Land and Environment Court of New South Wales CITATION : Frisoli v Leichhardt C [2005] NSWLEC 451 APPLICANT Albert Frisoli PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 10485 and 10486 of 2005 CORAM: Hoffman C Appeal :- Refusal of the issue of a Building Certificate and an Occupation Certificate relating to a swimming pool and a pool house. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 15/08/2005 EX TEMPORE JUDGMENT DATE : 08/15/2005 APPLICANT Mr M. Fraser, barrister instructed by Mr M Pearce, solicitor of Watson & Watson Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J. Walsh, solicitor of Pike Pike & Fenwick. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 15 August 2005 10485 of 2005 Albert Frisoli v Leichhardt Council 10486 of 2005 JUDGMENT 1 This hearing is in regard to two appeals between Mr Albert Frisoli v Leichhardt Council. Appeal No. 10485 of 2005 is in regard to the refusal to issue a Building Certificate under s 149D of the Environmental Planning and Assessment Act . Appeal No. 10486 of 2005 is in regard to the refusal to issue an Occupation Certificate. Both are related to a development consent DA 2002/381 for a swimming pool and pool house at No. 17 Goodsir Street, Rozelle. 2 The issues in Appeal No. 10485 are: 1. The building has not been constructed in accordance with the Development Consent DA 2002/381 granted by Leichhardt Council on 13 January 2003 or the Construction Certificate CC2003/98 and whether an Order under cl 1218 of the Environmental Planning and Assessment Act to comply with the Development Consent should be served. Particulars o The roof form and the gutter on the western elevation adjoining 15 Goodsir Street has been constructed such that the height of the gutter in relation to the boundary wall is erected 400mm higher than that approved; and o The building which was granted consent for the purpose of a cabana related to the approved swimming pool has been constructed with the facilities to enable occupation as a self- contained residential purpose. 2. The building as constructed has the potential to cause detrimental amenity impacts on adjoining residences if the building is used for separate residential occupation. 3. The approval of the illegal building works would not be in the public interest. 4. Issues raised by objectors in relation to the development on the site including: a Unauthorised work; b Encroachment of building onto retaining wall; c Privacy issues of cabana to rear property; d Height of roof and wall heights exceed those on plans; and e Use of building for separate residential occupation. 3 The issues in Appeal 10486 are: 1. The occupation certificate OC2004/251 should not be issued for the building for which development consent was granted, namely a cabana associated with a swimming pool, in accordance with the restrictions set out in s 104H(1)(a) of the Environmental Planning and Assessment Act 1979. Particulars The building as completed, constitutes a "dwelling" as defined in Leichhardt Local Environmental Plan 2000. Development Consent has not been granted for the building as a dwelling. 2. The approval of the application for an Occupation Certificate would not be in the public interest. 4 Attending the s 34 conference were for the Applicant: - Mr Pearce, solicitor of Watson & Watson solicitors - Mr Fraser, barrister - Mr C. Blyth, town planner - Mr M. Frisoli, occupant of No. 17 Goodsir Street; and - Mr A. Frisoli, applicant and owner of No. 17 Goodsir Street. 5 Attending for the council were: - Ms J. Walsh, solicitor of Pike Pike & Fenwick - Mr K. Nash, consultant town planner - Ms M. Lyons, Council Legal Services - Mr M. Crew, solicitor for Mr and Mrs Bonhs - Mr H. Bonhs and - Mrs C. Bonhs of 15 Goodsir Street, Rozelle. 6 The swimming pool had not yet been built. The council had agreed to a staged development under an amendment to the original consent. 7 Mr and Mrs Bonhs had a number of concerns that had arisen during the construction of the house and then the pool house at No. 17. Many of their concerns were not related to the matters before me, and I need not go into them except to say the accumulation of issues had created bad relationships between the neighbours. 8 In regard to the pool house Mr Bonhs particular concerns were: 9 The west end of the roof of the pool house had been built about 400 mm higher than shown on the consent and this bought the eaves gutter up to the level of the boundary retaining wall and very close to the top of it. A rather bulky fascia board had been placed on top of the boundary wall. It is Mr Bonhs own wall and built by him on his property. The fascia board was extra to the eave gutter and was apparently intended to stop leaves and overflow going down the narrow gap between pool house and the retaining wall. Mr Bonhs said this was ugly, unsatisfactory, and the extra bulk of the roof unsightly. 10 There was about a 1 m drop down from the level in Mr Bonhs yard to the yard level of the subject property. The height of the retaining wall being about 1.2 m above Mr Bonhs yard and about 2.2 m above No. 17's yard. As a result the roof of the pool house and the fascia was about chest height and could be seen from Mr Bonhs yard. 11 The other concern was that the pool house had a cook top, oven and dishwasher and top cupboards above the sink and a loft area installed that were not shown in the plans. They made the pool house capable of being a separate domicile contrary to the consent. Although not occupied as a separate domicile at the time of the hearing Mr Bonhs said that amenity impacts would occur if somebody lived there permanently. There was direct vision from the pool house to Mr Bonhs rear deck. 12 The council's officers and Mr Nash and as well, Mr Blyth, had looked at the roof. They all noted that the majority of the roof had been built generally in accordance with the plans. The ridge height was at the approved height. It was only the hip at the west end of the roof that had not been constructed in accordance with the architectural plans. The reason for this appeared to be the necessity for a beam supporting the roof which was shown on separate engineering drawings. The architectural plans were obviously drawn without consultation of the engineering drawing. 