Land and Environment Court New South Wales Medium Neutral Citation: Bandong & Anor v Penrith City Council [2014] NSWLEC 1226 Hearing dates: 27 October 2014 Decision date: 04 November 2014 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed. 2. The exhibits, except Exhibits 1,4 and B, are returned. Catchwords: DEVELOPMENT APPLICATION - Construction of deck - Condition requiring modification - Privacy impacts - Easement Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 1998 Urban Land Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141 Meriton Property Services Pty Ltd v Minister for Planning and Infrastructure [2013] NSWLEC 1260 Meriton v Sydney City Council [2004] NSWLEC 313 Super Studio v Waverley Council [2004] NSWLEC 91 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 Category: Principal judgment Parties: Jose Bandong (First Applicant) Carolyne-Jane Bandong (Second Applicant) Penrith City Council (Respondent) Representation: Mr S Nash (Respondent) Mr J Bandong (in person) Mr M Bullivant, Penrith City Council (Respondent) File Number(s): 10612 of 2014 Judgment 1Mr and Mrs Bandong have appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against a condition imposed on a development consent granted on 20 February 2014 by the respondent Council to development application DA13/1170 for the construction/repair of a deck at the rear of their house at 25 Fireball Avenue Cranebrook (the site). 2The site is located in an area of low density residential development with a mixture of single and two storey dwellings. The house is single storey, setback 4m from the rear boundary. The site has a significant fall to the rear boundary. There is an easement to drain water 2m wide along the rear boundary of the site, which extends across the two lots to the east and the three lots to the west of the site. 3In a statement provided with their appeal (exhibit B) Mr and Mrs Bandong state that in September 2011 the north retaining wall inside their property collapsed, crushing sewer pipes and stormwater pipes and exposing piers and footings of the dwelling. They carried out repair and reconstruction work. In September 2013 the Council wrote to them stating that a development application was required for the repair/construction of the timber deck. After discussing the matter with a Council officer, which included discussion of the option of reducing the timber deck to 25sqm so as to be exempt development, they lodged a development application seeking to have the deck approved. 4The development application DA13/1170 included plans showing the deck as 11.30m wide and 3.05m deep; specifications including details of the retaining wall, footings, joists, deck boards, and balusters; letters from the owners of three properties to the west consenting to construction of the deck encroaching into the easement boundary by approximately 700mm; and a Statement of Environmental Effects (SEE). The SEE states that the purpose of the deck is to utilise a relatively small yard and make it a safe area for children, and notes that there is an established Lilly Pilly hedge spanning approximately 98% of the total width of the back of the house approximately 3m high to provide privacy. 5The Council granted development consent subject to conditions. In this appeal Mr and Mrs Bandong are seeking the deletion of condition 3: 3. The portion of the deck within 2.0 metres from the rear boundary is to be demolished as marked in red on the stamped approved plans. 6Mr and Mrs Bandong contend that the structure is necessary for the purpose of general safety and maintenance of vegetation, for a family using a minimum size yard of uneven landscape; the owners and co-owners of the easement have provided "easement consent letters"; and the structure is readily demountable, and in a controlled state does not substantially interfere with the full use of the easement. 7The Council contends that the development is not compatible with the existing residential character of the area, as decks within 4m of the rear boundary are not predominant in the surrounding area; the development is not compatible with the existing amenity of the area, as it may cause significant impact on visual privacy of the adjoining properties; and the development is not compatible with the existing setbacks of the area. In addition to the merit contentions, the Council raised a jurisdictional issue, discussed below. Planning Controls 8The site is in the 2(b) Residential zone under the Penrith Local Environmental Plan 1998 Urban Land (the LEP), and as a "building or structure ordinarily associated with a dwelling house" the deck is permissible with consent. Relevant aims of the LEP include in cl 7, (e) residential character, and (f), residential amenity, which includes: (ii) to provide for high levels of residential amenity, particularly acoustic and visual privacy, accessibility to services, climatic comfort of the indoor environment, and safety and security, and 9Clause 9(2) of the LEP provides: (2) Except as otherwise provided by this plan, the council must not grant consent to development of land to which this plan applies unless the council: (a) is satisfied that the carrying out of such development is consistent with: (i) the aims of this plan, and (ii) the objectives of the zone within which the development is to be carried out, and (iii) the objectives of the development controls contained within this plan, and (b) has considered the objectives of any development control plans applying to the land. 10Clause 12 of the LEP provides for building envelopes, heights, landscaped areas and rear boundary setbacks, and relevantly provides: (1) The objective of this clause is to prescribe building envelopes, external wall heights, landscaped areas and rear boundary setbacks which: (a) achieve site-responsive development at a scale which is compatible with existing housing in the locality by controlling visual impacts relating to height and bulk, and (b) minimise the impact of loss of privacy, overshadowing and