Land and Environment Court New South Wales Medium Neutral Citation: Xiang v Kogarah City Council [2014] NSWLEC 1004 Hearing dates: 27 November, 4 December 2013 Decision date: 14 January 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [64] Catchwords: APPEAL - Orders - Alterations to existing dwelling - Whether building work undertaken without development consent - Whether non compliance with development consent - Privacy and amenity impacts - Terms of Order Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kogarah Local Environmental Plan 2012 Category: Principal judgment Parties: Michael Y Xiang (First Applicant) Janie Y Xiang (Second Applicant) Kogarah City Council (Respondent) Representation: Mr A Beatty, Beatty Legal Pty Ltd (Applicants) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10652 of 2013 Judgment 1The applicants appeal against Orders 2 and 15 issued by the respondent Council under s 121B of the Environmental Planning and Assessment Act 1979 (the Act) on 31 July 2013 (the Order) in relation to building works undertaken at 45 Carlton Crescent Kogarah Bay (the site). 2Located on the site is a single dwelling which is currently in the process of being renovated. The building works comprise significant alterations to the existing dwelling and detached triple garage at footpath level, and new swimming pool and structures to the rear of the site. The site is located on the northern side of Carlton Crescent and slopes steeply across the site from the north eastern boundary to the south eastern boundary. Adjoining the site on the higher, north eastern, boundary, is 43 Carlton Crescent. Adjoining the site on the lower, south western boundary, is 47 Carlton Crescent. Development History 3On 29 June 2006 the Council approved Development Application No 25/2005 (DA 25/2005) for alterations and additions to the existing dwelling, construction of retaining walls and terraced landscaping to front and rear of the site. 4On 19 June 2008 a Complying Development Certificate (the CDC) was approved by the Council for the construction of a swimming pool and spa within the rear yard of the site. 5On 11 February 2009 the Council approved a modification application under s 96 of the Act to add a lift in the building, and window changes. A further modification application was approved by the Council on 22 January 2010 to modify windows, a balcony, awnings and the front entry area (the 2010 Modification). 6On 11 May 2010 the Council approved Development Application No 51/2010 (DA 51/2010) for alterations and additions to the existing dwelling including an underground passageway, modified location of the swimming pool, outbuilding and landscaping. Condition 6 of DA 51/2010 provides: (6) Land levels are not to be raised from the existing rock shelf within 900mm from the boundary with 47 Carlton Crescent and any fences adjacent to the boundary are to be a maximum 1.8 metres in height above the natural ground level and in accordance with the Dividing Fences Act 1991. 7During the course of the hearing the Council's representative advised the Court that the Council files did not appear to include a BASIX certificate for DA 51/2010. The possible effect of the potential invalidity of this development consent on the Order the subject of this appeal, which relied on both orders 2 and 15 in the Table to s 121B of the Act, is addressed in the consideration below of the terms of the Order relating to the structures in the rear of the site. 8On 12 October 2011 the Council issued a Notice of Proposed Order in respect of unauthorised building works including the concrete slab at the front patio/entry, the concrete slab in the rear yard and installation of a window not in conformity with development consents 51/2010 and 25/2005. The Council issued an Order in relation to unauthorised building works on 15 November 2011. 9On 15 June 2012 the applicants lodged a s96 modification application with the Council. The Council requested further information and updated architectural plans. The applicants lodged amended plans on 20 July 2012 and those plans were notified to adjoining and affected owners. On 2 October 2012 the applicant provided further amended architectural plans and on 10 December 2012 the Council approved the s 96 modification application DA 25/2005/5 (the 2012 Modification). 10The terms of the 2012 Modification, notified to the applicants on 18 December 2012, added the following conditions: 28. The section of the south western side concrete front entry slab is to be cut back and removed in order to reinstate the 1.2 metre setback that was previously approved in Development Consent 25/05. A garden bed is to be installed at natural ground level, as was previously approved between the side boundary and the front entry patio. 28a. The sliding glazed panels to the highlight window on the ground floor of the north eastern elevation, are to be removed and replaced with one fixed glazed translucent (obscured) panel that is permanently fixed in position and cannot be opened. 11On 19 December 2012 the Council issued a Notice of Proposed Orders in relation to the entry/patio slab, the rear slab along the south western boundary and the void under the rear slab. There was correspondence between the applicants and Council (included in the Council's bundle, exhibit 5), and an on site meeting on 13 February 2013 attended by Councillors, Council staff, the applicants' architect and the neighbours at which the applicants' response to the proposed orders was discussed, and further plans were provided on 26 February 2013. Additional information was subsequently provided. 12The Order the subject of the appeal was issued on 31 July 2013, in the following terms: Terms of Order: 1.The section of the south western side concrete entry patio slab is to be cut back and removed in order to reinstate the 1.2metre setback that was previously approved in Development Consent 25/05. A garden bed is to be installed at natural ground level, as was previously approved between the side boundary and the front entry patio. 2.The sliding glazed panels to the highlight window on the ground floor of the north eastern elevation are to be siliconed and fixed permanently into place with tamper proof screws. The glazed panels must remain obscure glass. 