Land and Environment Court New South Wales Medium Neutral Citation: Abou-Anton v City of Ryde Council [2018] NSWLEC 1334 Hearing dates: 10-11 April 2018 Date of orders: 04 July 2018 Decision date: 04 July 2018 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1) Appeal 2017/165218 for building certificate application number BC-2017/6 is dismissed. (2) Appeal 2017/252167 for building certificate application number BC-2017/26 is upheld, subject to the requirements of Order (3). (3) The Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, to issue a building information certificate in respect of the dwelling house at 176 Princes Street, Putney upon the satisfaction of the Council that the conditions in Annexure "A" have been met within six (6) months of these orders. (4) The exhibits are returned other than Exhibits A, B, C, 3, 5 and 6. Catchwords: APPEALS: building information certificates; unauthorised works to dwelling house; dwelling not built in accordance with complying development certificate; nominal development application assessment required; amenity impacts; view loss; overheight fence; requirement for stormwater easement Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 Ryde Development Control Plan 2014 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Davies v Penrith City Council [2013] NSWLEC 1141 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 Category: Principal judgment Parties: Saimon Abou-Anton (First Applicant) Kay Ishak (Second Applicant) Ryde City Council (Respondent) Representation: Counsel: A Pickles SC (Applicants) Solicitors: Mills Oakley (Applicants) C Gough, Storey & Gough Lawyers (Respondent) File Number(s): 2017/165218 and 2017/252167 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings concern two appeals lodged by the applicants pursuant to then section 149F, now section 8.25, of the Environmental Planning and Assessment Act 1979 (the Act) against the actual and deemed refusals respectively by the City of Ryde Council (the Council) of Building Certificate Applications numbered BC-2017/6 (BC1) and BC-2017/26 (BC2). 2. The applicants are the owners of a dwelling house (the appeal dwelling) at 176 Princes Street, Putney (the appeal site). Certain works undertaken at the appeal site were undertaken without consent (the unauthorised works). These proceedings concern whether a building certificate, now known as a building information certificate, should be issued for these unauthorised works. 3. The unauthorised works were described in the applicants' Statement of Facts and Contentions (SFC - Exhibit C) as follows: * Modification to window openings and the upper level roof line; * Internal modifications to the existing lower ground floor; * Internal and external modifications to the existing ground floor including the addition of a rear sunroom; * Addition of a first floor above the existing ground floor (referred to by the Council as the third storey); * Treatment to the front facade and finishes applied to the entire dwelling; * Concreting over and sealing of the existing driveway; and * Stormwater, landscaping and fencing works. 1. BC1 was lodged to regularise only the modification to the window openings and the upper level roof line whereas BC2 covered all other unauthorised works but also incorporated the works sought under BC1. 2. In the SFC in Reply filed by the Council (Exhibit 3), the Council indicated that BC2 sought approval for all buildings on the property but also requires work to be undertaken to include horizontal privacy screens to side facing second storey windows and to create the bathroom and storage room on the third storey of the appeal dwelling, as well as construction of retaining walls and excavation of the rear yard to create overland flow paths. 3. At the hearing, the parties agreed that I should dismiss BC1 and only issue, if appropriate, a building information certificate for some or all of the works comprising BC2 and as required by the Council. Background 1. Based on information contained in Exhibits C and 3, the background to the unauthorised works on the appeal site can be summarised as follows. 2. In 2014, development consent was granted to construct a secondary dwelling within the existing dwelling under development application LDA 2013/0438. However, the consent was never implemented. 3. In October 2015, the applicants purchased the site. 4. In March 2016, a complying development certificate (CDC) No. 116/186-1 was issued under the provisions of Part 3 - Housing Code (the Housing Code) of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP). The CDC was for "alterations and additions to the existing dwelling". In September 2016, another CDC was issued for "alterations and additions to an existing dwelling Typographic Error". 5. In July 2016, the Council issued a "Stop Work" Order on the applicants pursuant to then item 19 of s 121B of the Act directing the applicants to cease all building works that deviated from the CDC. 6. In August 2017, the Council commenced Class 4 proceedings against the applicants under the provisions of the Land and Environment Court Act 1979 (NSWLEC 2016/260465). In those proceedings (yet to be determined), the Council sought, inter alia, a declaration that the CDC was void and of no effect and that building works had been unlawfully carried out, as well as an order for the demolition of these works. 7. In October 2016, the Court ordered the Class 4 proceedings be mediated. Mediation was held on 22 December 2016 where it was agreed between the parties that a building certificate application should be lodged in an attempt to resolve the dispute. 