loss of views, and (c) achieve an appropriate separation between buildings and site boundaries and preserve private open space corridors along rear fence lines, and (d) protect and enhance the environmental features, which are characteristic of each of the residential zones, by requiring sufficient space on-site for effective landscaping and on-site stormwater detention. (2) For the purposes of this clause: ... landscaped area, of a site, means that part of the site not occupied by a building and which is predominantly landscaped with gardens, lawns, shrubs and trees and is available for the use and enjoyment of the occupants of the site. It does not include areas used for driveways, parking areas, garbage storage areas or any area less than 2 metres wide, except a verge at least 1 metre wide that is located next to a driveway and landscaped with trees and shrubs, but may include a verandah associated with a landscaped area. ... (3) The council must not grant consent to development that involves the erection of a building in Zone No 2 (a1), 2 (a), 2 (b), 2 (c), 2 (d) or 2 (e) unless the building is wholly within the building envelope, and does not contravene the maximum external wall height or minimum landscaped area, for the zone calculated in accordance with Table 4 below: Table 4 Zone No Minimum landscaped area ... 2(b) 50% ... (4) The council must not grant consent to development that involves the erection of a building unless: (a) that building is set back at least 6 metres from the rear boundary of the site or, in the case of a single storey building in Zone No 2 (a), 2 (b), 2 (c), 2 (d) or 2 (e), at least 4 metres from the rear boundary of the site, and (b) the land within the rear boundary setback is used for the purposes of landscaped area only. ... (6) Despite any other provisions of this clause, the council may consent to a building which is not wholly within the relevant building envelope or contravenes the maximum wall height control if, in the opinion of the council, the application demonstrates that a variation to those controls is necessary to improve the design, external appearance or utility of the proposed building. (7) Despite any other provision of this clause, the council may consent to the erection of a non-habitable building or structure ordinarily associated with a dwelling-house that does not comply with the requirements of this clause if, in the council's opinion, the proposed building or structure will have a minimal adverse impact on the subject site and any adjoining site. 11Clause 14 of the LEP provides design principles for development generally. 12The Penrith Development Control Plan 2006 (the DCP) applies to the site. Part 4 Section 4.2 Residential - Single Dwellings includes cl 5.3 Front, Side and Rear Setbacks, which includes at C.1 (a) a minimum 4m rear setback for a single storey dwelling, and at C.2 (a) that there are to be no building encroachments either above or below ground within the rear boundary setback. Part 4 section 4.8 Residential Construction Works includes cl 5 Building Over Easements and Rights-of-Way: The building of structures within or over easements or rights-of-way is not permitted, as the control of these easements/rights-of-way, in most instances, does not rest with Council. ... Structures adjacent to easements The construction of all structures adjacent to an easement is to ensure that loads imposed by the structure do not affect the stability or functioning of that easement. In many cases, the footing systems of such structures are designed to not affect the easement (e.g. being placed in a manner below the invert level of some drainage lines). Evidence 13The appeal commenced as a conciliation conference on site in accordance with the procedure specified in s 34AA of the Land and Environment Court Act 1979. Agreement was not reached and the conciliation was terminated and the matter proceeded to a hearing. The parties consented to evidence from the site view forming part of the evidence in the proceedings. 14The evidence included photographs taken by Mr and Mrs Bandong of the deck from inside the house, and underneath the deck including the retaining walls, and three photographs taken on the adjoining property at the rear by their neighbour (exhibit A). Consideration 15The deck is 11.30m wide and 3.05m deep, and extends to a distance of 0.96m from the rear boundary, and is approximately 0.93m from ground level. Compliance with condition 3 would require the deck to be cut back by approximately 1.05m. It was not in dispute that the deck was constructed in its present form before the development application was lodged. Based on the view and the photographs in exhibit A, between the outside edge of the deck and the rear boundary is a lily pilly hedge which extends above the deck. Based on the view, that hedge prevents overlooking from the deck to the adjoining and neighbouring properties at the rear, which are lower than the subject site. There are three timber stairs off the deck at its western side, and further informal stone steps to ground level at the rear of the property. The deck is supported by a retaining wall approximately 1.50m from the house, and there are five posts and footings at the outside edge of the deck. The deck supports a retractable clothes line. 16The development application was referred to the Council's Major Developments-Engineer unit (exhibit 1, p 22). Concern was expressed that the location of the proposed footings would conflict with the location of the stormwater line within the easement. The assessment noted the applicant had not located the stormwater line to assess this impact however this could be conditioned at construction certificate stage which may involve relocation of the pipe and design of the footings below the zone of influence; that there are four upstream properties benefitted by the easement and that consent had not been obtained from the furthermost property for the proposed works in the easement; and that the proposed structure would make access, maintenance and replacement of the stormwater pipe in the easement much more difficult. 