Land and Environment Court of New South Wales CITATION : Cominos v Newcastle City Council [2008] NSWLEC 1316 APPLICANT Dion Cominos PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10180 of 2008 CORAM: Brown C KEY ISSUES: Appeal :- application to modify approval for the construction of a dwelling - additional bedroom area - loss of outlook and view - bulk and scale - overshadowing - loss of privacy LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 20/06/08 EX TEMPORE JUDGMENT DATE : 20 June 2008 APPLICANT Mr M Staunton, barrister SOLICITORS Palmieri Law Firm LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister Ms D Grant, solicitor SOLICITORS Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 20 June 2008 10180 of 2008 Dion Cominos v Newcastle City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Newcastle City Council (the council) of an application to modify Development Consent No. 05/0776 for the construction of a dwelling at 7/230 Scenic Drive, Merewether Heights (the site). 2 The matter was initially conducted as a conciliation conference by Acting Commissioner Watts under s 34 of the Land and Environment Court Act 1979 on 17 April 2008 however in accordance with s 34(4) the conciliation conference was terminated as the parties did not reach agreement. A report was prepared setting out the issues in dispute in accordance with s 34(4)(a)(ii). The parties did not consent to Acting Commissioner Watts disposing of the proceedings with a further hearing. The reconvened s 34 conference was held on 20 June 2008 where following a further hearing, the proceedings were disposed of on-site. 3 The judgment reflects the Statement of Facts and Contentions, documents provided by the parties and the reasons given on site for my decision in accordance with s 34(5). 4 The site is irregular in shape and located at the north-western end of a common access drive servicing an eight lot community title subdivision. A 2-storey five bedroom dwellings with attached double garage, retaining walls, fencing and pool is constructed on the site. 5 The modification application seeks amendment to condition 1.1 that identifies the plans the subject of the approval. In essence, the applicant's seeks to substitute plans that provide for a 3.5 m x 4.5 m extension to the main bedroom on the first floor level. The extension has already been constructed. 6 The modification application also sought deletion of condition 40 that required the rendering of the existing block fence on the side facing the adjoining properties. At the hearing, the applicant did not oppose the imposition of this condition subject to some amendment of the wording to allow for access to carry out the rendering. As I understand, this was not opposed. 7 The council raised issue with the accuracy of the architectural plans but with the submission of further plans, this issue was not pressed by the council. 8 The parties agreed to the appointment of Mr Geoff Goodyer as the town planning single expert in the proceedings. 9 The following residents provided evidence on site: o Mr B Higginbottom of 7 Roentgen Close, o Mr M and Ms Hope of 43 Bershire Avenue, and o Mr L Spencer of 8/230 Scenic Drive. 10 The concerns of the residents related to: o the additional sense of overcrowding, o loss of outlook and view, o excessive bulk and scale, o overshadowing, and o loss of privacy. 11 Newcastle Development Control Plan 2005 (DCP 2005) is relevant. Element 5.1 addresses dwelling houses and provides design principles and guidelines for residential development. These are: 5.1.2 - Principle 1: Compatibility with neighbourhood character. 5.1.3 - Principle 2: Efficiency in design. 5.1.4 - Principle 3: Preservation and enhancement of landscaped character. 5.1.5 - Principle 4: Solar access. 5.1.6 - Principle 5: Consideration of views and privacy. 5.1.7 - Principle 6: Provision of identity. 12 The Statement of Facts and Contentions identified the proposed development as being in conflict with Element 5.1.6 (b)(i). This addresses protection of views and states that: i) Buildings should be designed and located so as to minimise the impact upon the outlook from the existing dwellings on adjacent lands. A significant proportion of any view from existing residences towards particular landscape or seascape elements and major point of interest are to be maintained where practicable. 13 Mr Goodyer states that there is no FSR control in DCP 2005 however the proposed bedroom extension is located within the building envelope and does not add to the site coverage. The extension has no impact on the provision of private open space and no impact on solar access to neighbouring properties. The bedroom extension creates no privacy or overlooking issues as it has no windows in its western elevation and high sill windows in its northern elevation. The window in the southern elevation is sufficiently distant (some 15 m) from the adjoining property to mitigate against potential mutual loss of privacy. 14 In accepting that the proposed extension will increase the bulk and scale of the dwelling from neighbouring properties, Mr Goodyer states that the cumulative bulk and scale of the proposed bedroom extension and the existing dwelling is simply a building form that would normally be expected under the council's relevant planning controls. Views are not impacted sufficiently to warrant a redesign taking into the principles on view loss established in Tenacity Consulting v Warringah [2004] NSWLEC 140. 15 With the benefit of the site view and an inspection from each of the residents who opposed the proposed development, I agree with the conclusions of Mr Goodyer. Element 5.1.6 (b)(i) of DCP 2005 is a sub element of one of the six elements identified in Element of 5.1. To properly consider the impact of the proposed bedroom extension it is necessary to consider all the relevant parts of DCP 2005. Importantly, Principle 1: Compatibility with neighbourhood character contains numerical requirements for site coverage, building envelope, setbacks and fences. There was no dispute that the proposed development (including the bedroom extension) satisfies these requirements. If the bedroom extension created a breach of one or more of these requirements then the concerns expressed by the adjoining residents could be given greater weight. 