8. In January 2017, the applicants lodge BC1 which was refused by the Council on May 4, 2017. On June 1, 2017 the applicants commenced Class 1 appeal proceedings against the refusal of BC1. Subsequently the Council advised that the matter could not be resolved by BC1 as it did not cover all of the unauthorised works. As a consequence, BC2 was lodged in July 2017 incorporating additional unauthorised works requiring consent. On August 18, 2017 the applicants commenced Class 1 appeal proceedings against the Council's deemed refusal of BC2. 9. In November 2017, the applicants were convicted and fined in the Burwood Local Court for failure to comply with the "Stop Work" Order. 10. Mr Gough, for the Council, submitted that, should the Court require the Council to issue a building information certificate, that issuance not be conditional upon works being subsequently undertaken but instead require these works to be undertaken prior to the issue of the certificate given the applicants' past record of not undertaking works required of them. Statutory provisions regarding building certificates 1. The two building certificate applications were lodged with the Council under then s 149B of the Act. Following the commencement of the Environmental Planning and Assessment Amendment Act 2017 on 1 March 2018, the provisions of s 149B were relocated to Division 6.7 of the Act. As a result of the amendments, the certificate that the applicants now seek to be issued is a building information certificate. 2. Section 8.25(3) of the Act sets out the powers of the Court on building information certificate appeals as follows: "(3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate." Neighbour objections 1. BC1 was notified to surrounding owners and occupiers and submissions were received from the two adjoining (side) neighbours objecting to the development. BC2 was not notified. 2. At the commencement of the hearing, the Court inspected the unauthorised works and heard from the two objecting neighbours, including viewing the appeal dwelling from their properties. The Court was accompanied by the parties and their experts. 3. The owners of 174 Princes Street (No. 174) raised concerns in terms of the bulk and height of the appeal dwelling claiming it exceeded the permissible height under the Council controls by up to 1.44m. These controls also only permit 2 storeys whereas the dwelling was clearly more than 2 storeys. In addition, the windows were much larger in size and location than in the approved plans. 4. As a result, there was a total lack of privacy for their family who can no longer use rooms and private open spaces in their home, in particular visual privacy impacts on the use of their balcony, pool area, clothesline, lounge room and main bathroom. Further, due to the bulk of the building, the overshadowing was far greater than demonstrated in the shadow diagrams. 5. In addition, they claimed that, prior to the construction of the appeal dwelling, the rear terrace of their property had extensive views of the Parramatta River and the Olympic Park Precinct skyline. Had the development been constructed in accordance with the CDC, there would have been minimal impact on these views. 6. Furthermore, when they constructed their home in 2004, it was necessary for them to formalise an easement to drain water but there was no stormwater management plan implemented for the appeal site, including formalisation of easements for drainage. Excessive rains can occur along with run-off from neighbouring properties, so flood mitigation was imperative. They had personal experience of flooding following construction of the appeal dwelling. 7. Finally, the third floor of the appeal dwelling was occupied without consent and the applicants had continued with illegal building works despite Council advice to the contrary. They disregarded the requirements of the Council and of the appropriate codes. 8. The neighbour at 178 Princes Street (No. 178) raised similar concerns. She had lived at No. 178 for many years and claimed that her quality of life had been severely impacted by the appeal dwelling with a total loss of privacy to her home and rear outdoor areas, including pool and clothesline. On the northern side of her house, there was a loss of light. She had had to install screens to her veranda to reinstate her privacy further removing light to the house and reducing her outlook. Furthermore, the upper level windows overlooked her backyard and were not in accordance with the approval being much larger and longer. There were also foldback windows to the sunroom, not approved, adding to the overlooking of her rear yard. 9. This neighbour also raised concerns with damage to her property during construction including run-off into her rear yard. She had concerns with the excess height of the driveway gate and with the applicants' continued non-compliances with Council controls. Notional development application considerations 1. In considering the appeals, the Court re-exercises the functions of the Council in determining the building certificate applications but has the additional powers conferred by s 8.25(3) of the Act. In exercising those functions, the Court has variously referred to any such applications as being "hypothetical or notional development applications": Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276. 