13 The council officers and the experts had come to the conclusion that since the bulk of the roof was at its correct height and shape, the change to the western end was not sufficient that it should be corrected. Mr Fraser in cross examination of Mr Bonh made the observation that if the boundary wall was 1.8 m high instead of 1.2 m Mr Bonhs would not be able to see the west end of the pool house from his yard. Also the 1.2 m height gave Mr Bonhs a pleasant outlook down hill to the east from his yard that would not otherwise be there. 14 Mr Nash's main concern and departure from agreement with Mr Blyth was in regard to the fitting out of the pool house so it was capable of being used as a separate dwelling, even if it was only used by a relative of the family. It was conceivable it could be used as a granny flat. As well as the kitchen installed, the pool room itself was quite commodious and a full bathroom with high quality finishes and fit up was included. 15 Mr Blyth said it was not large enough to be a separate domicile, but Ms Walsh in cross examination made the observation the pool house and pool room were considerably larger than many studio apartments that qualified as dwellings under the statutes. 16 The applicant contested it's capability of being a separate domicile due to access constraints as seen on site. The only accesses to the pool house were either to come through the main house itself and across the backyard, or to go through the driveway gates through the garage and through a door onto a side path on the west of the allotment adjoining Mr Bohn's house and then walk down and across the backyard to the pool house. The applicant said it was not possible to occupy the pool house as The applicant contested it's capability of being a separate domicile due to access constraints as seen on site. The only accesses to the pool house were either to come through the main house itself and across the backyard, or to go through the driveway gates through the garage and through a door onto a side path on the west of the allotment adjoining Mr Bohn's house and then walk down and across the backyard to the pool house. The applicant said it was not possible to occupy the pool house as a separate domicile and therefore the fact that it had the capability to be so used did not make it a separate dwelling under the applicable definitions. 17 Mr Nash pointed out that on the east side of the subject house there was a side setback down which a separate pathway might be constructed. To erect a pathway the applicant pointed out it would be necessary to create a break in the entry pathway in the front garden, so one could easily cross the front yard and pass under a overhanging awning from the adjoining house to the east, and pass by the fuse box and then a set of stairs would need to be constructed down about 2 m drop to the ground level on the eastern side of the subject house. From there a pathway could be constructed to the rear yard and thereby the pool house. 18 It was true at the present time physical access was not possible via this route. However, Mr Nash believed that it could be created. 19 There were legal arguments in submissions about the issue of an Occupation Certificate and a Building Certificate that are in written submissions in Exhibits E and 6 of this hearing. I do not propose to go into them in great detail. I believe the determination of the appeals depends on the finding of fact that the changes to the pool house do make it capable of being used as a separate domicile, and that is not what the council consented to. 20 Condition 22 of the Development Consent that says the pool house is not to be used as a separate domicile confirms that. I do not accept the applicant's argument that there was no need to show the hot top, oven, dishwasher, top cupboards and loft on the plans. Nor do I accept that in respect of the kitchen fittings at least, the owner could put them in at will without needing further consent. The statute is clear that those works would not be exempt development. If they were shown on the plans, it is my conviction the council would have put a condition for their deletion as part of condition 22. In any case the respondent contends there is no need to issue an Occupation Certificate to enable the use of the pool house. Therefore I proposed to dismiss the Appeal No. 10486 for the Occupation Certificate. 21 In regard to the Building Certificate it is my opinion the roof of the pool house need not be changed, but the eave gutter needs to be altered in accordance with Exhibit G. Mr Bonh said that would be a better treatment but preferred the lowering of the roof. 22 In considering that I bear in mind the main components of the roof of the pool house and the ridge height are as approved. It is only the west end that is not built according to the architectural plans, and when one sees the structural plan, the architectural drawing was incorrect in its prediction of how it could be built. Since the majority of the roof constitutes most of the visual bulk and is as council approved I do not consider the visual impact of the change to be such that it needs partial demolition and rebuilding. 23 I do agree with Mr Nash and the respondent's submission that the hot top, oven and dishwasher need to be removed. The loft and top cupboards above the sink, I see no great need to remove them. The loft is within the roof space, and one can only kneel in it, and the use of it for a bed would have to be a Japanese futon style on the floor and a ladder safety handrail would be needed. At the time of the hearing it was used only for storage space without those facilities. A loft is not unexpected in a pool house, they are as a domestic facility, a multiple – use space. The top cupboards can be useful above a bar sink in a pool house, and do not create the capability of a separate domicile. 24 Therefore the orders of the Court are: 1. The appeal No. 10486 of 2005 is dismissed. 2. In appeal No. 10485 of 2005, the Leichhardt Council is hereby directed under s. 149F(3)(a) of the Environmental Planning and Assessment Act 1979 and Regulations to issue a Building Certificate in relation to DA 2002/381 and Construction Certificate CC 2003/98 subject to the applicant completing to Council's satisfaction: (a) the refitting of the western eave to the pool room of the eave gutter detailed as in Exhibit G attached hereto. (b) The removal of the hot top, oven and dishwasher in the pool room and making good to the cupboards they are installed in such that they cannot be reinstalled. 3. The exhibits are returned to the parties except Exhibits C, D, E, G, H and Exhibits 6 and 7. 4. No order as to costs. ___________________ K G Hoffman 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.