506 of 2006 is for a s 96 application to a consent already issued by the council. 6 By way of background, the council approved major alterations and additions to the property known as 17 Cameron Avenue, Artarmon. The alterations and additions are to a dwelling house erected approximately 1911 to13, and it is within the conservation area of Artarmon. The street in which the dwelling occupies the site has a consistency in terms of the period of the dwelling houses and also in terms of the fabric of the dwelling houses. Alterations and additions in the street have generally been carried out to be consistent with the principles of the conservation area. 7 The council approved a double garage to be excavated under the dwelling with a sandstone base. As part of this approval, it also allowed a deck to extend to the side boundary such that there was no setback of the trafficable area of the deck to the adjoining neighbour which is significantly raised above natural ground level. The alterations and additions also included the incorporation of a swimming pool and other changes to the dwelling house. 8 The matter in dispute is what was known as the study on the original approved plans that had a wall with a single door through to the living room at the front of the dwelling house. That living room then opened onto the front part of the verandah through French doors and there was a wraparound or rather return verandah to the boundary with No 19 Cameron Avenue. The original approval also allowed for French doors to open to the western side of the deck. 9 The council, in allowing other s 96 applications, did not approve of the archway opening between what was referred to as the study in the original consent to the living room. It was concerned about the increased traffic and the increased potential number of persons to congregate particularly on the western side of the deck which may have adverse impacts on the adjoining neighbour. 10 During the first day of the hearing it was pointed out that when the application for the s 96 application to provide for an arch as opposed to a door between the living and study, that this was not complying exempt development and that exempt development under the DCP 25 would not have permitted same. Subsequently council, it is noted, has changed its DCP, but its development control plan requires that there be no adverse impacts, so the question is whether in fact the removal of the wall to provide a large arch which is now proposed as the dining room and the living room would be permissible. At the time of the consent there is no question it was not permissible in terms of the then DCP 25. 11 The Court, as I said, when it met on site on the second afternoon had the opportunity of viewing the premises of Ms Thompson owned by herself and her partner at No. 19. Their main bedroom is at the front of the dwelling house adjacent to the verandah and there are also two other bedrooms and a bathroom on the common boundary and both have windows to the boundary with No. 17. 12 The Court in its deliberations of the matters under appeal considered that it would be appropriate to ensure the amenity of the adjoining neighbour that there be a solid screen by way of a glass panelled screen erected near the boundary of No. 17 such that it would provide for landscaping or a planter on the neighbour's side of the screen, and on the other side of the screen it would also provide for landscaping to be afforded to the subject property. The purpose of the screen is to provide for oral privacy as well as visual privacy to the adjoining neighbours and not to diminish the light received into the bedroom and the bathroom on the side boundary. 13 The applicant responded by providing amended plans to the Court known as Exhibit F today to show the architectural detailing of the glass panels and then for the landscaping to be provided on the other side of the panel at No. 19. On the front section of the balcony there was concern about ensuring the heritage or the conservation of the area was enhanced so instead of the screen two large planters are proposed in this location to retain the timber balustrade and the planters are to prevent a trafficable area of the verandah in this front portion. The two permanent planters are to be 750 by 750 and this as I stated will ensure that the persons are kept from the edge of the deck. 14 The Court noted on site that the paling fence in one section was missing between the two properties and it is considered that it would also be appropriate for that to be reinstated as part of the order. 15 It was clear to the Court that there has been a great deal of animosity created during the construction period of the alterations and additions to the subject dwelling house. In order to assist in resolving matters it is considered appropriate that the order that council issued be substituted or modified under s 121ZK(4) of the Act such that the works of the screen and the landscaping and the planters shown in the amended s 96 application, together with reinstating the missing part of the fence be completed within a maximum period of 90 days from the date of the order. 16 The Court in its deliberations considered the value that would be provided in requiring a reinstatement of the internal wall as opposed to the existing arch with the above modifications seen on the site. There is no doubt that s 96 applications can be retrospective in terms of the judgment of Talbot J, Windy Dropdown Pty Ltd v Warringah Council, [2000] 111 LGERA 299 but at the end of the day it is important that the amenity of the adjoining property be protected. In this regard the Court by way of comment notes that the original approval granted by the council to allow for a trafficable verandah to the boundary, while it may have appeared to have been appropriate in conservation terms to build to the boundary and to allow an excavation of the garages underneath it is not appropriate in terms of amenity to allow a trafficable verandah with zero setback to the adjoining property. 17 I am satisfied that the s 96 and the order to provide for certain works to be undertaken within a time frame to ensure that persons are removed from the edge of the deck, that is there to be provided a buffer between the adjoining neighbour by way of a screen and vegetation is appropriate in the circumstances of this case. The application that council approved sought to maximise the development potential and amenity for No. 17 however in my opinion heritage overwhelmed a proper assessment in terms of amenity impacts on the adjoining neighbour. The applicant has now agreed to the s 96 and the modifications as shown in Exhibit F and does not object to the Court issuing an order for the works to be done within a relatively timely manner. A maximum period of 90 days is considered to be more than enough time to carry out the works as described in Exhibit F, the amended plans for the s 96 application. 18 Therefore on the basis of the Court's assessment the formal orders of the Court for appeal No. 10506 of 2006, under s 96 of the Environmental Planning and Assessment Act are: 1. The appeal in respect of for the property known as 17 Cameron Avenue, Artarmon, is upheld. 2. The modification application submitted to Willoughby Council and as amended and shown in Exhibit F, is approved subject to the consolidated set of conditions in Annexure A. (Annexure A being the conditions that pick up the two previous s 96 applications and the current s 96 application to provide for a consolidated set of conditions). 19 The orders of the Court with respect to appeal No. 10505 of 2006 are: 1. The order for the property known as No. 17 Cameron Avenue, Artarmon issued by Willoughby City Council under s. 121B of the Environmental Planning and Assessment Act 1979 is hereby substituted with the following order under s 121zk(4)(c): 2. The applicant shall complete or cause to be completed within a maximum period of 90 days from the date of this order the works as shown in the amended s 96 plans, known as Exhibit K in the proceedings No. 10506 of 2006 for the glass screens; the planter boxes on the south western corner of the terrace; the landscaping in condition 3; and the fence where it is currently absent on the western boundary. 2. The exhibits with the exception of 2 and F are returned to the parties. ___________________ J S Murrell 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.