2. On the basis of assessment as a notional development application, it is necessary to consider the nature of the development, the zoning of the site on which it is situated and its context, and the relevant development controls. 3. A dwelling house is a permissible use with consent in the R2 Low Density Residential zone in which the appeal site is situated under the Ryde Local Environmental Plan 2014 (the LEP). 4. Development is also subject to the provisions of the Ryde Development Control Plan 2014 (the DCP) and the Building Code of Australia (the BCA). 5. The appeal site is situated on the eastern side of Princes Street and has an area of 1037m² with a frontage of 15.245m to Princes Street and a depth of some 68m. It slopes down from the north eastern boundary to the south western boundary with a cross fall of some 2.37m and is flood affected 6. The appeal site contains a dwelling house accessed from Princes Street. The Council described the dwelling house as 3 storeys, with a height of 10m from the basement to the ridge. It is adjoined on the northern (side) boundary by a 2 storey dwelling house and on its southern (side) boundary by a part 1, part 2 storey dwelling house. 7. The appeal site is within a low density residential area. The applicants argued the area comprises a mix of dwellings, most of which present as single or 2 storeys to the street but with a number of dwellings which present as 3 storeys, including across the road on Princes Street. 8. Expert evidence was provided to the Court and summarised in Expert Joint Reports: on BCA compliance by Mr Boyce for the applicants and Ms Gordon for the Council (Exhibit 4); on stormwater by Mr Noaman for the applicants and Mr Pearse for the Council (Exhibit 5); and on planning matters by Mr Swan for the applicants and Mr Nash for the Council (Exhibit 6). 9. In the SFC In Reply (Exhibit 3), the Council accepted that compliance with the zone objectives, and the setbacks associated with the unauthorised works, would not be a basis to refuse to issue a building information certificate. 10. The BCA experts also agreed that, subject to correct updated Architectural plans and an updated BCA report, concerns with BCA compliance would be addressed. Height and character 1. The Council contended that the height of the appeal dwelling was excessive resulting in unacceptable visual impact and bulk when viewed from the public domain and adjoining properties, and unacceptable overshadowing. 2. The maximum permissible height for the appeal site under the LEP is 9.5m. The Council submitted that the appeal dwelling has a building height of 10.09m in contravention of the height standard at cl 4.3 of the LEP and did not meet the following 3 objectives of that standard as set out in cl 4.3: 1. To ensure that street frontages of development are in proportion with and in keeping with the character of nearby development. 2. To minimise overshadowing and to ensure the development is generally compatible with or improves the appearance of the area. 3. To minimise the impact of development on the amenity of surrounding properties. 1. The Council also claimed the development did not comply with the objectives of clauses 2.8.1 and 2.8.2 of Part 3.3 of the DCP being: To ensure that the height of the development is consistent with the desired future character of the low density residential areas and is compatible with the streetscape. To ensure that the height of dwellings does not exceed 2 storeys. To provide amenity for dwellings. 1. The development has a wall plate height greater than the 7.5m permitted by the DCP, and is 3 storeys, contrary to control (a) of DCP cl 2.8.1. A 3 storey building also contravenes cl 2.1 - Desired Future Character and cl 2.2.1 - New Dwelling Houses. 2. The DCP defines desired future character of the low density area (of relevance to these appeals) as one that: Has a low scale determined by a maximum 2 storey height limit. Has buildings which are well designed and have a high degree of amenity. Has streetscapes made up of compatible buildings with regard to form, scale, proportions (including wall plate heights) and materials. 1. The Council contended that the appeal dwelling was not consistent with the desired future character of the area as it did not have a low scale (being greater than 2 storeys) especially when viewed from the south-west and north-east. It was therefore not compatible with surrounding dwellings in terms of form, scale and proportions. 2. Mr Pickles, senior counsel for the applicants, did not dispute that there was a non-compliance for a portion of the dwelling with the wall plate height and number of storeys required by the DCP. However, he submitted that these elements were barely visible from the street or neighbouring properties and compliance with the LEP maximum height was still achieved. 3. The planning experts agreed that the locality is in transition through redevelopment and that the built form and streetscape character of Princes Street is diverse being driven by topography. The western side is the high side and the eastern side the low side. 4. Mr Nash had undertaken a survey (Exhibit 6, Attachment 7) which indicated that single storey dwellings are the predominant scale in the street, at some 50%, although dwellings built in the past decade are predominantly 2 storeys. 