Land and Environment Court of New South Wales CITATION : Antella & Lloyd Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 348 APPLICANT Antella & Lloyd Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11253 of 2006; 10360 of 2007 CORAM: Tuor C Building Certificate - Development Application :- car park slab constructed without consent KEY ISSUES: impact on trees, adjoining property and character of the area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 Land and Environment Court Act 1979 CASES CITED: Ireland v Cessnock City Council [1999] 110 LGERA 311 ; Taipan Holding Pty Limited v Sutherland Shire Council [1999] NSWLEC 276 DATES OF HEARING: 14 /05/2006, 18/05/2007 EX TEMPORE JUDGMENT DATE : 18 May 2007 APPLICANT Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor Deacons Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 18 May 2007 11253 of 2006 Antella & Lloyd Pty Ltd v Ku-ring-gai & 10360 of 2007 Council JUDGMENT 1 These are two appeals against Ku-ring-gai Council's (the council) refusal of: i. a development application under the Environmental Planning and Assessment Act (the EPA Act) for alterations to an existing house at 5 Links Avenue, Roseville (Appeal No 11253 of 2006) ii. a building certificate application under s 149 of the EPA Act (Appeal No 10360 of 2007). 2 The building certificate application seeks to rationalise a raised concrete slab used to park two cars. The slab has an area of about 186 sq m, its height ranges from about 300 mm above existing ground level at the eastern end to about 900 mm at the western end. The parking is accessed off Babbage Road via an existing access point. The slab was constructed without consent and was originally larger in size. 3 Following the site inspection on 14 March 2007, the applicant agreed to remove part of the slab to reduce its impact on the three trees along the eastern boundary fronting Babbage Road. 4 The development application initially included the slab with the addition of stairs and a balustrade as well as conversion of the existing garage into a rumpus room. 5 On the first day of the hearing, the parties agreed that no retrospective approval can be granted under a development application and therefore a building certificate application was required to rationalise the unapproved works, which should be excluded from the development application. Council raised no issue in relation to the other works proposed in the development application. 6 The site, its context, the history of the application and the planning controls are summarised in the Statement of Basic Facts. 7 The Court heard expert evidence on site from Mr Glendenning, planner for the applicant, Mr Ford, the applicant's arborist, Ms Rae, council's planner, and Mr Fenn, council's arborist. Ms Rae, Mr Fenn and Mr Antella, the applicant, also gave evidence in Court on 18 May 2007. 8 The main issue in dispute was the impact of the size and height of the slab on the character of the area and the tree closest to the driveway. 9 The parties disagreed on the correct manner to assess the building certificate application. Mr McKee, for the applicant, submitted that the considerations were limited to issues such as structural soundness. Mr Rigg, for the council, submitted that the broader application outlined by Bignold J in Ireland v Cessnock City Council [1999] 110 LGERA 311 should be applied. This is summarised more fully by Bignold J in Taipan Holding Pty Limited v Sutherland Shire Council [1999] NSWLEC 276 where his Honour at para 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). 10 Further, at para 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. 11 I accept the submission of Mr Rigg on the basis of Justice Bignold's decision. 12 Mr Rigg made a further submission in relation to the jurisdiction of the Court to deal with the building certificate application as council, on 4 April 2007, had issued an Order under s 121 2B item 2A of the EPA Act requiring demolition of the slab. The applicant had not appealed against this Order. Mr McKee explained that this has not occurred because the applicant had given an undertaking at the first day of the hearing that if the Court were to dismiss the appeals the slab would be demolished and that an Order was therefore not necessary. 13 As I understand Mr Rigg's submission, s 281C of the Environmental Planning and Assessment Regulation (the Regulation) specifies that: a building certificate must contain a statement to the effect that the council is satisfied as to the matters specified in s 149D(1) of the Act. 14 Section 149D(1) relevantly provides that: Council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act (1993): (i) to order the building to be demolished, altered, added to or rebuilt. 15 I do not accept Mr Rigg's submission. Section 149D(1)(b) provides: there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 16 Under s 39(2) of the Land and Environment Court Act, the existence of the Order would not limit the power of the Court to approve the building certificate application. If the building certificate is acceptable on its merits there would be no utility in proceeding with the Order. 17 On its merits, council's main concern related to the proximity of the slab to the tree adjoining the driveway. The applicant has agreed to further reduce the slab in accordance with Mr Fenn's recommendations to assist in mitigating the impact on this tree. The applicant has also agreed to an arborist monitoring the health of this and the other two trees at six monthly intervals for a period of two years. 18 Ms Rae's main concern related to the use of the slab for parking and the impacts of noise, fumes and privacy on the adjoining property at 7 Links Avenue. She also considered the slab to adversely impact on the character of the area. 19 In relation to noise and fumes, I do not consider that the impact from parking two vehicles is beyond that to be expected in a residential environment, particularly when it adjoins a major road. 20 In relation to privacy, a 1.8 m fence with lattice above is proposed which provides a minimum height of 1.5 m above the slab. This will limit any overlooking of the adjoining property. 21 The extent of the slab is not visible from Babbage Road and from the public domain it will not appear any different to the access provided to other residential developments. The size of the slab has been reduced but council requires entry and exit to the site in a forward direction onto Babbage Road. The slab is therefore generally consistent with the size of a slab necessary to serve this function. 22 Ms Rae considered the proposal to be inappropriate as there is already a carport and access off Links Avenue. Clause 4.5.1 of Development Control Plan 38 discourages more than two car spaces in locations where there is availability of public transport. The bus stop is nearby, however, there is no parking allowed on Babbage Road. The site has two street frontages and there has always been access and parking off Links Avenue as well as off Babbage Road. Maintaining car access and parking from both frontages is therefore acceptable. 23 The amenity of the open space facing Babbage Road is poor due to the volume of traffic using the road and the house with its lounge room is better orientated to the open space at the front of the property, facing Links Avenue. For these reasons, I consider the provision of the two spaces off Babbage Road, as well as the carport off Links Road is not inconsistent with the residential use of the property. 24 The only other issue is the height of the slab, which is a maximum of about 900 m in close proximity to the house. While I consider it to be an unfortunate relationship, I accept that the orientation of the house and its open space is better suited to Links Avenue and the height of the slab is not sufficient reason to warrant refusal of the building certificate application. 25 Amended plans which incorporate the recommended changes and clearly indicate the works to be approved in the development application and the building certificate application are required. Final Orders will then be issued in Chambers Directions Final plans and conditions are to be filed by 22 May 2007. ___________________ Annelise Tuor Commissioner of the Court 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.