3.The completed 0.300 metre thick concrete slab overhang adjoining the south western side boundary and located within the rear of No 45 Carlton crescent Kogarah Bay shall be cut back by 0.900 metres from the south-western side boundary to enhance the amenity of the adjoining property, as shown in red on drawing No.02 revision E dated 15 August 2012 drawn by Tecton Group. 4.A raised landscape bed 1200mm wide and 1000mm height shall be provided for the length of the concrete slab (after reduction of the slab in conformity with Point 4) along the south western boundary. This is to be returned inwards along the south western edge of this concrete slab for a minimum length of 3 metres. The landscape bed is to be constructed in masonry and be suitably planted and a 500mm privacy screen is to be installed on top of the external perimeter including the 3 metre return for its entire length to the satisfaction of Council officers. 5.The external faces of the constructed concrete block wall located along the south-western side boundary of No 45 Carlton Crescent and adjoining No 47 Carlton Crescent Kogarah Bay is to be rendered and painted on all sides of the concrete block wall in a good, clean and workman like manner to the satisfaction of the adjoining neighbour or Council if no agreement can be reached. 6.The proposed water tank storage area, located under the elevated slab within the rear of the subject site, is to be modified so that it is not used for habitable purposes in the following manner: i)The proposed opening is to be reduced to a maximum width of 1200mm with a maximum height of 2500mm. ii)No further opening or penetrations are to be constructed on any of the external walls of the enclosing structure. iii)The water tanks proposed are to be at least four (4) in number and each is to have a capacity of at least 2500L and equally spaced along the long length of the structure. Reason for the Order: 1.Development Consent DA 25/2005 is not being complied with in that the front entry patio concrete slab is constructed up to the south-western side boundary of the subject site and has been built contrary to and not in conformity with the approved plans. 2.Development Consent DA 25/2005 is not being complied with in that the installation of windows to the north eastern elevation of the subject dwelling as been installed contrary to and not in conformity with the approved plans. 3.The condition number 6 of the Development Consent DA 51/2010 is not being complied with in that the concrete slab is constructed up to the south-western side boundary. 4.The unauthorised building works involving the front entry patio concrete slab, the installation of windows to the north eastern elevation of the subject dwelling, the concrete slab and concrete block side boundary fence constructed up to the south-western side boundary of the subject site has a detrimental impact on the privacy and amenity of the adjoining properties. 5.The building works involving the constructed retaining walls and concrete slab to the front of the subject property, the installation of windows to the north eastern elevation of the subject dwelling and the construction of a concrete slab, the construction of a void area under the concrete slab and the side boundary fence to the rear of the subject property being Lot D DP 367760 No 45 Carlton Crescent Kogarah Bay has been undertaken without having obtained prior development consent from Council. 6.The constructed retaining walls and concrete slab to the front of the subject property, the installation of windows to the north eastern elevation of the subject dwelling and the construction of a concrete slab, the construction of a void area under the concrete slab and the side boundary fence to the rear of the subject property being Lot D DP 367760 No 45 Carlton Crescent Kogarah Bay are not exempt development. 13The Order directed compliance within 60 days of the date of the Order. Evidence 14The hearing commenced on site with a view of the subject site and the two adjoining properties, No 43 and No 47 Carlton Crescent. The owners of those two properties gave evidence. The owner of No 43 was concerned with privacy impacts of the window on the ground floor which is in line with the windows of the main bedroom and her daughter's bedroom. The owners of No 47 raised concerns as to the bulk of the front entry patio and its proximity to the common boundary and their access stairs; privacy and overlooking from the elevated rear slab across their rear yard and swimming pool; and the bulk of the slab and proposed planter on that slab. 15Expert planning evidence was provided on behalf of the applicant by Mr Robert Chambers and on behalf of the Council by Mr Kerry Nash. Legislation 16The Council relied on orders 2 and 15 in the Table to s 121B of the Act, which identify circumstances in which the power to issue an Order arises to include: 2. To demolish or remove a building (a) Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required ... 15. To comply with a development consent The development consent is not being complied with 17The powers of the Court on appeal are provided in s 121ZK: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. Consideration 18The applicants submit that terms 1 to 6 of the Order should be set aside and substituted Orders made in the form recommended by the Council's Director Planning and Environmental Services in his report to Council on 22 July 2013, which followed discussions between the applicants and Council including an on site meeting involving Councillors, senior Council staff, the applicants' architect and neighbours. Those recommendations were (a) construction of a 1.2m wide planter box adjoining the front entry between the side boundary and the dwelling, with a 1.0m high masonry wall above the existing slab; (b) construction of a Hebel block wall between the existing slab on the south western boundary and existing ground level, to be rendered and painted to the satisfaction of the adjoining owner; (c) the sliding glazed panels to the highlight window to be siliconed and fixed permanently into place with tamper proof screws; (d) construction of a 900mm wide planter box along the full length of the elevated slab at the rear of the site along the south western side boundary, to be 1.0m high; and (e) rendering and painting the constructed concrete wall on the south western boundary with 47 Carlton Crescent. The officer's recommendations referred to plans provided by the applicants following the notice of intention to issue an order, being plans prepared by Tecton Group drawings CM01, CM.02 and CM.03 Revision G dated 3 April 2013. The applicants submit that an amended Order should include a requirement that the applicants carry out the works depicted in the plans, modified to incorporate term 6(i) of the Order. 