5. His position was that the emerging character on the western side of Princes Street was 2 storeys with an additional level for garaging utilising the fall of the site with consistent front setbacks. The eastern side is characterised to the north of the appeal site by dwellings setback substantially from the street to facilitate overland flow of floodwater. The fall of the land from the street frontage means that dwellings may be 2 storeys over a parking level but do not present to the street in those terms. To the south of, and including, the appeal site, dwellings have a 7-8m setback. 6. In Mr Nash's opinion, the front facade of the appeal dwelling presents as 2 storeys to the street but, when viewed from Princes Street south of the site, clearly reads as 3 habitable storeys and visually dominants dwellings fronting Princes Street to the south. Mr Nash also noted that the maximum height permissible under the Housing Code for CDC dwellings is 8.5m. 7. Mr Swan had undertaken a streetscape analysis (Exhibit 6, Attachment 8). He disagreed with Mr Nash that Princes Street is predominantly single storey and that surrounding dwellings are not 3 storeys. He notes this equated to Mr Nash's description of dwellings as 2 storeys plus garage at another level given garages are "storeys" by definition. Further, visually these dwellings read as 3 storeys. He reiterated that the area is undergoing change with all recent built form being either 2 or 3 storeys, with one even at 4 storeys. He also argued that the built form which Mr Nash said was unacceptable is significantly setback in contrast to other dwellings in the area. 8. Mr Swan therefore concluded that the appeal dwelling is compatible with the existing and desired future character, given the street is undergoing change with built form to 3 storeys (and one at 4 storeys), the majority of dwellings in close proximity are at least 3 storeys, and the third storey element of the appeal dwelling is significantly setback from the side boundary unlike surrounding dwellings which have reduced side boundary setbacks. 9. There was dispute between the experts as to how to calculate height and what the existing ground level was although both agreed that it was appropriate to have regard to the calculation of height on the basis of the Court's decision in Bettar v Council of the City of Sydney [2014] NSWLEC 1070. 10. Mr Nash acknowledged that there were limited survey spot levels available to determine the cross fall. However, he considered that, if the roof form was built in accordance with the 8.5m height as shown on the CDC drawing and required by the Housing Code for CDC development, height compliance could be achieved. He claimed the "as built" roof form and wall height of the appeal dwelling did not satisfy objectives b) and d) of the LEP height standard in cl 4.3 given the unacceptable amenity impacts on adjoining (side) neighbours. 11. In this regard, the owners of 174 Princes Street claimed that, prior to the construction of the rear roof element, their property had views and vistas of the Parramatta River and to the Olympic Park Precinct skyline from a standing position on the rear elevated deck. Whilst Mr Nash accepted river views may not have been retained with CDC compliance, he considered that a portion of the view/vista would have remained if the rear skillion roof was built at the height approved. This was not an unreasonable on unnecessary outcome. 12. In terms of 178 Princes Street, Mr Nash contended that the impacts were overshadowing, loss of natural light and visual dominance of the appeal dwelling when viewed from within and outside that property. The unauthorised works resulted in windows facing, and enlarged outdoor living areas directly adjoining, the kitchen and dining room of No. 178. Further, the height and form of the roof resulted in excessive overshadowing of the principal living areas of No. 178 and decreased access to natural light of the living room. In his view, a reduction in the roof height as per the CDC would improve the situation and also ameliorate the overbearing visual character experience when viewed from within and outside the residence at No. 178. 13. In summary, Mr Nash argued that a return to the roof form at the centre and rear portions of the building as approved under the CDC would ameliorate the adverse visual impact on both adjoining dwellings at 174 and 178 Princes Street and improve natural light to the living areas of No. 178. 14. Mr Gough also submitted that the skillion roof, which was over the sunroom, family area and dining room provided little utility to the occupants of the appeal dwelling but had adverse consequences for the neighbours in terms of unnecessary bulk and scale and a reduced vista and outlook from No. 174. Having regard to the Court principles outlined in Davies v Penrith City Council [2013] NSWLEC 1141, the impact of this component of the development on adjoining neighbours was not reasonable. 15. Mr Swan did not consider the appeal dwelling as built to be excessive nor to result in unacceptable impacts on adjoining properties. He argued the constructed dwelling complied with the LEP height limit which was the appropriate control. The land was falling away from the road and also in a north-south direction. He outlined his methodology for determining the likely original natural ground level prior to any development of the site to accurately identify a height envelope on a worst-case scenario. He believed, when using this envelope, the dwelling sits comfortably below the 9.5m height limit being 9.1m at its highest point with the rear portions sitting below 8m. 16. Given the dwelling satisfied the height standard, Mr Swan argued it must also meet the LEP objectives for that standard. 