Land and Environment Court of New South Wales CITATION : Nasser v Hurstville City Council [2007] NSWLEC 122 APPLICANT Sam Nasser PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 11060 of 2006 CORAM: Tuor C Building Certificate :- works carried out without consent KEY ISSUES: whether boatshed capable of use for residential purpose impact on forshore Environmental Planning and Assessment Act 1979 LEGISLATION CITED: County of Cumberland Scheme 1951 Hurstville Local Environmental Plan 1994 CASES CITED: Taipan Holdings Pty Limited v Sutherland Shire Council (1999) NSWLEC 276 ; Hornsby Shire Council v Monk [2001] NSWLEC 248 DATES OF HEARING: 27/02/2007 EX TEMPORE JUDGMENT DATE : 1 March 2007 APPLICANT Mr R. O'Gorman-Hughes, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 1 March 2007 11060 of 2006 Sam Nasser v Hurstville City Council JUDGMENT 1 This is an appeal against the deemed refusal by Hurstville City Council (the council) of an application for a building certificate under s 149B of the Environmental Planning and Assessment Act 1979 (the Act) for work undertaken without consent at 68 Llewellyn Street, Oatley (the site). 2 Council approved a development application (2000/0689) for demolition of the existing house and erection of an attached dual occupancy on 1 November 2000. The development has been carried out generally in accordance with this consent. 3 Departures from the approved plans include: · a timber deck and stairs, · concrete and timber stairs along the northern side boundary, · open balustrade instead of solid balustrade, · alterations to the existing boatshed. 4 The changes are highlighted in a site plan drawing submitted by the applicant as part of the proceedings (Exhibit A). The parties agreed that the proposed works would have required development approval and had been carried out without consent. 5 The site, its context, the background to the application and the statutory controls are set out in the Statement of Basic Facts. 6 Mr Graeme George Young, Manager Development Control, provided a Statement of Evidence for the council. The applicant did not rely on any expert evidence and included a statutory declaration from Mr John Leslie Weston, a previous owner of the site. Neither person was required for cross-examination. 7 Council did not raise issue with most of the changes to the approved development as they had an acceptable environmental impact. The three matters in dispute related to the stair along the northern boundary, balustrade to the timber deck and stair and alterations to the boatshed. 8 The location and height of the stair along the northern boundary enabled direct viewing into the terrace and living area of the adjoining property. The applicant has agreed to provide a screen above the fence to a minimum height of 1.8 m above the stairs to mitigate these privacy impacts. The applicant has also agreed to install a balustrade to the timber deck and stair. These changes resolve these matters. 9 In relation to the boatshed the key dispute between the parties was whether the alterations undertaken to the boatshed now prevent it being used as a boatshed and facilitate the use as a separate residence. 10 On 15 December 2006, council issued a s 121B Notice of Intention to serve an Order No. 2(a) requiring the applicant to: 1) remove the kitchen, water closet, shower and air-conditioning unit from the boatshed, 2) remove the double glass sliding doors and full length windows from the front of the boatshed replacing them with double sliding timber boatshed doors. 11 The applicant responded on 21 December 2006 requesting that council defer issuing an Order until inspection of all council documents could take place. Council issued the Order on 20 February 2007. 12 The Statement of Issues before the Court raised the issue of whether the Building Certificate should be issued as council intends to take action specified in the order. 13 The parties agreed that the correct manner to assess the building certificate application is articulated by Bignold J in Taipan Holdings Pty Limited v Sutherland Shire Council (1999) NSWLEC 276 where his Honour at par 60 stated: In my judgment the approach to the exercise of the statutory discretion conferred by s 149F(3) of the Court determining a notional or hypothetical development application for consent to rebuild the old boatshed so as to bring into existence the rebuilt boatshed is an appropriate exercise for the court to undertake in the discharge of its statutory discretion under s 149F(3). 14 Further, at par 115 to 117, his Honour found that: The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, decided twenty years later was next noted, with citation of an extended passage from the judgment of King CJ at 323 to 324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning): "Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions." In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellant jurisdiction embracing i) planning appeals, ii) building appeals, iii) demolition orders and iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court) and its absence may go far in explaining the decision in Ellmoos. I adhere to the views expressed in Ireland, noting that I did not understand the council in the present proceedings to question those views. 