19The Council submits that the issues relate to overlooking and privacy impacts, and visual bulk. In relation to the slab at the front entry, and the slab at the rear, the issues are privacy and visual bulk for the occupants of 47 Carlton Crescent, which would be exacerbated by the applicants' suggested planter box. In relation to the side window, the issue is privacy for the occupants of 43 Carlton Crescent, and the Order should be made consistent with the modified conditions of consent. Term 6 of the Order should be confirmed, with an amendment to require a reduction of the floor to ceiling clearance and in the opening to the undercroft area. Term 1 - Concrete entry patio slab 20The applicants contend that term 1 of the Order is inconsistent with what was originally approved in DA 25/2005, on the basis that the approved plans show the 1.2m garden bed setback from the south western boundary at the same level as the entry patio slab, such that the base of the garden bed (in the form of a planter box) would sit atop the slab as opposed to being at natural ground level. Further, that condition 28 to the 2012 Modification, which requires what is being ordered in term 1, places an unreasonable burden on the applicants as the slab has already been constructed in accordance with the approved plans; and that to comply with term 1 would be overly burdensome. The Council contends that the relevant plans clearly indicate that the front entry patio slab and retaining wall is setback 1200mm from the common boundary and the area in between the slab and boundary is labelled "garden bed"; and requiring the slab to be cut back is not unreasonable as the front entry patio has not been constructed in accordance with the approved plans resulting in adverse privacy impacts and visual dominance on the front of the residence at 47 Carlton Crescent. 21The applicants contend that the privacy concerns of the residents at 47 Carlton Crescent can be addressed by the construction of a privacy fence and the installation of planter boxes to create a 1.2m setback from the boundary as originally required under DA 25/2005. The Council opposes this, on the basis that it would increase the visual dominance of the structure when viewed from 47 Carlton Crescent without reducing privacy impacts. 22The applicants initially contended that compliance with term 1 would be potentially dangerous to the dwelling at 47 Carlton Crescent given its proximity to the entry patio slab. Mr Chambers did not agree, provided the removal of the section of the slab was carried out in accordance with structural engineers' and construction managers' specifications (2.5.1.9 of the joint report). 23Mr Chambers and Mr Nash addressed two issues in relation to term 1: whether the original approval of DA 25/2005 required a 1.2m setback with a garden bed at natural ground level on the boundary with 47 Carlton Crescent; and whether the applicants' proposal to install a planter box in that location would provide a satisfactory planning outcome. 24In relation to the first issue, their evidence focussed on the original approved plans for DA 25/2005; the Construction Certificate plans associated with DA 25/2005, approved on 19 May 2008; the plans for the 2010 Modification approved on 22 January 2010; and the plans for the 2012 Modification approved on 18 December 2012. Mr Chambers' evidence was that when condition 28 was imposed in the 2012 Modification in December 2012, the entry patio slab was already in situ, and there is much to suggest that the slab is consistent with the previously approved plans. Mr Chambers noted (at 2.5.1.8 of the joint report) that the references to "garden bed" and "planter" on the approved plans for DA 25/2005 and the Construction Certificate, and to the RL of 13.15m for that part of the garden bed adjacent to the entry portico and to the RL of 12.15m in the location of the "garden bed" in the plans approved in the modifications of 2010 and 2012, and the absence of details of the planter box other than on the plans approved in the 2012 Modification in December 2012, create uncertainties. Mr Nash was of the opinion that the original approved plans for DA 25/2005 show that the front entry patio was setback 1200mm from the common boundary with a "garden bed" notation between the patio and the boundary; a terrace at the top of the entry stairs at RL 13.145 which wraps around the entry portico at RL 13.515 setback 2100mm from the common boundary, with a "garden bed" shown 1200mm wide on the boundary with a retaining wall on the boundary. The front entry slab has been built to the common boundary with No 47 and no retaining wall has been built. The Construction Certificate plans also show the setback of the front entry patio of 1200mm with a "garden bed" located adjacent to the boundary, and a retaining wall shown on Drawing S4A provides detail of a retaining wall which does not appear to have been constructed. The modified consent plans approved on 22 January 2010 also indicate the front entry patio setback 1200mm from the common boundary with a masonry wall on the western edge of the patio and a "garden bed" between the masonry wall and the boundary. 25On the second issue, the applicants' proposal to install a planter box, Mr Chambers' evidence was that in the circumstances where Council officers had supported the applicants' proposal, and appropriate ameliorative measures had been proposed by the applicants, the Council's position is unreasonable. Mr Nash was of the opinion that erection of a planter box on top of the constructed slab would increase the visual dominance of the front entry patio structure when viewed from No 47. 