17. In terms of the impact to the rear views and vistas from No. 174, Mr Swan considered the impacts reasonable as the rear portion of the appeal dwelling is lower than at the front given existing ground levels and more than complies with the LEP 9.5m height limit. This part of the dwelling is 3m from the side boundary more than complying with side boundary setbacks. 18. During oral evidence, Mr Nash indicated that it may not be reasonable to require the third storey to be removed if the height was compliant with the permissible height in the LEP. However, he still argued removal of the skillion roof should be required. Notwithstanding the removal may have no or limited material improvement in terms of view loss for No. 174, it would still improve the outlook and bulk at the rear when viewed from both adjoining properties. Solar access and overshadowing 1. The Council contended that the appeal dwelling caused unacceptable overshadowing of the north facing windows of 178 Princes Street which are living areas. This was due to the height of the appeal dwelling resulting in those windows receiving less than three hours of sunlight in midwinter between 9am and 3pm. 2. This contravened cl 2.14.1 of Part 3.3 of the DCP which has objectives of maximising solar access to ensure new development maintains appropriate sunlight access to neighbouring dwellings and their private open space. To achieve this, development must ensure windows to north facing living areas of neighbouring properties receive at least 3 hours of sunlight between 9am and 3pm in midwinter when this can be reasonably maintained given the orientation and topography of the site and of neighbouring sites. 3. The experts agreed that the topography, orientation and location of the living area of 178 Princes Street worked against that area obtaining sunlight in midwinter. Mr Nash considered however the extent of overshadowing of No. 178 remained unacceptable directly relating to the non-compliant wall height and roof form of the "as built" structure being substantially greater than the roof form indicated in the CDC drawings. He reiterated that, if the roof form reflected that indicated in the CDC, the extent of overshadowing and loss of natural light to No. 178 would be reduced. 4. The applicants provided a hypothetical dwelling envelope compliant with the Housing Code to demonstrate that similar overshadowing occurred. However, Mr Nash noted that the CDC approved under the Housing Code had a roof form and height significantly lower and less visually dominant than what exists. 5. Mr Swan maintained that the shadow diagrams demonstrated that, even with a compliant 2 storey dwelling, the living room of No. 178 would still not achieve solar access at midwinter and it was therefore unreasonable to have to maintain sunlight to this living room. This was as a consequence of the topography being such that No. 178 is lower than, and south of, the appeal site, with poor orientation of its living room centrally located. 6. He argued that, over time, this old dwelling would likely be redeveloped as had occurred for many surrounding houses. When this occurred, it would be highly likely that its living space would be relocated to the rear to take advantage of the large rear yard and outlook whilst also obtaining good access to sunlight. Mr Swan also considered that the development satisfies the DCP solar access controls as, although the living room at No. 178 would not receive at least 3 hours of sunlight between 9am and 3pm in midwinter, this was because of the orientation and topography of the appeal site relative to No. 178: considerations which the DCP had regard to. Overlooking and privacy 1. The Council contended that the dwelling overlooked adjoining residential properties resulting in a reduction of their residential amenity. 2. In response, the applicant offered to undertake changes to the windows and install privacy screens. As a consequence, the experts agreed that no adverse privacy impacts arise from windows on the eastern or southern elevations. In coming to this conclusion, they noted that overlooking of rear yards in the area, particularly given their depth, is a common feature including for the dwellings at 174, 176 and 178 Princes Street. 3. However, having regard to the issues raised by the neighbour at No. 178 and viewing the impact of the development from her rear yard, the Council sought an order that the applicants be required to plant appropriate "super advanced" trees and vegetation along the rear southern boundary, where it was outside the overland stormwater flow path, to provide an effective privacy screen between the appeal dwelling and 178 Princes Street. 4. Mr Pickles submitted that it was unreasonable and unusual for landscaping to be required for a building licence application, as opposed to a development application, and he noted this was not a contention raised by the Council. He also submitted that the Court should assume that the applicants would provide such landscaping as it was their intention to landscape their rear yard, including alongside boundaries, once any required further works were undertaken. Front fence and driveway gate height 1. The Council contended that the height of part of the front fence and of the driveway gate was unacceptable and detracted from the amenity of the public domain and streetscape character contrary to the objectives of the DCP. 2. The front fence and its return range in height from 0.92m to 2.083m. The DCP at cl 2.16.1 of Part 3.3 requires a maximum height of 900mm for solid fences, 1m for open lightweight fences, or 1.8m for fences with an openness ratio of at least 50%. The Council contended that the fence and return are solid and exceed these controls on the south western side boundary, as does the height of the driveway gate. Further, that the fence does not "step down" commensurate with the fall of the natural ground level and therefore adversely affects the public domain and the streetscape. The fence and driveway gate heights also impose an unacceptable visual impact on the residents of 178 Princes Street. 