May v Pittwater Council [2010] NSWLEC 1027

Land and Environment Court of New South Wales

CITATION : May v Pittwater Council [2010] NSWLEC 1027

APPLICANT Kirk May PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 10489 of 2009

CORAM: Bly C

KEY ISSUES: BUILDING CERTIFICATE :- carport and deck attached to dwelling house, fire safety,

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1992 Building Code of Australia

DATES OF HEARING: 9 December 2009

DATE OF JUDGMENT: 9 February 2010

APPLICANT Mr T Sattler (solicitor)

LEGAL REPRESENTATIVES: RESPONDENT Ms B Phelan (solicitor) SOLICITOR Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

9 February 2010

10489 of 2009 Kirk May v Pittwater Council

JUDGMENT Introduction and background 1 On 22 April 2009 Mr V Milligan of Vaughan Milligan Development Consulting Pty Ltd made an application pursuant to s.149B of the Environmental Planning and Assessment Act 1979 for a building certificate to be issued under s 149A of the Act in respect of an existing timber deck above a carport and associated spiral staircase associated with the existing dwelling house at 26 Gondola Road, North Narrabeen. 2 The deck/carport is 17 m long 3 m wide and 4.75 m high and is attached to the existing two-storey brick and tile dwelling house. The deck is accessed from the first floor of the dwelling. 3 Adjoining the site to the west at 28 Gondola Road is a detached dwelling house. 4 According to the Statement of Facts and Contentions, on 20 July 1989 the council granted conditional building approval (BA 1737/89) for a roof covering to the then existing deck. On 25 July 1989 council wrote to the owner of the property noting that the original dwelling approval required that the deck have a 500 mm setback, but that this had not been met. In noting that the deck did not meet this requirement it was advised that the council did "not at this stage intend to take any action". 5 According to the application the deck has been in place for many years and was the subject of a "recent refurbishment" (ie removal and reconstruction). This refurbishment was, in part, in response to deterioration from water damage and is said to have been carried out to reflect the deck's original form and configuration including maintaining original levels and the 400 mm side setback from the property's western boundary. 6 The site is subject to the provisions of Pittwater Local Environmental Plan 1992 and pursuant to this plan the subject deck would be permissible with development consent. The neighbours' concerns 7 On 23 March and 4 May 2009 the neighbours at 28 Gondola Road wrote to the council explaining that the deck and stair: Affected the privacy in their garden and sunroom, Affected their solar access, Created noise from the use of the stair, Was a potential fire hazard, Devalued their property. 8 Since the expression of these concerns, privacy screens have been installed on the deck and the stair has been relocated. The only concern pressed by the council in this regard is that involving fire safety. The proposed order and the appeal 9 On 23 March 2009 the council issued a Notice of Proposed Order, followed on 23 April 2009 by an order (Order NOT 0021/09) requiring the demolition of the deck and stairs and the sealing of door openings from the dwelling to the deck within 70 days. The above-mentioned application for a building certificate was subsequently lodged with the council.