26The view confirms that the slab at the front entry patio extends to the common boundary with No 47. The Council documents (exhibit 5, tabs 16-18) confirm that the slab was poured between 20-21 September 2011, based on notes from an inspection undertaken on 20 September 2011, which include that the owner was "advised not to pour concrete"; and a subsequent inspection at 1.30pm on 21 September 2011 following which it was noted that the concrete "had been poured to boundary". The Notice of Proposed Order issued on 28 September 2011 reflects the Council's opinion at that date that the construction of the slab to the western side boundary was not authorised by DA 25/2005, and confirms the notes of the officers who undertook the inspections on 20 and 21 September 2011. The Council's letter to the applicants dated 12 January 2012 indicated that the applicants were proposing to submit a draft plan with details of the proposed external finishes, planter boxes and landscaping to the front entry patio area, noting that lodgement of a draft plan "is no guarantee of preventing demolition action proceeding". The modification application approved on 18 December 2012 included condition 28, requiring the section of slab to be cut back "in order to reinstate the 1.2 metre setback that was previously approved in Development Consent 25/05", and installation of a garden bed at natural ground level "as previously approved between the side boundary and the front entry patio". 27The extension of the slab to the side boundary apparent on the view is contrary to condition 28 of the 2012 Modification. There was no appeal made against the imposition of that condition. Condition 28 refers to the previous approval in DA 25/2005. Mr Chambers acknowledged that there are difficulties in interpreting the plans for DA 25/2005 and the associated Construction Certificate and later plans provided for the 2010 Modification. The plans considered by the experts use the terms "garden bed" and "planter box", and include the note "Selected landscaping to all proposed planters" referring in some plans solely to a "garden bed", and in others to both "garden bed" and "planter box". The plans approved in DA 25/2005 (Attachment 2, 2A, exhibit B), and the Construction Certificate associated with DA 25/2005 (Attachment 5, 5A exhibit B), all show a "garden bed" 1200mm wide at the common boundary adjoining the front entry, and a wider "garden bed" immediately behind that, adjoining the entry foyer. Those plans separately provide for a "planter box" along the street frontage and at the side boundary at the lower area adjoining the street frontage, above the garage. The consistency of use of the terms "garden bed" and "planter box" across those plans is clearly intended to distinguish between the different modes of provision of landscaping. I accept Mr Nash's evidence that the difference would generally be that a "planter box" is a masonry structure which encloses garden space generally sitting on top of a slab while a "garden bed" is not an elevated structure and would generally be at the same level as an adjoining patio. In my view, the reference to "planters" in the Note provides a generic description of the areas in which planting is to take place, and would not be inconsistent with the distinction drawn on the plan between a "garden bed" and a "planter box". 28Both experts accepted that there are some inconsistencies in the levels shown in the various plans and sections. Having considered the plans in Attachments 2, 2A, 3, 4, 5, and 5A to exhibit B with the assistance of their evidence, I accept the evidence of Mr Nash that the centrally relevant plans are those approved in DA 25/2005 and its associated Construction Certificate and the 2010 Modification, and not the plans the subject of the 2012 Modification, which was made after the slab had been constructed. In the plans approved in DA 25/2005 (Attachment 2, exhibit B) and those approved in the 2010 Modification (Attachment 3 exhibit B), both the front entry patio and the adjoining garden bed are shown at the same level: RL 13.145 for DA 25/2005 (with RL 13.145 for the "top of wall" of the garden bed immediately below the entry patio) and RL 13.15 for the 2010 Modification. The western elevation for the DA 25/2005 plans shows a block wall at the entry patio at RL 13.145, the same level as the slab. That drawing, as noted by Mr Nash, has no indication of any structure above RL 13.15, and shows the planter box structure at the lowest level above the garage. There are no plans showing details of a slab extending to the boundary with No 47. 29Based on these plans, I am satisfied that at the time the slab was poured there was no development consent authorising its extension to the common boundary with No 47. While the report to the Council recommended approval of that part of the modification application lodged after the slab was poured that would retain the slab and install a planter, that was not the decision of the Council, and the 2012 Modification was approved subject to condition 28. The slab was constructed contrary to development consent 25/05 as modified, and condition 28 of the 2012 Modification which would require that it be cut back to reinstate the setback approved in development consent DA 25/2005 is not being complied with. The basis for the issue of term 1 of the Order is established. 30The applicants submit that term 1 should be replaced by the following: Construct a 1200mm wide planter box adjoining the front entry/portico between the side boundary and dwelling, for a total length of 7.0 metres as depicted on amended plans prepared by Tecton Group, drawings 01 and 02 Revision G dated 3 April 2013. The planter box is to have a 1.0 metre high masonry wall above the existing slab along the side boundary. 31With the benefit of the view, having regard to the fall of the land across the site and No 47, and the closeness of the front entry stairs for both No 47 and the subject site, I am of the view that the front entry structure on the subject site is already visually dominant. I agree with the Council, and accept the evidence of Mr Nash, that construction of a planter box on top of that part of the slab within the approved setback of 1.2m will increase that visual dominance. In considering whether that part of the Order requiring that the section of the slab be cut back and a garden bed installed should be confirmed, or varied as requested by the applicants, the issue is not whether compliance with the conditions of consent would be onerous or unreasonable. The experts agree that it would not be unsafe, and the quote obtained by the applicants (exhibit 7) does not suggest that it would be technically impossible. The 2012 Modification did not approve the approach proposed by the applicants. 