15 Mr Rigg, for the council, submitted that the proposal would fail if assessed as a hypothetical development application under s 79C of the Act. 16 The boatshed above mean high water mark (MHWM) is in Zone A Residential and below MHWM is in Zone 7 Waterways under Hurstville Local Environmental Plan 1994 (the LEP). Boatsheds are permissible in both these zones but are not defined under the LEP. 17 In the Residential zone, a dwelling is permissible but not in the Waterways zone. Dwelling is defined under the LEP as being: dwelling means a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate residence. 18 The parties agreed that the majority of the existing boatshed is within the Waterways zone. Clause 19 of the LEP prescribes a 15 m foreshore building line (FBL) for the site and that a building shall not be erected between the FBL and the waterway. Clause 19(5) permits structures, including boatsheds to be erected beyond the FBL with consent. A consideration of the aesthetic appearance of the proposed structure is required. Clause 19A provides criteria for the assessment of development in or adjoining foreshore areas which includes the proposal's aesthetic appearance from the waterway. 19 Mr O'Gorman-Hughes, for the applicant, submitted that the existing boatshed, or that part below MHWM was constructed under the provisions of the County of Cumberland Scheme 1951 where land below MHWM was unzoned and consent was not required. The time of construction was stated in Mr Weston's statutory declaration. 20 Council has subsequently confirmed that approval for the boatshed was given in 1956. Council does not submit that the boatshed is unlawful and accepts the description of the boatshed in Mr Weston's statutory declaration as having a bench top and cupboards, tap and a shower and that it was used for both storage of small boats and for family gatherings and entertainment. 21 The parties agreed that, although undefined, a boatshed use would comprise storage of boats with the facility to wash after being on a boat and entertain. Mr Rigg submitted that the primary purpose must be for the storage of boats, with other uses ancillary to its primary purpose. 22 Mr Rigg submitted that the changes to the boatshed rendered it unsuitable for the storage of boats and that the proposal, if considered as a development application, constituted a change of use from a boatshed to another land use. 23 Further, Mr Rigg submitted that the changes resulted in the building being capable of being occupied or used as a separate residence and therefore being a dwelling which was prohibited within the Waterways zone. 24 In particular, Mr Rigg cited the installation of a shower and toilet in a separate room within the boatshed and the extent of cupboards resulting in the space being insufficient for the storage of boats. The lack of storage facilities for boats and the tiled floor made it unsuited for use as a boatshed. The installation of glass sliding doors and windows were not characteristic of a boatshed and give the appearance of a small flat or cottage and the width of the door openings of 1.7 m restricts access for boats. The air-conditioning and size of the water tank were beyond that to be expected for a boatshed use. 25 Mr Rigg accepted that small boats such as canoes and kayaks could still be stored but that the primary function or characterisation of the structure as a boatshed was removed by the changes. 26 Mr O'Gorman-Hughes submitted that the structure could still be used for the storage of small boats. The existing sea retaining wall already prevented the boatshed being used for the storage of larger boats. The toilet, shower, cupboards and other changes were consistent with its use as a boatshed and consistent with how it had been used since it was constructed. When assessed individually there were no merit based issues which would warrant refusal of the kitchen, shower, toilet, air-conditioning, glazing, or connection to the sewer. Each of these elements was consistent with a boatshed use while improving the amenity of the use. 27 In relation to whether the changes resulted in the boatshed being capable of being used as a dwelling, Mr O'Gorman-Hughes referred to the decision of Bignold J in Hornsby Shire Council v Monk [2001] NSWLEC 248 where His Honour examined the issue of whether a building was actually or capable of being used as two separate dwellings. Although dealing with Class 4 proceedings His Honour's findings are relevant to this appeal. He concluded that the presence of kitchen facilities being cupboards, a sink and a microwave oven did not render the building capable of being used as a separate residence. He states at par 38: I do not think Mr Fryar's evidence establishes that the ground floor contains a kitchen in the living room. In this respect, the absence of cooking facilities (ie a stove) is, I think, a crucial consideration, which is not countermanded by the presence of a microwave oven. 28 Further at par 55 His Honour states: Because I have now found that the ground floor of the building erected on the subject premises is not capable, as it currently exists (ie without a kitchen providing a stove) of being occupied or used as a separate dwelling, the problem that I have earlier adverted to concerning a possible conflict between (i) a capable occupation and use and (ii) an actual occupation and use, does not arise, in the result. 