3. The experts agreed that there was no consistent presentation of front fences in this section of Princes Street and that there was no issue with that portion of the front fence north of the pedestrian entry gate, given it steps down with the topography. 4. South of the pedestrian gate, Mr Nash considered the height and massing of the masonry and infill elements of the fence to be visually dominating in the streetscape failing to respond to the slope of the street, with the southernmost masonry post having a height of 2.08m. The 2m high metal driveway gate accentuates that visual dominance. He suggested measures which could be taken to ameliorate this dominance: namely, the maximum height of the posts and infill panels being consistent with the height of the glass balustrade on the retaining wall return to the driveway; the masonry elements stepping down the street; and the metal gate being replaced with a gate not exceeding the height of the top of the retaining wall return. The Council sought these amendments as outlined by Mr Nash in Attachment 11 of the Joint Report (Exhibit 6). 5. Mr Swan disagreed that any of the front fence or the gate was unacceptable or detracted from the amenity of the public domain or streetscape character. He had undertaken an analysis of front fences within the street and locality and argued the portion of the masonry post at 2.08m is serving two purposes: as a retaining wall and a front fence. He accepted however, that the fence could be lowered and still maintain its retaining wall function. 6. In summary, Mr Swan considered the fence and gate to be acceptable given there were no consistent fence presentations in the street, the area of concern served as both a retaining wall and front fence, and the land slopes which results in a height variation. In addition, his analysis indicated there were other fences in Princes Street of a similar height and the fence made a contribution to the streetscape being of a high quality. Flooding and stormwater drainage 1. Under cl 6.33(3) of the LEP, consent cannot be issued unless the consent authority is satisfied that the development is compatible with the flood hazard of the land, will not significantly adversely affect flood behaviour, incorporates measures to manage risk to life from flood, will not significantly adversely affect the environment, and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 2. The application was not accompanied by a Flood Impact Assessment with the site below the applicable flood planning level and within a medium flood risk precinct. However, an Overland Flow Impact Statement (OFIS) prepared by Mr Noaman was submitted. 3. The Council contended that the applicants did not lawfully convey stormwater from their property to public drainage infrastructure as required by Part 8.2 of the DCP at cl 2.3(a). This clause requires stormwater run-off from a property to be directed to either public drainage infrastructure, a natural watercourse or a public reserve under gravity feed. Due to the absence of easements over adjoining properties for stormwater drainage, this requirement had not been met. 4. The engineering experts in their Joint Report (Exhibit 5) agreed that the unauthorised works result in a relatively negligible increase in hardstand area with the appeal dwelling discharging stormwater into the inter-allotment drainage line traversing the property which appears of recent construction and to operate adequately. They also agreed the site's drainage system is adequate for the purposes of flood mitigation and stormwater management subject to works being undertaken in accordance with the OFIS. It was for others to determine the legal requirements for easements over the system which then drains over downstream properties. 5. The Council provided a copy of the consent for the dwelling house at 172 Princes Street issued by the Council in 2003. A condition of that consent required a private easement to drain stormwater across the adjoining (downhill) property to the south at 174 Princes Street but no further downstream. The Council also provided a Title search which indicated easements for drainage were registered on No. 172 when it was subdivided into two in 1998 benefitting a number of upstream properties. 6. Mr Gough sought a requirement for drainage easements for all properties downstream of the appeal site on the eastern side of Princes Street to what is understood to be a public drainage system in Phillip Road. However, no evidence or details of this downstream drainage network were provided. Mr Gough submitted that the Court had the power to, and should, require the applicants to gain all of these easements. 