32Having regard to the plans approved in DA 25/2005 and the 2010 Modification, and the adverse impact on privacy and amenity for No 47, I agree with Mr Nash that term 1 should be amended so as to require that the sections of the slab, both at the front entry portico and that adjacent to the entry foyer, be cut back to the approved setback, and garden beds installed, consistent with his recommendations at 2.5.2.12 of the Joint Report. Term 2 - Window on north eastern elevation 33The applicants contend that they have previously agreed, as evidenced in correspondence to the Council, to permanently fix and obscure this window. The Council's position is that condition 28a of the 2012 Modification should be complied with. 34Mr Chambers supported term 2 of the Order, on the basis that it would provide an outcome that is equally effective as condition 28a provided it is adhered to. Mr Nash was of the opinion that requiring replacement with a fixed panel would provide certainty, and ensure compliance with the 2012 Modification. 35The modifications to windows, and the associated privacy issues, were addressed in the assessment of the 2010 Modification, when the assessing officer noted (exhibit 5, tab 13) that the windows had been inaccurately depicted, and that the plans had been revised by the architect to delete the clear glazed window from the ground floor living area and to label the size of the windows accurately. The plans approved in the 2010 Modification provide for "obscured glazing" on the window shown on the north eastern wall of the Casual Living area of the dwelling. The report to the Council for consideration of the 2012 Modification includes the note (exhibit 5, tab 37, at 68) that in relation to concerns raised by the owner of No 43 that the proposed window modifications would look into their bedroom windows, the applicant had agreed to amend that application to amend the living room window to be a fixed obscure glazed window. The assessing officer commented that with that modification the application was considered acceptable. Condition 28a as imposed by the Council required that the sliding glazed panels be removed and replaced "with one fixed glazed translucent (obscured) panel that is permanently fixed in position and cannot be opened". That condition has not been complied with. 36Term 2 reflects an offer made by the applicants following the site inspection on 13 February 2013 to apply further screws to overcome the risk of the window being opened and allowing overlooking up and into the neighbouring property (exhibit A). The view included No 43, and confirmed the potential for overlooking into the bedroom windows of that property. Having regard to the significant privacy impacts, I agree with the Council that replacement of the existing window with one fixed glazed translucent (obscured) panel that is permanently fixed in position and cannot be opened, would provide certainty as to compliance into the future regardless of ownership. There was no appeal against the imposition of condition 28a imposed in the 2012 Modification. Term 2 of the Order should be varied to ensure compliance with the modified development consent, and require replacement of the window in terms the same as those in condition 28a. Terms 3 and 4 - Rear slab 37The applicants contend that the relevant development consent for this part of the site is DA 51/2010, which was a new development application lodged at the request of the Council in respect of the structures at the rear of the site, and so the relevant plans are those approved in DA 51/2010. The approved Construction Certificate plans for DA 51/2010, specifically drawing No.LS202 revision C dated 13 July 2010 drawn by Tecton Group (stamped 20 August 2010) show the slab at the rear of the site extending to the western boundary at RL 20.0m. Condition 6 of DA 51/2010 which prohibits the raising of land levels above the existing rock shelf within 0.900mm of the boundary with No 47 has not been breached because to raise the land level would require earth to be filled into this space. 38The applicants contend that the privacy concerns of 47 Carlton Crescent can be addressed by the construction of a 1m high planter box extending inwards 1m from the western edge of the slab, and that this is a reasonable alternative to compliance with the terms of the Order that are primarily concerned with the privacy of the residents of 47 Carlton Crescent. The applicants submit that the Order should require a planter along the side boundary, as recommended by the Council officer for the Council meeting of 22 July 2013 (exhibit D), however without requiring a return along the southern side of the slab. 39The Council opposed the installation of a planter, contending that this would increase the visual bulk of the structure when viewed from the rear yard of 47 Carlton Crescent without adequately addressing privacy impacts. The Council contended that the slab is not in accordance with the approved plans, resulting in adverse privacy impacts and visual dominance on the rear yard of No 47. The Council's contentions (exhibit 2) relied on the approved plans for the Construction Certificate for DA 51/2010 (Construction Certificate No 161-10 Drawing No LS02/Issue C) indicating slab and support structures setback 930mm from the common boundary. 40The Council's position as put in submissions is that the slab as presently constructed is not consistent with the Construction Certificate plans; it accepts that condition 6 of the development consent could be complied with if there were no overhang of the slab at the rear; however, it also accepts that the plans approved for DA 51/2010 show the slab extending to the boundary. The Council submits that in any event, the present situation is impacting on No 47. There will need to be a balustrade, which could be 1.5m opaque glass to prevent overlooking. If set in by 900mm that would reduce bulk and overlooking. 