17While the wording indicates that the response of the Major Developments - Engineer unit to the internal referral of the application was on the basis that the structure was proposed, the planning assessment of the development application under s 79C of the Act was made on the basis that the proposed development involved the use of an existing deck (exhibit 1, p 13). That assessment recommended that the deck be removed off the easement and setback 2m from the rear boundary, removing the structure off the stormwater easement. The assessment concluded that the development would have an acceptable impact in terms of sunlight access and visual and acoustic privacy, and that the reduction in size would limit extended periods of time being spent on the deck. The report noted that the site slopes significantly towards the rear boundary establishing the need for a deck and landing directly outside the dwelling. 18The statement provided by Mr and Mrs Bandong in support of the appeal (exhibit B) includes the statement that the deck provides a safe work area to maintain the 3m high hedge, and that Mr Bandong now suffers from a back condition that is detrimental when over-reaching and maintaining the area. Mr Bandong's position is that if the deck is altered in compliance with condition 3, the height of the hedge will have to be reduced to enable him to maintain it from the ground level as the slope is too great to use a ladder. 19I accept the evidence of Mr and Mrs Bandong that the deck in its present size provides an outdoor space at the rear of their dwelling which can be used by their family, in contrast to the steeply sloping rear yard. Based on the view, the deck supplements an area of private open space covered by a pergola on the western side of the dwelling. I accept the evidence of Mr Bandong that the location of the deck, extending to 0.96m from the rear boundary, assists in maintenance of the 3m high hedge which provides privacy both in terms of its height above the level of the deck and its depth occupying the remaining space between the edge of the deck and the rear boundary. 20The Council submits that there is a jurisdictional issue, being whether there was power for it to have granted the consent to the construction of the deck when it had already been built before the development application was lodged. This issue was not raised in the Council's Statement of Facts and Contentions (exhibit 1, p 69), however Mr Nash for the Council properly raised it at the commencement of the conciliation and elaborated on it in submissions during the hearing. 21The Council submits that neither the Council, nor the Court, has power to grant a development consent that has the effect of retrospectively authorising building works that have already been constructed, and that the only available course would be a s 96 application to modify the development consent by deleting condition 3, or an application for a building certificate. The Council relies on the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, which is authority for the proposition that while s 76A of the Act provides that development shall not be carried out where consent is required unless the consent has been obtained and is in force and the development is carried out in accordance with the consent, an application can be made under s 96 of the Act to modify a development consent retrospectively for development that has already been carried out. 22The development application DA13/1170 identified the development for which consent was sought as "construction/repair of timber deck". The accompanying material, including the SEE, is framed in terms of prospective works. It is clear, however, from the letter sent by the Council to Mr and Mrs Bandong on 20 September 2013 (exhibit 4), and the statement provided by them (exhibit B), that the Council was aware that the deck had been constructed without prior consent before the development application was lodged. The s 79C assessment report (exhibit 1, p 13) indicates that the application was treated as being an application to authorise the use of the deck, describing the proposal as "use of an existing deck". That assessment did not directly address the issue of the structural adequacy of the already constructed deck. That would be the primary consideration in an application under s 149B of the Act for a building certificate, which could potentially be granted to authorise the building work retrospectively. 23Under s 83(2) of the Act, on lodgement of the appeal under s 97(1) of the Act the development consent granted by the Council has ceased to be effective. The consent would only become operative from the date of determination of the appeal, unless the determination is to refuse development consent. I accept the Council's submission that there is no jurisdiction to confirm a development consent granted for unauthorised work that has already been carried out. In those circumstances, I agree with the Council that the proper course is to dismiss the appeal. 24Notwithstanding that conclusion, since both parties addressed the merits issues, it is appropriate to make some comments on those issues. 