7. Mr Gough subsequently filed a proposed draft order, with the agreement of the Court, to this effect requiring that, should the Court issue a building information certificate, the following should first occur: An easement to drain stormwater must be established over the downstream properties in order for the development to legally drain via gravity to the downstream public drainage infrastructure. The easement is to be located over the existing line of stormwater pipes within the downstream properties. Registration of the drainage easement with the New South Wales Land Registry Services, including the terms of the drainage easement and its location on the burdened lot(s), must be effected prior to the issue of the building certificate. 1. Mr Pickles submitted that the Court should and could only reasonably impose an easement over the appeal site benefiting the adjoining upstream property which would facilitate completion of the drainage easement across all properties as each property develops. Further, that whilst it may be appropriate to provide an easement on the site benefitting upstream properties, it was not reasonable to have to obtain easements over (that is, which burden) downstream properties. 2. The applicants also contended that the Council had previously approved the existing system for the disposal of stormwater at the site under the 2013 development application: DA 213/438. This consent did not require any easement over downstream properties for drainage. Findings 1. The primary concern of the Council, and of the adjoining neighbours, with the unauthorised works on the appeal site are the adverse impacts associated with the height, bulk and scale of the resultant dwelling on neighbours in terms of outlook, overshadowing and overlooking. These are compounded by the height of the front fence and driveway gate. The overland flow of stormwater also needs to be addressed. 2. Dealing firstly with the amenity impacts arising from the appeal dwelling on the basis of an assessment as a notional development application. 3. Whilst I note and accept that the Council did not press the requirement to remove the top level constituting the third storey, the retention of the rear skillion roof over the sunroom and rear living areas of the appeal dwelling continued to be opposed notwithstanding it complies with the LEP maximum height and DCP storey controls. 4. This was largely on the basis, not disputed by the applicants, that this section of the roof is unnecessarily high being a height not required for the areas to be reasonably utilised and appears to offer little utility to the applicants. However, it causes unnecessary additional bulk and outlook impacts to neighbours. This includes reducing the southern vista available from the rear terrace of No. 174 even if it does not, of itself, result in the loss of river views from that property. 5. It was Mr Nash's evidence that the rear skillion should be lowered to reflect the height and form approved in the CDC and achieve maximum wall height compliance with the DCP in order to reduce adverse and unnecessary impacts of the appeal dwelling on its neighbours. 6. Having regard to the "reasonableness" principle in Davies, I agree. I therefore support the order sought by the Council for the lowering of the skillion roof at the rear of the dwelling. 7. I do so having regard not to what was approved in the CDC, but what would reasonably have been approved in a development application that was not CDC or DCP compliant. Also, I consider that, whilst the improvement to the amenity of neighbours may be limited as a result of requiring this work, it will still be tangible. Furthermore, the applicants' amenity is not significantly compromised and they retain the more substantive amendments to the CDC approved dwelling including retention of the unauthorised third level bedroom, bathroom and storage area. 8. In not requiring any further amendments to the appeal dwelling itself, it is in part on the basis of the agreed expert advice that a compliant dwelling house developed under the SEPP would similarly overshadow the living areas of No. 178 in midwinter given the location of those areas closely adjoining the southern boundary of the appeal site. 9. I also find that, from a streetscape perspective, the bulk and scale of the appeal dwelling is not dissimilar to other new dwellings in Princes Street, with the third storey element recessed. 10. In terms of overlooking, the applicants agreed to provide privacy screens to specific windows on the southern and eastern elevations to remove the majority of overlooking concerns. However, the foldback windows in the rear (eastern) elevation of the sunroom and living areas were not proposed to be screened and were of particular concern to the resident of 178 Princes Street as they directly overlook her rear yard from an elevated level. This overlooking is compounded by the fact that the rear yard of the appeal site has been cleared and no landscaping installed pending resolution of the unauthorised works. 11. I accept Mr Pickles' submission that it is not usual for landscaping to be required as part of a building licence application, the requirement for it along the common side boundary with 178 Princes Street was not a contention raised by the Council, and that overlooking of rear yards is not uncommon in the area. However, landscaping was a possible privacy measure I raised having been to the site and viewed the appeal dwelling and its overlooking of the rear yard of No. 178. 12. The site visit also informed the role played by boundary landscaping in minimising overlooking of rear yards from adjoining properties. It was also a particular matter of concern for the owner of No. 178 given the large extent and use of her rear yard. Whilst Mr Pickles indicated that the applicants were intending to provide such landscaping, I do not accept that the Court should assume that this will necessarily occur. 