Land and Environment Court of New South Wales CITATION : Johnson v North Sydney Council [2007] NSWLEC 604 APPLICANT David Johnson PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 11004 of 2006; 10143 of 2007 CORAM: Tuor C Section 121B Order - Section 96 Application :- KEY ISSUES: Work constructed without consent impact on adjoining neighbours solar access LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 16 May 2007 EX TEMPORE JUDGMENT DATE : 16 May 2007 APPLICANT Mr J Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T To, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 16 May 2007 11004 of 2006 David Johnson v North Sydney Council 10143 of 2007 PRELIMINARY JUDGMENT 1 Appeal No. 10143 of 2007 is an appeal against the refusal by North Sydney Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (DA1047/90) for an infill development at 562 Miller Street Cammeray. The application was approved by council on 12 July 1991. The s 96 application was lodged on 20 October 2006 and seeks approval for unauthorised work. The s 96 application was refused by council on 22 February 2007. 2 Appeal No. 11004 of 2006 is an appeal against an order No. 15 under s 121B of the Act to demolish unauthorised works and rectification in accordance with the approved plans. 3 The parties agreed that the appeals could be heard together. 4 The site, its context, the history of the application and the planning controls are in the Statement of Basic Facts for each appeal. 5 The Court visited the site and heard evidence from the adjoining neighbours, Mr and Mrs Carpenter of 18 Vale Street, Cammeray. The Court also heard evidence on site from Ms K Gordon, planner on behalf of the applicant, Ms G Nalder, planner on behalf of the council and Mr J Mills, council's expert on solar access. 6 Following advice from experts the parties agreed to amendments to the proposal which would involve demolition of some of the unauthorised work and which would reduce the impact on the adjoining neighbours. 7 The main concern of council and the residents was that the increased wall height along the southern boundary resulted in significant overshadowing of the open space at 18 Vale Street. Ms Gordon explained that the works had been undertaken as the approved drawings could not be constructed and provide satisfactory head height between the ground and first floor. The proposed amended plan would provide a solution, which would increase the wall height above that which was approved but not increase the overshadowing of the courtyard to 18 Vale Street in a material way beyond that which was approved. Mr Mills confirmed that this was correct. This largely addressed Mr and Mrs Carpenter's concern. However, they raised the issue that the increase in the boundary fence required to conceal the water tank would also reduce solar access in summer. 8 I do not consider this to be a determinative issue. The increase in the fence is minor and results in only a minor reduction in solar access to the patio which occurs only in summer. The impact is acceptable particularly when balanced against the benefits of providing a rainwater tank. 9 The proposed amendments to the terrace and the planter box were agreed to be satisfactory. The only other issue was the pergola at the rear of the property. Council raised concern that it would impact on the ability to provide soft landscaping and screening to the adjoining properties. The parties agreed that a landscape plan would be provided which demonstrated the interrelationship of the pergola and the landscaping. Provided adequate landscaping can be provided there is no reason why the pergola is not acceptable. Directions 10 The Court makes the following Directions in accordance with the Short Minutes of Order dated 16 May 2007, as amended during the hearing. 1. The Applicant shall deliver to the Council 3 copies of amended plans by Wednesday 30 May 2007, incorporating the following agreed amendments to the section 96 application (Revision H plans): a. The height of southern wall at the first floor shall have an internal height of 1.3 metres above the existing floor level. b. Consequential changes to the pitch of the lower roof section, subject to the ridge height of the roof not exceeding RL 72.692. c. Relocation of the proposed rainwater tank above the proposed drainage pit so that the top of the tank is no higher than the top of the existing boundary wall with No. 18 Vale Street, ie. at RL 69.54. d. Providing details for drainage of the planter box. e. Omission of the glass enclosures proposed for the patio, and inclusion of a gate in the approved balustrade on the southern side to allow for access and maintenance of the planter box and the rainwater tank. 2. The Applicant shall deliver to the Council 3 copies of amended landscape plans by Wednesday 30 May 2007 including details of: a. the areas for soft and hard landscaping; b. drainage of the planter box; c. planting along the whole of the driveway to the street frontage; d. numbers of plants and trees, species type and height at maturity; e. maintenance of the landscaping. 3. The Applicant is to file a copy of the amended plans (both architectural and landscaping) and serve a filed copy on the Respondent's solicitor by Thursday 31 May 2007. 4. The Respondent is to file and serve any amended draft conditions in respect of appeal no. 10143 of 2007 by Friday 15 June 2007. 5. The Respondent is to notify the Court and the Applicant if any further objection is taken to the amended plans and if not, the orders proposed to dispose of both appeals. 6. The parties have liberty to approach the Registry, by e-court or otherwise, to obtain a further hearing date if required, after 15 June 2007. Otherwise the matter may proceed by orders to be made in chambers ___________________ Annelise Tuor Commissioner of the Court DK 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.