Armstrong Alliance v Kogarah City Council

Land and Environment Court (NSW)|2012-12-13

Mr S Griffiths Pikes & Verekers Lawyers (Respondent) File Number(s): 10698 and 10699 of 2012

Judgment 1These are two appeals in relation to a partially constructed residential flat building at No. 19 Elizabeth Street, Allawah. The building has been constructed contrary to the terms and conditions of Development Consent No. 242/2006 (Consent) issued by Kogarah Council on 16 November 2006 and Armstrong Alliance Pty Ltd has lodged a development application and application for a building certificate seeking to regularise the works. The council has refused both applications and Armstrong is appealing those decisions. 2Matter No. 10698 of 2012 relates to the refusal by the council of Development Application DA/65/2012 that proposed the completion of construction and use of an additional unit at the rear of development at 19 Elizabeth Street. 3Matter No. 10699 of 2012 relates to the refusal of the building certificate application for the residential flat building as constructed on the site.

Background and the applications 4The matters were the subject of conciliation conferences in this Court however no resolution was reached and the conference terminated. Armstrong was granted leave by the Court to rely on amended plans on 26 October 2012. The council did not notify those plans however those persons who had made objections to the original application were advised of the changes and invited to address the Court. 5The parties agree that the matters are heard concurrently and evidence is to apply to both applications. 6The consent authorised the construction of a multi-unit housing development containing 5 x 2 bedroom units with basement carpark for 9 cars. Construction works have commenced and the building now contains a basement carpark and three levels above whereas the approved plans provided for a part 2 and part 3 storey structure above the basement. The final level across the northern portion of the building is still to be constructed. The council alleges the building now contains 6 x 2 bedroom and 1 x 4 bedroom units. The applicant has agreed to enclose openings, fill the area at the northern end of the building (the alleged 1x4 bedroom unit) above the basement and remove plumbing and water fixtures so that the area (undercroft area) is not capable of use for any purpose. The applicant is seeking consent to complete the building and use the sixth unit, described as unit 4, as a dwelling. That unit is located on level 4. 7The building as constructed is subject to a Stop Work Order issued by the council and injunction proceedings have also been commenced and adjourned pending the outcome of these matters. 8In granting consent to the application, the council varied its planning controls relating to lot size, minimum frontage, side and rear setbacks, private open space and impervious areas in recognition that the site was an isolated site bounded on all sides by residential flat buildings. 9The plans on which the applicant relies provide for a number of changes to the building as approved, the main ones being:

Enlargement and reconfiguration of the basement carpark (level 1);
Enlargement of terrace areas adjacent to Unit 1 (level 2);
Terrace in north-western corner increased in size (level 3);
Additional 2 bedroom unit added to rear (level 4). 10In addition to the changes above, the internal layout of the units has altered with ensuites added, room sizes changed and windows deleted/amended. The roof construction has in part been changed from concrete to metal deck and areas of deepsoil planting and planter boxes have been removed. During the proceedings, the applicant proposed further amendments to the plans that reinstated areas of deepsoil planting, introduced additional planter boxes and reduced the extent of terrace areas and compensatory privacy screens along the western boundary. 11For the Building Certificate to be issued, the council requires the applicant to carry out the list of works detailed in Exhibit 5. Armstrong agrees to the extent of work with the exception of the total demolition of unit 4 and the extent of demolition required to the terrace area adjacent to unit 2. In regard to the latter, the applicant has agreed to install additional planter boxes and fencing to limit the extent of access to the terrace. The council agrees that if that work is undertaken, it no longer requires demolition of the terrace. 12The main works involve reduction in size of the blade columns within the basement area, removal of all openings and infill of the undercroft area on level 2, reduction in size of balconies to correspond to the originally approved plans and the demolition of the terrace areas to provide for the deepsoil planting areas referred to at [9]. The applicant seeks retention of unit 4.

The issues 13As a result of further amendments made to the plans during the hearing, the issues in dispute between the parties are summarised as follows:

Whether unit 4 should be retained due to its bulk, height, scale proximity and impacts to adjoining properties;
Whether adequate on-site parking can be provided.

The site and its context 14The site is located on the south-western side of Elizabeth Street between Railway Parade and Rutland Street, has a frontage of 12.19m, depth of 40.815/40.91m and area of 498.2sqm. The land falls approximately 4m from Elizabeth Street to the rear and benefits from a right-of-carriage way over the adjoining property to the north-west (No. 15-17 Elizabeth Street). A steep ramp servicing the basement carpark of the four storey residential flat building on that land is erected within the right-of-way and is also used to access the basement currently constructed on the site. 15To the south-west of the site at Nos. 21-25 Elizabeth Street is a three storey residential flat building above at grade garages so that the building presents as a four storey structure and to the rear of the site are 3 and 4 storey flat buildings fronting Lancelot Street. 16Residential flat buildings are located opposite the site to the west of Barsbys Avenue with one and two storey dwelling houses to the east of that street with more flat buildings further to the east. The dominant built form in the locality is 3 and 4 storey residential flat buildings. 17Allawah shopping centre and Railway Station is approximately 200m north-west of the site.