16 I agree with Mr Goodyer that while the bedroom extension will increase bulk and scale when viewed from the adjoining properties it is within the envelope contemplated by the councils planning controls. I also note that the building form does not maximise the area within the building envelope. I similarly agree that the bedroom extension creates no unacceptable privacy impacts or impacts unacceptably on the existing views or outlooks. 17 I am satisfied that the modification of the approval for the dwelling is acceptable, in that the objectives of Element 5.1 of DCP 2005 achieved. 18 At the hearing the parties were directed to provide Short Minutes of Order to reflect the findings given on site. Liberty to restore the matter on 48 hours notice was given if there was any dispute over the conditions. 19 The parties were in dispute over conditions 1.1, 40 and 44. On 22 July 2008, the parties were directed to file their version of the disputed conditions with short submissions on the reasons for their conditions by 30 July 2008. Ultimately, the council did not press their amendment to condition 44 and the applicant accepted the amendment proposed by the council for condition 1.1. 20 The councils amendment to condition 40 is shown underlined below: 40 Subject to the affected neighbour providing access and the applicant giving each neighbour at least 3 days notice of the date on which the works are to be carried out , the applicant undertaking appropriate rendering to the rear (neighbours' side) of the exposed masonry retaining walls/fences constructed on the common side and rear boundaries. The rendering of the walls is to be to the same standard as the rendering undertaken on the masonry fence along the eastern boundary of the subject site. The required works are to be undertaken by an appropriately qualified tradesman in a good and workmanlike manner . The rendering of all of the neighbour's side of the walls is to be completed prior to the issue of a final Occupation Certificate, or in any event before 30 September 2008 . 21 Mr Staunton for the applicant submits that the amendments relating to notice are not appropriate for a planning consent. The law on trespass is clear and the applicant cannot enter a neighbour's property without consent. All that is required for the purpose of the consent is "reasonable notice". The requirements that the rendering be undertaken by "qualified tradesperson" and in a "proper and workmanlike manner" is also inappropriate and is controlled by other legislation. A time limit is also an appropriate given that the council has power to require to issue an order to complete a development within a specific time. 22 Ms Grant for the council submits that the amendments are appropriate in that the applicant should be required to give that leaves three days notice of the date on which the rendering works are to be undertaken. "Reasonable notice" is too open to interpretation. The requirements that the rendering be undertaken by "qualified tradesperson" and in a "proper and workmanlike manner" is appropriate given that it would discourage poor workmanship. The proposed time limit for the rendering of the walls is also appropriate as the applicant has already commenced occupation of the premises without an Occupation Certificate and as such the usual control on completion is absent in this case. 23 In relation to the dispute over condition 40, I accept that it is appropriate for the adjoining owners be given reasonable notice to allow for workmen to enter their properties to render the walls. I agree with Ms Grant that a specific period of notice is appropriate and that 3 days is reasonable. I am satisfied that it is unnecessary for the work to be undertaken by a "qualified tradesperson" however it should be done in a "proper and workmanlike manner". I also accept the submissions of Ms Grant that there should be a time limit placed on the rendering of walls on the adjoining properties given the inability to rely on the approval of an Occupation Certificate. In my view, a period until 30 September 2008 is reasonable considering that the applicant agreed to undertake the work when the Court was on-site on 20 June 2008. A period in excess of 3 months is not an unreasonable time for the work to be carried out 24 The Orders of the Court are: 1) The appeal is upheld. 2) The application to modify Development Consent No. 05/0776 for the construction of a dwelling at 7/230 Scenic Drive, Merewether Heights is approved by the following modifications: Condition 1.1 is deleted and replaced with: 1.1 Except as otherwise provided by conditions of the development consent (as modified), the proposed development being carried out strictly in accordance with the details on the submitted plans and on the Application as amended by revised plans, Sheets 4- 9 marked "Section 96", received under cover of a letter from Pad Design dated 20 December 2006 and as further amended by drawings titled "Section 96" Phil Hendrie Building Design being Sheets No. 5 to 8 filed with the Court on 18 June 2008 and being Exhibit A in these proceedings. Condition 40 is deleted and replaced with: 40 Subject to the affected neighbour providing access and the applicant giving each neighbour at least 3 days notice of the date on which the works are to be carried out, the applicant undertaking appropriate rendering to the rear (neighbours' side) of the exposed masonry retaining walls/fences constructed on the common side and rear boundaries. The rendering of the walls is to be to the same standard as the rendering undertaken on the masonry fence along the eastern boundary of the subject site. The required works are to be undertaken in a good and workmanlike manner. The rendering of all of the neighbour's side of the walls is to be completed prior to the issue of a final Occupation Certificate, or in any event before 30 September 2008. 3) The exhibits are returned with the exception of exhibit A. ____________ G T Brown 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.