Land and Environment Court of New South Wales CITATION : Chapman v Warringah Council [2010] NSWLEC 1339 APPLICANT Brian and Melissa Chapman PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10696 of 2010 CORAM: Tuor C KEY ISSUES: BUILDING CERTIFICATE :- unauthorised works impact on residential amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Warringah Local Environmental Plan 2000 CASES CITED: Ireland v Cessnock City Council [1999] NSWLEC 250 Taipan Holdings Pty Limited v Sutherland Shire Council [1999] NSWLEC 276 DATES OF HEARING: 21 October 2010 EX TEMPORE JUDGMENT DATE : 21 October 2010 APPLICANT Mr M Staunton, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 21 October 2010 10696 of 2010 Chapman -v- Warringah Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (council) of a building certificate application under s 149F of the Environmental Planning and Assessment Act 1979 (EPA Act) for unauthorised building works at 20 Ian Lane, North Curl Curl (the site). 2 The unauthorised works in the building certificate application relate to changes to floor levels and consequential changes to walls and roofs approved under development consent 2005/398 (development consent) for a new residential dwelling. 3 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the council. 4 A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 18 October 2010 and adjourned for further information until 21 October 2010. The parties did not reach agreement and the conciliation conference was terminated. The parties agreed to my disposing of the proceedings under s 34(4)(b)(i) and that the evidence on site and the site inspection would be considered as evidence in the proceedings. Evidence 5 The Court heard evidence on site from residents who both supported and objected to the proposal. The residents who objected were principally concerned that the development had not been constructed in accordance with the consent. They noted that the development assessment had been a long process which had involved changes to the application and that the "illegal works" undermined the process. 6 The adjoining neighbours at 22 Ian Lane was concerned that the development consent had already severely impacted on their amenity and that the changes would have further impacts. In particular, they considered that the increase in height of the south eastern wall by 900 mm and the southern wall by 600 mm would increase the bulk of the building, reduce solar access into their north facing side windows and eliminate their views of the sky. 7 The owner of 24 Ian Lane was concerned about the bulk of the building and the loss of views from the increased roof height. The adjoining owner at 18 Handoube Parade considered that the increased floor level impacted on his privacy. While he would prefer that the proposal be built in accordance with the development consent, he acknowledged that an increase in the height of the boundary fence would limit overlooking of his property. 8 The Court heard expert planning evidence on site and in Court from Mr Goodyer, for the council, and Mr Boston, for the applicant. Their positions are summarised in their joint report (Exhibit E). 9 The planners agree that the development consent and the construction certificate plans contain inconsistencies to clearly determine the level of roof over the south eastern wall. They agree that the most reliable level of the top of the gutter of the south eastern wall, as approved, is RL 46.582 (shown in drawing no. 1945 CC 11A). The as built plan shows a top of gutter level of RL 47.3, which is 718 mm higher than the approved level. 10 The planners agree that the approved roof level of the southern wall is RL 47.2 (drawing no. DA-06E) and the as built plan is RL 47.71, which is 510 mm higher than the approved level. 11 The planners agree that the appropriate way to assess the changes is as a notional application to amend the development consent as if the structures were not constructed. The planners assessed the proposal's compliance with Warringah Local Environmental Plan 2000 (LEP 2000). They agree that drawing C40/10 (Exhibit D) indicates the compliance of the building with the side boundary envelope control for Curl Curl F5 locality in LEP 2000. The drawing shows that most of the building complies with the control including the south eastern wall. Part of the southern wall exceeds the control by up to a maximum of 819 mm to the underside of the roof, resulting from a drop in the ground level at this point. The planners agree that this non-compliance does not result in material impacts and that a variation to the control under cl 20 of LEP 2000 is appropriate and that the proposal is consistent with Desired Future Character for the Curl Curl F5 locality, the General Principles of Development Control in LEP 2000 and relevant State policies. 12 The planners agree that parts of the building exceed 7.2 m in height when measured to the underside of the ceiling. However, as the slope of the land is greater than twenty per cent, they acknowledge that the Building Height Control permits a relaxation of the 7.2 m control as the overall building height does not exceed 8.5 m, the building is suitably designed and located to minimise its bulk and has minimal visual impact when viewed from the down slope side of the land. 13 The planners conclude that: We have assessed the impacts of the proposal as a whole, not merely the marginal impacts arising from the change between the improved building and the "proposed" changes. In our opinion, the building provides for reasonable privacy between dwellings (subject to amendments to the privacy wall on the northern boundary), reasonable sunlight is maintained to neighbouring properties (in particular, substantially more than two hours sun light is retained to the deck and two of the north facing windows of the living area of No 22 Ian Lane), reasonable view sharing is maintained, (noting that the upper level of the building has been set back from the rear boundary to retain northern views from parts of No 22 Ian Lane across a side boundary) and the building bulk is satisfactory (noting the adoption of a low pitched roof and the articulation of the walls of the building). 14 While Mr Goodyer expressed concern about some aspects of the building, both he and Mr Boston considered that, on balance, it is reasonable to approve the building certificate application subject to conditions. 15 The only area of disagreement between the planners related to the extent privacy screen along the northern boundary. They both agree that the wall along the northern boundary should be increased in height by a 500mm louvred privacy screen to reflect the increase in the level of the kitchen/dining room floor by 500 mm. 16 Mr Goodyer considered that the louvred screen should extend the full length to prevent any line of sight from the north east corner window of the dining room of the dwelling into 18 Handoube Parade. Mr Boston considered that the privacy screen should extend 5.7 m from the north east corner of the bedroom 1 ensuite, as this would adequately address any privacy issues. Findings 17 The parties agree that the proper approach to exercising the Court's discretion under s 149F of the Environmental Planning and Assessment Act is established by Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 250. This is summarised more fully by Bignold J in Taipan Holdings Pty Limited v Sutherland Shire Council [1999] NSWLEC 276, where his Honour at [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). 18 Further, at [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 19 The planning experts have assessed the merits of the proposal as if it were a notional application. They both agree that the proposal has acceptable impacts and meets the planning controls in LEP 2000. While I acknowledge the concern of the neighbours about the process and the conduct of the applicant, of itself, this is not a reason to refuse the building certificate application. 20 I accept the planners' evidence that the impact of the proposal is acceptable, given that it will not result in material impacts in terms of bulk, overshadowing or view loss. I therefore accept that a building certificate may be issued. 21 In relation to the dispute between the planners regarding the privacy screen, I accept Mr Boston's evidence that the screen should extend at the additional 500mm height for a length of 5.7 m. There is adequate separation between the north east dining room and the adjoining property. Both properties are orientated towards the view and a person would need to stand at the north east dining room window and look back at an angle to view the adjoining property. I am satisfied that the additional height and extent will provide acceptable privacy to both dwellings. 22 I am therefore satisfied that a building certificate may be issued but consider that the changes need to be accurately shown on the plans prior to my final orders being issued. Directions 1. Applicant is to serve building certificate plans and Short Minutes of Order within 7 days. 2. Parties are to file agreed Short Minutes of Order and plans within 7 days of the date of service of Direction 1. 3. Liberty to restore on 2 days notice. Final orders are to be issued in Chambers upon receipt of agreed Short Minutes of Order and plans ___________________ Annelise Tuor Commissioner of the Court ajl 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.