25The Council's position is that use of the deck in its present configuration would have adverse impacts on the privacy of adjoining neighbours. In the context of the difference in levels between the subject site and the deck, and the adjoining properties, the hedge provides the only safeguard for privacy of adjoining properties. Further, the use of the space provided by the deck would be relevant to the likely extent of overlooking, and part of the purpose of condition 3 is to reduce the useability of the deck to exclude use of tables and chairs on a regular basis. A further factor is that there is insufficient information as to the location of the piers and potential impact on the stormwater line located in the easement. The Council submits that the personal position of the applicants cannot be relied upon. 26Mr Bandong relies on information from the Law Society that there is no legal right to privacy, and that one way to block overlooking is to plant shrubs or trees. Mr Bandong expressed concern as to the advice he received from the Council, and stated that it was not clear what needed to be done to comply. His goal was to have a larger deck than one that would be exempt development, and he made that clear at the time. 27In Super Studio v Waverley Council [2004] NSWLEC 91 at [5]-[7] Roseth SC stated three planning principles relevant to consideration of privacy impacts of proposed development. Those principles were first, that acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of, and necessity for, the development that causes it. Secondly, where proposed landscaping is the main safeguard against overlooking, it should be given minor weight: the effectiveness of landscaping as a privacy screen depends on continuous maintenance, good climatic conditions and good luck. The third principle is the extent to which an approval for this application would be used as a precedent in favour of approving other applications. 28In Meriton Property Services Pty Ltd v Minister for Planning and Infrastructure [2013] NSWLEC 1260 at [46] it was observed that following a review by the Commissioners of the Court of the planning principles developed by the Court, the conclusion has been reached that the first point in Super Studio should no longer be observed, and that the appropriate approach is that adopted in Davies v Penrith City Council [2013] NSWLEC 1141, to remove the reference to "necessity" and consider only how reasonable is the proposal causing the impact. At [47] it was noted that the review had concluded that the second element in Super Studio should remain at least for the time being, although it may be appropriate for it to be revisited and perhaps expanded. In my view the second principle in Super Studio would be of assistance in determining the planning issues in this appeal, where the sole safeguard for privacy is the hedge; it is not appropriate in the circumstances of this appeal to engage in the further consideration of Super Studio envisaged in Meriton. The third point is not relevant. 29I would not regard the submission made by Mr and Mrs Bandong that the deck is needed to provide comfort to their family and children as raising matters purely personal to their enjoyment of their property. Given the limited space between the rear of the dwelling and the boundary and the steepness of the slope, the availability of a deck accessible directly from the dwelling would be reasonable for any occupant of the dwelling. However, I agree with the Council that its depth, at 3.05m, would facilitate a range of activities which would potentially have an adverse impact on the amenity of adjoining owners, and that a reduction in depth of the deck to bring it further away from the rear boundary would assist in minimising potential privacy impacts. I agree with the Council that it would not be appropriate to rely solely on the hedge to provide the safeguard against overlooking. While the deck would still be within the 4m setback required by cl 12(4) of the LEP, a reduction of its size and consequent minimising of adverse impact on adjoining sites would be consistent with cl 12(7) of the LEP, and would assist in achieving the objective in cl 7(f)(ii) of the LEP, as required by cl 9(2)(a)(i) of the LEP. 30The Council accepts that the site does not presently comply with the 50% landscaping requirement in cl 12(3) of the LEP, and achieves approximately 30%. I accept that if the deck were reduced to be no closer than 2m from the rear boundary, the hedge and the additional space would then constitute "landscaped area" for the purposes of cl 12, increasing that by approximately 5%. While that would not achieve compliance with cl 12(3), it would be an increase. That increase would have to be balanced against the uncontested evidence of Mr Bandong that the height of the hedge would have to be reduced in order for him to continue to maintain it from ground level. There is, however, no indication in the evidence before me that the hedge would not be retained. 31I accept the Council's submission that there is at present insufficient information on which the Court could be satisfied that the construction of the supports for the deck within the 2m wide drainage easement has not imposed a load that could affect the stormwater line that services the subject site and the adjoining properties. That is a matter that is included in Part 4 section 4.8 of the DCP, and must be considered by the consent authority in accordance with s 79C(1)(a)(iii) of the Act and cl 9(2)(b) of the LEP. That information, and information as to access, maintenance and replacement of the stormwater pipe in the easement, would ordinarily be provided in an application for a building certificate under s 149B of the Act. In the letter from the Council to Mr and Mrs Bandong dated 20 September 2013 following a site inspection regarding the deck (exhibit 4), the Council's Compliance Technical Officer stated that the Council required either the demolition of the structure or the submission of a Development Application and a Building Certificate Application to formalise the building work. However, it is not clear from the statement provided by Mr and Mrs Bandong (exhibit B) whether their subsequent discussions with Council officers included discussion of a Building Certificate application. Whether or not that possibility was discussed, there is no such application before the Council or the Court. In the absence of that information, the Court would not be in a position to determine whether the requirements of cl 5 of Part 4 section 4.8 of the DCP are met. Conclusion 32The orders of the Court are: (1)The appeal is dismissed. (2)The exhibits, except Exhibits 1, 4 and B, are returned. 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: 04 November 2014