29 The presence of a stove was crucial to His Honour's conclusion that the building was not capable of being occupied or used as a separate dwelling. The changes to the boatshed do not include a stove and therefore a similar conclusion can be drawn. I therefore find that the proposal is not a dwelling which is prohibited under the LEP. However, I accept Mr Rigg's submission that the changes result in the structure no longer being characteristic of a boatshed. While it is still capable of being used for storage of small boats it is not suited for this purpose. Storage of boats would be ancillary to what appears to be its primary purpose as an entertaining area or games room, which is what it is shown as on the draft strata plan. 30 Boatsheds are permissible within the Waterways zone dwelling houses are not. An entertaining area or games room would be characterised as part of a dwelling and not be permissible within this zone. Similarly, boatsheds are permissible between the FBL and the water. An entertaining area or games room is not. 31 Based on the statutory declaration of Mr Weston the existing structure was built as a boatshed and this is consistent with council's approval. The boatshed was also used for family gatherings and entertaining. I consider that this description accords with a boatshed use, which is primarily for the storage of boats with ancillary or secondary use for entertaining. The changes result in the structure being primarily for entertaining with the storage of boats as an ancillary use, which would be undertaken with some difficulty. 32 Of primary concern are the changes to the external appearance of the structure. The boatshed is unusual in the area, being rendered masonry with a flat roof. The introduction of 3.4 m glazed opening facing the water as well as a glazed window on the side give the appearance of a cottage or dwelling on the water rather than a boatshed. 33 Clause 19 and cl 19A require a consideration of the appearance of a structure from the waterway. The objective of the Waterway Zone is: To ensure any development of land below mean high water mark is carried out in an environmentally sensitive manner, having particular regard to the nature and function of the waterways. 34 The external changes to the structure alter its appearance. While there are other examples of glass doors in boatsheds on the water, they are not characteristic of this type of structure. Their addition into the existing building, which by its form and construction, is already atypical of boatsheds in the area further extenuates this difference and contributes to its appearance as a cottage rather than as a boatshed. This change is inconsistent with cl 19 and cl 19A and the objectives of the Waterways zone. The glazed opening and width of the sliding doors also restrict the use of the structure as a boatshed. For these reasons I accept that the glazing should be removed and timber boatshed doors installed into the full width of the opening. I understand that this is similar to what existed prior to the changes being made. 35 I do not accept the submission that the glazing should remain and the timber doors be installed in front. I recognise that this would provide significant amenity to the owners, however, as the glazing would provide the weather protection it is unlikely that the timber doors would be closed and therefore defeat their purpose. 36 In relation to the internal changes, I accept that the nature of the facilities and the air-conditioning appears to be beyond or unsuited to a boatshed use, however, I do not consider that these offend the objectives of the zone or the requirements of the LEP to the extent that they should be removed. 37 For the above reasons, pursuant to s 149F(3)(a) council is to issue the building certificate subject to conditions. The conditions require: (1) The instillation of a balustrade to the timber deck and stairs to comply with the requirements of the Building Code of Australia. (2) The instillation of a privacy screen to the fence along the northern boundary to a height of 1.8m above the timber stairs, measured from the front of the treads. (3) The removal of the double glass sliding doors and full length windows from the front of the boat shed and the replacement with double sliding timber boat doors. 38 Upon receipt of a satisfactory drawing which illustrates the changes to the boatshed required by condition 3, I will issue final orders in Chambers. ___________________ Annelise Tuor 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.