41In their joint report Mr Chambers and Mr Nash agreed (at 3.3) that having regard to the approved plans for DA 51/2010 (Attachment 6), the slab at RL 20.00m AHD extends to the western side boundary and that the setback of 930mm referred to in the Council's contention relates to the canopy and not the slab. On the Construction Certificate plans approved on 20 August 2010 (Attachment 7), drawing S2 of S7 indicates a retaining wall on the boundary with No 47 with a notation "RW2"; drawing S4 of S7 provides a section for "RW2" which indicates a retaining wall on the boundary supporting a slab at RL 20.00mm; drawing S5 of S7 provides details of the suspended slab thickness at 200mm; drawing LS01/C indicates the slab at RL 20.00 extends to the boundary with No 47; and drawing LS05/C indicates the retaining wall and slab at RL 20.00 is located on the boundary with No 47. They further agreed that the "as built" structure at the rear of the site has not been built in accordance with the approved Construction Certificate plans in Attachment 7, in that the retaining wall supporting the slab at RL 20.00 is setback 900mm from the boundary with the slab cantilevered 900mm to the boundary, and the suspended slab thickness is 300mm. 42The Notice of Determination of DA 51/2010 describes the development as "Alterations and additions to existing dwelling including underground passageway, swimming pool, outbuilding and landscaping". Condition 1 of DA 51/2010 provides: The development must be implemented in accordance with the approved plans, specifications and details listed below and any supporting information submitted with the Development Application except as amended by any conditions attached to the Development Consent: (i) Architectural Plans by Tectron Group LS1- LS6 Rev. B dated 11/2/10. 43The approved plans are provided in the experts' joint report (Attachment 6). The Proposed Landscape Plan LS6 shows the swimming pool on the north eastern side of the property, and on the level above at RL 20.00, a pergola, sauna and shower with an area hatched as "grass area" extending across the block and in a strip 930mm wide along the boundary with No 47. Section BB (drawing LS5) shows what is proposed on each of the three levels stepped above from the rear of the dwelling. That drawing appears to show at RL 20.00 a fence or wall on the common boundary, then a gap before the outbuilding structure. There are no notations or any other indication as to what is intended underneath the 930mm wide strip of "grassed area" along the common boundary on drawing LS6, or between the outbuilding and the boundary wall on drawing LS 5. 44The Construction Certificate drawings (attachment 7 to the Joint Report) show a retaining wall (RW2) along the common boundary with No 47. Sections of the various retaining walls required are shown on drawings S3 - S6. Drawing S4 shows RW2 as a retaining wall on the boundary, with fill material to RL 17.755 and extending to a height of RL 20.00 with a slab. In their joint report (at 3.3.4(iv) and (v)), Mr Nash and Mr Chambers also refer to drawings LS01/C and LS05/C which they agreed indicate the retaining wall and the slab at RL 20.00 located on the boundary: those drawings are not included in the Joint Report. 45I accept the agreed evidence of the experts that the Construction Certificate plans show a retaining wall and slab to the boundary with No 47, and that the as built structure has not been built in accordance with the Construction Certificate plans, in that the retaining wall supporting the slab at RL 20.00 is setback 900mm with the slab cantilevered 900mm to the boundary, and the suspended slab thickness is 300mm. Whether or not the structure has been constructed in accordance with the Construction Certificate plans, and whether or not the construction approved in the Construction Certificate plans was "not inconsistent with the development consent" as required by cl 145 of the Environmental Planning and Assessment Regulation 2000, do not appear to be matters requiring, or capable of, resolution in these proceedings. The issue is whether the construction of the slab extending to the boundary was authorised by the development consent DA 51/2010. 46The plans approved in DA 51/2010 are ambiguous. Section BB in drawing LS5 would appear to suggest, while providing no detail, that the structures proposed for the uppermost level on the property were to be on a slab that extended to the boundary, with a wall or fence on that boundary. However, by operation of condition 1 of DA 51/2010, condition 6 would amend the plans, and could have been complied with had the whole of the slab been setback 900mm from the boundary. Given the ambiguity and absence of detail in the plans, and the terms of condition 6, despite the agreed evidence of the experts, I am not persuaded that the construction of the slab overhang to the boundary was authorised by DA 51/2010. 47As noted above and considered in more detail below, there is potentially an issue as to the validity of DA 51/2010. The overhang of the slab was not authorised by DA 51/2010, or, on the evidence before me, any other development consent. The Council relied upon both Order 2 and Order 15 under s 121B in issuing the Order. Whether the slab was constructed in its as built form and location in contravention of DA 51/2010, or without a prior development consent, it was open to the Council to include in the Order term 3 which requires that the overhang of the slab be cut back 900mm. 48In considering whether that term of the Order should be confirmed or varied in the exercise of the powers conferred by s 121ZK, the central issue is the impact on the amenity of the occupants of No 47. The assessment report for DA 51/2010 (exhibit 5 tab 50) confirms that privacy was an issue during consideration of that application, and the basis for the imposition of condition 6, noting that: The landscaping of the rear year has the potential to impact on the privacy of the neighbour to the west as that property sits at a lower level than the subject site. A condition of consent will be imposed to ensure land levels are not raised at the boundary and a maximum 1.8 metre fence is placed on the common boundary. 49The Council meeting on 10 December 2012 (exhibit 5, tab 37) considered both the s 96 application to modify DA 25/2005 and DA 51/2010, and the representations made in response to the Order served in relation to the side boundary concrete block wall and slab within the rear yard. The Report provided for that meeting noted (at (40) and (41)) that the nil side boundary setback of the concrete slab overhang "has a detrimental impact on the amenity and privacy of the adjoining property", and that to overcome that impact it was proposed to proceed with demolition action requiring the owner to cut back the concrete slab overhang. At (42) it was noted that Council officers had met with concrete cutting specialists on site, and that those specialists had provided quotes and "confirmed that the cutting of the concrete slab overhang can be completed while still providing safety to the adjoining properties". The Minutes confirm that the Council determined to proceed with the order, notifying the applicants by letter dated 19 December 2012. 