Land and Environment Court of New South Wales CITATION : McGowan v Leichhardt Council [2008] NSWLEC 60 APPLICANT Robert Bruce McGowan PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 10978 of 2007 CORAM: Moore C KEY ISSUES: Development Consent :- Modification application CASES CITED: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 Jones v Dunkel (1959) 101 CLR 298 EX TEMPORE JUDGMENT DATE : 14 January 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Ms R McCulloch, solicitor Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 14 January 2008 10978 of 2007 Robert Bruce McGowan v Leichhardt Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the modification of the conditions of a development consent. These modified conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the modified conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 COMMISSIONER: This is an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) concerning a development application for alterations and additions to a property known as 6 Waterview Street, Balmain (the site). On 26 November 2007, I attended the site with the applicant (who appears in person) and with Ms McCulloch, solicitor for Leichhardt Council (the Council) and those advising and instructing her. 2 On that occasion, I had no plans that showed those matters which departed from the original consent for which retrospective approval, pursuant to s 96 of the Act, was being sought. Consistent with the approach adopted by Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, it is open to the Court under those circumstances to grant retrospective consent to an amendment to a development application to reflect works as actually executed. 3 Because I had no plans that enabled me to consider the matter, I directed that Mr McGowan file and serve plans showing the "as built" structure demonstrating the variations for which approval was sought together with any additional unconstructed variations for which approval was sought. I set the matter down for further hearing (including a further view) and that took place on 6 December 2007 with the parties being represented as before. 4 On the second site attendance, Mr McGowan had with him Mr Peter Lonergan, of Cracknell Lonergan Architects Pty Limited, giving expert evidence on that occasion, concerning the variations for which Mr McGowan was seeking consent. The Council expert on that occasion was Mr Andrew Smith, an expert town planner. 5 I undertook that hearing on the basis of walking through the site and viewing with the parties all the matters that were in contention – particularly interrogating Mr Smith to seek to ascertain those matters which were not objected to by the Council. During the course of this site inspection, a wide range of issues fell away, either by agreement for further minor modification to that which was constructed or by the Council agreeing (for example, with respect to the location of the internal staircase) that there was no longer an issue pressed in the proceedings. 6 The outcome on that day was my understanding that all the issues were resolved between the parties and that it simply remained the position that Mr McGowan had to file and serve revised plans reflecting the agreement which had been reached and the Council was to file and serve settled conditions of consent reflecting that agreement. 7 I was subsequently advised, by facsimile transmission from both the respondent's solicitor and from Mr McGowan, that there were two matters about which it had been believed by the council that agreement had been reached but which Mr McGowan now wished to contest. These were: o the species proposed to be planted in the planter boxes at the first floor rear area of the premises; and o the height of the sandstone wall which is to enclose the non-trafficable and not to be used area to the west of the Juliet balcony which is permitted as an adjunct to the first floor rear bed and bathroom complex. 8 These matters arise in this context. The first, relating to the planting in the planter boxes, arises as a consequence of the plans which were filed on 14 December, by Mr McGowan, representing the outcome of the agreements between the parties and showing the planting in the planter boxes to be lilli pillis. 9 The second relates to the surrounding wall for the upper rear area (that is to be the fountain and planter box area). This wall was proposed to be reduced by one course of stone work. This area is presently surrounded, by a sandstone block wall which is of blocks approximately 600 mm or so long and 300 mm or so high and deep. There are three courses of such blocks. 10 During the course of the on-site hearing, Mr Smith and Mr Lonergan were asked by me (when we were standing at the rear ground level of the house looking up to that wall), whether it would be appropriate or not to require the removal of two courses of blocks or only one course of blocks - it having been agreed to by those experts that, in the context of rendering that area not a trafficable and habitable balcony area, the removal of some of the stonework was appropriate. It was the agreed position of Mr Smith and Mr Lonergan that the removal of one course of sandstone blocks was appropriate as removal of two courses would cause an inappropriate disruption to the scale and presentation of that wall above the door line and some corbelling on the wall. 11 Mr McGowan puts to me a number of reasons today as to why I should set aside that agreement between the experts (which had been accepted by me and, prima facie, accepted by him and the Council on site). I draw no inference from the fact that Mr McGowan has now withdrawn from that agreement, as he says he felt pressured to do so on site and I draw no adverse inference about that withdrawal. 12 I should also note, parenthetically at this time, that Mr McGowan had, prior to the original hearings, filed a statutory declaration which he now seeks to raise in these proceedings in which he says that on an unspecified date he had had a meeting with the Mayor of Leichhardt Municipal Council, the head of the Council's town planning department and her secretary during which those persons had agreed to the structures as he had erected them. 13 No notice was given to Ms McCulloch of the intention to rely on that statutory declaration on this occasion. The Mayor, the head of town planning and her secretary are not available to give evidence. Mr McGowan has not subpoenaed them. The Council, having not had notice of any intention to rely on that statutory declaration, even if the events described had any legal effect, are entitled not to be disadvantaged. I have, therefore, permitted the statutory declaration to be admitted to evidence (it not being objected to by Ms McCulloch) but I give it no weight, drawing as I chose to, a Jones v Dunkel [(1959) 101 CLR 298] inference that the evidence of the Mayor, the head of town planning and her secretary would not be of assistance to Mr McGowan in his case. 14 In any event they are not the officers who are responsible for approving or otherwise this application; the Council itself has not given a formal approval to this application thus, in any event, even if given, that evidence in itself would have little or no weight in these proceedings. 