Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088

Land and Environment Court of New South Wales

CITATION : Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088

APPLICANTS Gary Felthouse PARTIES : Nora Felthouse

RESPONDENT Ashfield Council

FILE NUMBER(S) : 10933; 10934 of 2009

CORAM: Pearson C

KEY ISSUES: SECTION 121B ORDER :- Building certificate unauthorised building works

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Ashfield Local Environmental Plan 1995

CASES CITED: Ireland v Cessnock City Council (1999) 110 LGERA 311

DATES OF HEARING: 16 April 2010

EX TEMPORE JUDGMENT DATE : 19 April 2010

APPLICANTS Dr S Berveling, barrister Instructed by LEGAL REPRESENTATIVES: Mr D Mitchelmore CP White & Sons RESPONDENT Mr K Webber, solicitor Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

19 April 2010

10933 of 2009 Felthouse & Anor v Ashfield Council 10934 of 2009 Felthouse & Anor v Ashfield Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 These are two separate but related appeals in respect of premises at 5 Farleigh Street, Ashfield (the subject property). In matter 10933 of 2009 the applicants, Mr Gary Felthouse and Mrs Nora Felthouse, appeal under s 149F of the Environmental Planning and Assessment Act (the Act) against a refusal by Ashfield Council (the Council) to issue a building certificate. Matter 10934 of 2009 is an appeal under s 121ZK of the Act against orders issued pursuant to s 121B of the Act on 17 November 2009 in respect of the subject property. 2 The proceedings were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 8 February 2010 which commenced on site. Through the course of further discussions between the parties agreement has been reached on a number of the issues in dispute. There remained one issue in dispute, and there being no agreement as to the terms of a decision such that either of the proceedings could be disposed of under s 34(3) of the Court Act, the conciliation conference was terminated. The parties agreed to my disposing of the proceedings and consented to the admission of evidence from the conciliation conference. 3 A hearing was held on 16 April 2010 at which further evidence was tendered and oral evidence was given by Mr Greg Patch and Mr Robert Moore, both architects and heritage consultants, on behalf of the applicants and the Council respectively. Background 4 The subject property is a two-storey building located near the corner of Farleigh Street and Clissold Street, Ashfield. The house was erected in 1884, and by 1890 was known as "Darlington Villa". In an appendix to a Statement of Heritage Impact provided by Mr Patch on behalf of the applicants, Mr Gary Felthouse outlined the history of the works done to the property after he and his wife purchased it in 1992/1993. It had previously been rented to a group of students and had consisted of some twenty rooms and corridors. During the 1980s they undertook repairs to the roof, plumbing, electrical work, ceilings and garden. In the late 1990s they demolished and rebuilt the front veranda as it was; rebuilt the rear and side verandas; and undertook work in the basement which had regularly flooded. In the late 1990s/early 2000s they removed and replaced the slate roof, replaced the framing and floor in the attic, installed gyprock walls and ceiling, and installed a cedar joinery staircase in place of a pull down attic stair. In the early 2000s they replaced glass in interior windows, added skylights to the south face of the roof, added an interior corridor to the first floor veranda, and renovated the bathrooms. In 2005/2006 they relocated the kitchen and replaced floorboards. The swimming pool at the rear of the property was constructed in the early 2000s. 5 The works undertaken to the house by the applicants are summarised in the joint report by Mr Patch and Mr Moore in the following terms: - Alteration of the main roof, by the extension of its main ridge and side wall planes, to a new western gable end wall with windows, replacing the former hipped end of this main roof;