13. On this basis, I consider it a reasonable and not overly onerous requirement, with mutually beneficial outcome, that landscaping is provided along the common side boundary with No. 178 in appropriate locations and of a form to reduce the potential for overlooking of No. 178, if such landscaping has not already since been provided. 14. In terms of the front fence, I agree with the Council that the portion south of the pedestrian gate, and the driveway gate, which both exceed the maximum height for front fences supported in the DCP, have an adverse visual bulk impact on the streetscape and on 178 Princes Street and do not follow the topography of the site's frontage. I was not persuaded that the height was necessary or appropriate. Accordingly the applicants are required to modify that portion of the front fence as well as the driveway gate to reduce their height as outlined in Attachment 11 to the Joint Expert Town Planning Report (Exhibit 6). 15. In terms of requiring the applicants to secure downstream easements for the existing inter-allotment stormwater system prior to issuing a building information certificate, I have considered this to be an unreasonable requirement in the circumstances. 16. Other than at 172 Princes Street, where a dwelling consent required a downstream easement burdening the immediately adjoining downhill property at No. 174, and an easement associated with the subdivision of No. 172 benefitting upstream properties, there was no evidence of the Council enforcing or requiring downstream drainage easements for development in the street. Even the downstream easement burdening No. 174 only required an easement on that property not all subsequent downstream properties, as the Council is now seeking. 17. For CDC compliant development no such requirement would be imposed. Had the applicants not undertaken the unauthorised works no such easement would be retrospectively sought. 18. Subject to the recommended works agreed by the experts, the evidence was that the proposed level of flood protection would be adequate and that the unauthorised works had negligible impact on stormwater flow levels and no impact on the existing inter-allotment drainage system. 19. Whilst I appreciate Mr Gough's submission that it may be opportune for the Court to resolve and formalise the Council's desired drainage network for the eastern side of Princes Street, that is not, in my view, an appropriate or equitable burden to impose on one owner of a dwelling in the street as a result of works which do not materially impact on the existing inter-allotment drainage through the site. 20. There was no requirement for downstream easements across all properties imposed on the consent for the secondary dwelling on the appeal site, or on the developers of No. 172 in the evidence provided to the Court. There was also no evidence of where the downstream public drainage infrastructure actually was where such easements would terminate, or if easements could be accommodated on all properties downhill from the appeal site. 21. There is also the issue that the immediately adjoining neighbour to the south opposes the development, is not likely to willingly grant any such easement and would likely feel further aggrieved should the Court impose a drainage easement burden over her property in favour of the applicants, albeit such a course of action may be available to the Court and could reasonably be taken were such an easement required as a result of the development. However, the evidence was that the easement was not required as a consequence of the development. 22. There remains the opportunity as properties develop to the south, and if development consent is required, for the Council to implement easements for the existing inter-allotment drainage system over each property. This would, over time, result in connection to the public drainage system which is understood, but not confirmed, to be downhill in Phillip Road. 23. Mr Pickles did however, accept that an easement could reasonably be imposed on the appeal site over the stormwater drainage system to formalise the conveying of stormwater from properties to the north and traversing from 174 Princes Street. This would continue the easement for stormwater infrastructure to convey water from that property and flowing through it from upstream properties further north to the southern boundary of the appeal site. 24. Accordingly, I consider it is appropriate to order that an easement over the stormwater system be created and registered burdening the appeal site and benefitting 174 Princes Street prior to the building information certificate being issued. Orders 1. The Court orders that: 1. Appeal 2017/165218 for building certificate application number BC-2017/6 is dismissed. 2. Appeal 2017/252167 for building certificate application number BC-2017/26 is upheld, subject to the requirements of Order (3). 3. The Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, to issue a building information certificate in respect of the dwelling house at 176 Princes Street, Putney upon the satisfaction of the Council that the conditions in Annexure "A" have been met within six (6) months of these orders. 4. The exhibits are returned other than Exhibits A, B, C, 3, 5 and 6. ………………………. Commissioner Jenny Smithson Annexure A (60.9 KB, pdf) ********** 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: 05 July 2018