15 The evidence that Mr McGowan puts in support of the retention of the stone wall is from Mr Flitcroft, the owner of the property at 8 Waterview Street, being the property to the north and slightly downhill. His support is for the retention of the wall in order to protect his privacy. The wall is not to be a wall to a trafficable and habitable area. It is an area to be surrounded by a perimeter of lilli pillis, (or grevilleas as Mr McGowan proposes), but one which is, nonetheless, to have a vegetated hedge erected around its perimeter. 16 The Council placed in contention in its Statements of Facts and Contentions a number of matters concerning the rear bulk and scale of the proposed development, particularly of the wall which is subject to the current discussion. Mr Lonergan accepted the validity of those propositions on site. Mr McGowan now raises a number of objections to the previously agreed removal: o first, that the only objection is one which comes from Mr Thatcher who is at a property to the rear; o second, that removal of the stonework will, in some fashion, impact on his own privacy; and o third, that the second of the layers of stone which would become the top layer, is one which is of lesser quality stone from the top layer. 17 That final objection is one which is of little consequence because, as I propose to require Mr McGowan has to remove one row of stonework, if he chooses to do so he can remove both the top and second layers and replace the better stone in lieu of the lesser quality stone to a net effect of the removal of one layer of stonework. 18 The primary objections that the Council raised were twofold. They were accepted by the evidence of the experts on site. First is that the area was not appropriate to be in a form which would make it potentially a habitable trafficable area, and, second, that the height of the stonework was of inappropriate bulk and scale. Having viewed the property from Mr Thatcher's residence; having considered the controls and objectives that were contained in the Council's bundle; and accepting the evidence agreed to by the experts, I am satisfied that it is appropriate to require one course of stonework to be removed. As that area is not to be a habitable or trafficable area. and access will be for the purposes of maintaining the perimeter planter box only, issues of safety which might potentially arise are of such small concern that I do not consider they are any valid reason to permit the retention of the additional row of stonework. 19 I turn to the question of what trees should be planted in the planter box. The plans that were filed proposed lilli pillis. The trees now proposed by Mr McGowan are grevilleas. I have no expert evidence concerning these two types of trees. I have however, contrary to and overruling an objection from Ms McCulloch, admitted into evidence, as lay evidence, a statement by Mr John Cunningham, a senior landscape technical specialist with the New South Wales Department of Commerce. I have admitted that statement for a specific reason. 20 In the third and fourth paragraphs of that document Mr Cunningham deals with the question of privacy. He describes the planting in Mr Thatcher's property in the following terms: "I believe one of the objections to his development is an issue of privacy looking into the rear of 2/Queens Place Balmain. I noted that this property has established a hedge along the fence line of murraya paniculate (mock orange) which can reach a maturity height of up to seven metres which can be cultured to form an ornamental hedge. The present height of this plant species is at fence height, approximately 1.8 metres and if allowed to be pruned into a formal hedge over time will form a privacy screen. The other plant species noted in the rear of this property was elaeocarpus reticulatus (blueberry ash) which can reach a mature height of ten metres. It is my recommendation that over time these two plants species, once established to maturity, will achieve an effective screen to both properties". 21 It is that second paragraph which I have just quoted which sets out the fallacy of Mr Cunningham's position. It is the responsibility of this property to provide, within itself, privacy to the adjacent property from overlooking. It is not Mr Thatcher's responsibility to provide privacy for his own backyard against overlooking from the structures proposed to be erected by the applicant. 22 In this case, I am entitled to take regard the fact that, in a number of other cases before the Court I have dealt with lilli pillis and grevilleas. Lilli pillis are a denser species of tree and provide a better privacy barrier and visual protection than is the case with grevillea. 23 Although Mr McGowan raises a number of concerns about leaves, fruit, staining, water demand and the like, they do not overcome, in my view, the necessity for providing appropriate privacy screening. That privacy screening will not only protect Mr Thatcher but will also deal with the privacy issues raised by Mr Flitcroft, the resident immediately to the north and downhill at 8 Waterview Street and those raised by Mr McGowan himself. 24 The necessity for planting and privacy arises entirely from the nature of the construction that has been undertaken by Mr McGowan in departure from the original approval plans. Whilst I can understand Mr Gowan's desire not to interfere with the structures he has created (because I am prepared to acknowledge that it appears to have been a visually attractive and architecturally and environmentally - that is in terms of materials reused - sensitive renovation and extension), nonetheless I am obliged to have regard to the impact on surrounding properties and the appropriateness of what should be approved. 25 The consequence is that I decline to set aside the two conditions that will require the removal of one course of stonework and require the planting of lilli pillis in the planter box. 26 I note that Mr McGowan has raised the question of water consumption. I also note that the proposed garden area is to have a very large water feature, which might well, by its incorporation, cause greater water loss due to evaporation and exposure to sunlight than would be the case with the savings that might possibly be occasioned by substituting the unacceptable grevilleas for the acceptable lilli pillis. 27 The consequence is that the appeal will be upheld as to the agreed matters between the parties and, as to the disagreed matters between the parties, the conditions will reflect those matters contained in the plans, namely the removal of the top course of the sandstone blocks from the rear roof terrace area and the requirement that the planter box plantings be of lilli pillis rather than grevilleas. Tim Moore 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.