50The plans approved in the 2012 Modification, as specified in condition 2 (Architectural Plans No 01, 03, and 04 Rev D dated 6 June 2012 and drawing No 02, 05 and 06 Rev E dated 15 August 2012) are not in evidence. An extract from one plan is provided in Attachment 10 in the planners' Joint Report, which shows "artificial grass over concrete" for 900mm along the side boundary, with a handwritten note stating "Note: refer to notice of proposed order served 19/12/12 regarding concrete slab". Mr Nash's evidence (at 3.5.2.1 of the Joint Report) was that the 2012 Modification required the slab at RL 20.00 to be cutback from the boundary with No 47. That is not in terms expressed in the conditions (exhibit 5 tab 38), however in the context of the consideration of both the modification application and the proposed order at the same Council meeting, and the note on Attachment 10, it is in my view unlikely that the 2012 Modification would have provided any retrospective authorisation of the slab. 51The view confirmed that because of the difference in height and the proximity of that part of the slab to the boundary, there is a significant impact on privacy for the rear year of No 47. 52The applicants propose the installation of a planter box along the side boundary. Mr Nash was of the opinion that a preferred solution would be construct a planter box 900mm wide along the boundary with a depth of 1000mm with a selection of suitable native plants to grow to 700-1000mm at maturity. The height of the planter and setback would reduce the proximity and extent of overlooking possible by persons sitting and standing on the rear patio. In his opinion, the alternative solution of cutting back the slab would not address overlooking by persons standing or sitting on the rear patio. In oral evidence Mr Nash agreed that installation of a balustrade to a height of 1500mm would address overlooking by most people standing on the rear patio. Mr Chambers was of the opinion that a balustrade would be less effective than the proposed planter box, and a planter box with vegetation would provide a more attractive solution. 53The view confirms that there is no balustrade erected as required to comply with the Building Code of Australia (as required by standard condition 4 of DA 51/2010). I am of the view that in order to address the significant privacy and amenity impacts for No 47, while minimising any increase in visual bulk that the planter box as suggested by the applicants would provide, in the context where there is a degree of ambiguity as to what DA 51/2010 authorised, the preferable approach to requiring the overhang of the slab to be cut back is to require the installation of a balustrade 1500mm high of opaque glass, set back at least 1000mm from the side boundary, with the remaining overhang to be treated so as to be non-trafficable. Term 3 of the Order should be amended to reflect that requirement. Term 4 should be amended to require the continuation of the balustrade for the 3 metre return inwards from the side boundary. Term 5 - Finishing of concrete block wall 54The applicants agree to carry out this work subject to access being granted by the owners of 47 Carlton Crescent. In their Supplementary Joint Report (exhibit 8) Mr Chambers and Mr Nash noted that the owner of No 47 has nominated a paint colour, and that it is agreed the walls to be rendered and painted include the retaining wall beneath the projecting slab which is setback 900mm from the common side boundary. 55The plans for development consent DA 51/2010 do not include the constructed retaining wall on the side boundary with No 47, and for the reasons expressed above in relation to the slab overhang, I am satisfied that there was power to include in the Order measures to address the impacts of this unauthorised structure on the amenity of the occupants of No 47. I accept the agreed approach of rendering and painting adopted by the experts, and term 5 of the Order should be amended to reflect that agreement. Term 6 - Rear structure 56On the second day of the hearing, before the tender of the supplementary joint report of the experts relating to terms 5 and 6 of the Order (exhibit 8), and before they continued their oral evidence, the Council's representative advised that the Council files did not appear to include a BASIX certificate for DA 51/2010, and that the earlier BASIX certificate provided for the CDC for the approval of the swimming pool in 2008 would appear to have expired. After some discussion the parties' representatives agreed that it would be appropriate to proceed on the basis that whether or not development consent DA 51/2010 is arguably invalid, the construction of the slab and undercroft area in the rear of the site was undertaken either without, or not in compliance with, any development consent. The parties decided not to request further time to undertake closer examination of their respective files. The approved plans for DA 51/2010 (drawing LS 6, section BB on drawing LS 5) do not show any opening into the wall or undercroft area such as has been constructed and was observed on the view. The validity of DA 51/2010 is clearly a matter which could not be determined in the present proceedings, however whether or not that consent is invalid, I agree that the construction of the slab and undercroft area was undertaken either without, or not in compliance with, any development consent. I am satisfied that on either basis there would be power to make the Order in terms of Order 2 or 15 under s 121B of the Act. 57The applicants do not take issue with (i) or (ii) of term 6; in relation to (iii), they contended that this is unreasonable if the core reason is to satisfy the Council that the water tank storage area will not be used for habitable purposes. In closing submissions the applicants submit that term 6 should be revoked, and in substitution the applicants should be ordered to carry out the works depicted in the plan prepared by Tecton Group drawing CM.03 Rev G dated 4 April 2013 marked "Proposed plan of Rear Undercroft", modified to include the requirement in term 6(i) to reduce the opening to 1200mm by 2500mm. That drawing shows the undercroft area having an approximate area of 50.65 sqm, with 2 x 2400 litre water tanks, an area marked "outdoor furniture storage location" and an area marked "garden tools storage location". The Council submits that term 6(i) should be varied to reduce the maximum height to 2000mm, and to require the floor level to be raised so as to provide a maximum 2m clearance, and this term should otherwise be confirmed. 58The experts agreed that as measured on the view, the maximum height possible of the opening into the area under the elevated slab is 2170mm as built, and the floor-to-ceiling height of the space under the elevated slab is 2350mm. There was no dispute as to term 6(i) and (ii). In relation to term 6(iii), the experts disagreed as to whether four (10,000 litres) or two (5,000 litres) water storage tanks are required, and whether the remaining area should be available for storage of other items. 59Considering first the number and volume of water storage tanks required, it was common ground that the swimming pool was approved by a CDC on 19 June 2008, and the BASIX certificate forming part of the CDC for the swimming pool and spa required 4703 litres of rainwater tank storage. The location of the swimming pool was changed and approved in development consent DA 51/2010 on 11 May 2010. The 2012 Modification included condition 6 which required that two x 1200 litre rainwater tanks (or equivalent) be installed. 60Mr Chambers (exhibit 8, 4.3.2) referred to the stormwater drainage plans for the site showing three tanks: one under the elevated slab (1160 litres), one under the external stairs on the eastern side of the dwelling (360 litres) and one under the stairs near the front boundary (1160 litres), total capacity 2,950 litres; and given the requirement for 4703 litres under the BASIX certificate for the CDC, that leaves an additional requirement for a 1750 litre water tank. The volume of water storage on the site as a whole with the 2 x 2400 litre water storage tanks shown on the Tecton Group plan drawing CM.03 dated 3 April 2013 would exceed the required capacity. Mr Nash's oral evidence was that the swimming pool was similar in size to that approved under the Complying Development Certificate, requiring in the order of 4,700 litres. At 4.3.5 of the Joint Report, Mr Nash noted that using the undercroft area for storage with a capacity of 10,000 litres as required in term 6(iii) would be adequate to satisfy the requirements for the swimming pool and spa and provide additional storage capacity for grey water usage and watering of the landscaping areas. In oral evidence Mr Nash stated that the provision of an additional 5,000 litres of water storage above that required for the swimming pool would be desirable, and in his opinion, having four tanks would occupy only one quarter of the space available in the undercroft area. Given the uncertainty as to the BASIX requirements for the swimming pool, and the desirability of having additional water storage in the available space, I agree with Mr Nash that the number and volume of storage tanks specified in Term 6(iii) should be confirmed. 61The issue is whether any additional use of the remaining space would appropriate. The potential use of the undercroft area as habitable space was clearly of concern to the Council at the meeting of 10 December 2012 when the s96 modification DA 25/2005/5 was considered. The Minutes record a proposed condition 29 that "The proposed water tank storage room located underneath the elevated concrete slab within the rear of the subject site shall only be used for the storage of water tanks and shall not be used for habitable purposes or a separate dwelling". That condition was not included in the Notice of Determination of the 2012 Modification (exhibit 5 tab 38); the Notice of Proposed Order dated 19 December 2012 (exhibit 5 tab 39) includes term 7, that "The void area under the concrete slab in the rear yard is to be filled with blue metal to a height of 1.5 metres and capped with a 100 millimetre concrete slab, except for the area taken up by the water tanks". 62In oral evidence Mr Nash expressed the opinion that the area remaining available after the proposed water tanks are installed is substantial. Mr Chambers was of the opinion that if the opening was reduced, the floor to ceiling height was reduced, and there were no windows, the area would be less usable; the chief deterrent for use as a habitable space would be the absence of windows and a door. 63The applicants stated in a letter from their legal representative to the Council dated 31 January 2013 that they "intend to use the void as a store room and will be installing a water tank system"... and that "at no time will the void be used as a habitable area". In the interests of certainty, I am satisfied that it would be appropriate to vary term 6(i) to reduce the opening to a maximum height of 2 metres; to require a reduction in the floor to ceiling height to 2000mm as recommended by Mr Nash; to retain Term 6(ii); and to vary Term 6(iii) to require the space to be used for rainwater storage of 10,000 litres, to be located as recommended by Mr Nash towards the southern area of the space proximate to the door. That would permit some minimal storage of garden tools in the remaining space while ensuring that the undercroft area could not readily be used as a habitable area. Conclusion 64For the reasons above, I am satisfied that the circumstances exist for the issuing of an Order under s 121B of the Act, and that the privacy and amenity impacts of the works as built are such that it is appropriate that an Order be made. Each of the terms of the Order requires modification in light of the findings and conclusions above. I will make directions in consultation with the parties for the re-drafting of the terms of the Order, including specification of the work required and the time for it to be undertaken. On receipt of the revised terms of the Order, I will make final orders in chambers disposing of the appeal. Linda Pearson 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. Decision last updated: 14 January 2014