The planning controls 18The site is zoned Residential 2(b) - Residential (Medium Density) under Kogarah Local Environmental Plan 1998 and multi-unit housing is a permissible form of development with consent. 19State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP65), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and deemed State Environmental Planning Policy - Georges River Catchment apply to the application. 20The Residential Design Guide 2005 - Development Control Plan (RDG) also applies to the site. Its strategic objectives include development in Kogarah maintains and enhances the character and amenity of our neighbourhoods...; ensure new development responds to the character of our neighbourhoods and streetscapes; housing across the City of Kogarah is designed so that it provides choice, is affordable and is suited to the needs of our community. 21According to clause 1.1, the RDG supports the objectives identified in the LEP and establishes a set of objectives, design principles and standards for the character of the street and then requires applicants to demonstrate how their proposal satisfies the objectives, design solutions and controls. The outcomes of the RDG do not focus on compliance with numerical requirements, although numerical requirements have been incorporated to ensure certain outcomes the RDG requires, more importantly, that applicants demonstrate a consideration of design elements in the streetscape, identifying how the proposal responds to those elements. 22Relevant controls are contained in Section 3 and 4 as follows:

3.2 - Height and Envelope Requirements for Multi-Unit Developments
3.4 - Building Setbacks
3.5 - Site Coverage
3.6 - Open Space
3.7 - Vehicular Access, Parking and Circulation
3.8 - Privacy
3.9 - Solar Access
4.2 - Site Area Requirements
4.3 - Minimum Unit Size for multi-Unit Housing. 23The site is within an area where three storey residential flat buildings are permitted with consent.

The evidence 24The hearing commenced on site and evidence was heard from a number of objectors to the applications. The view included observation of the development from within three of the units owned by objectors at Nos 21-25 Elizabeth Street and one at No 15-17 and from the common open space area of an adjoining Lancelot Street unit complex. The issues raised are summarised as follows:

Loss of light/warmth;
Overshadowing;
Light spill;
Bulk, scale, height and proximity of additional wall height;
Loss of outlook/view to sky;
Overlooking/loss of privacy. 25Expert planning evidence was heard from Mr S McDonald for the applicant and Mr M Devlin for the council. 26Mr Devlin agrees, in the event that the Court finds that Unit 4 can be retained and the parking provided is adequate, once the remaining works identified in Exhibit 5 are completed, there is no reason to prevent the issuance of the building certificate. Mr McDonald concurs. 27In relation to carparking, the experts agree that the RDG requires the provision of a maximum of 10 parking spaces and that there is discretion, in clause 3.7.7, to reduce on-site parking in certain circumstances. The objectives of the control include to provide sufficient and convenient on-site parking for residents, visitors and service vehicles; reduce resident on-site parking where public transport is available within reasonable walking distance or where low car parking demand exists. Circumstances where discretion can be applied is if the applicant can demonstrate a reduced parking need arising from, relevant to the application, if the development is within 200m of a train station. 28If the modifications to the columns constructed in the basement carpark are made, the experts agree that the plans provide for a total of 10 parking spaces, of which spaces 1/2, 3/4 and 5/6 are stacked spaces and space 7 is nominated as dual use included also as a carwash bay. Mr Devlin says that space 7 would not be accessible in the event that a bollard was required to protect the travel path to the exit door and stairway on the western side of the building. He also says that spaces 1 and 2 are of inadequate width to comply with the Australian Standard 2890.1:2004 (AS) and do not allow passengers to alight from the car whilst parked. 29Mr McDonald says that the passenger would alight prior to the car being backed into these spaces and whilst Mr Devlin agreed, he was concerned that this would not be appropriate if the passenger was a small child. Mr Devlin did concede that the AS, for residential uses, only required the front door, first stop, to be openable when the vehicle was parked and accordingly, he says only 9 spaces are available within the basement. Mr McDonald agrees that, if the bollard was required, only 9 spaces could be provided. No evidence was available from any expert in relation to whether a bollard was required. For this reason, the case proceeded on the basis that it was. Should it not be required, the parking provided would satisfy the council's control. 30The experts agree that the site is 210m from a ramped entry to the Allawah Railway Station and that, despite this distance exceeding the 200m specified in clause 3.7.7, the variation was minor and not of itself, a reason to reject exercise of the discretion. 31Mr McDonald says the discretion to require only 9 spaces is appropriate in the circumstances of the case due to the proximity of the site to public transport and the availability of on street parking in front of or in close proximity to the site. He says that he has visited the site on 6 occasions at various times of the day and has found parking at least 30m but no more than 50m from the site, either on Elizabeth Street or in Barsbys Avenue. At the times he had regard to the availability of parking, he noted that there had been 6 vacant kerbside spaces in the vicinity of the site and says the area is not heavily parked and cited the fact that parking is not restricted despite the proximity to the railway station as supporting the view that there is adequate on-street parking available. 32Mr Devlin had not undertaken any survey of available parking but considered that parking was limited despite having always been able to find a space when he had attended the site. He was concerned that the failure to provide the 10 spaces on site may tip the balance of on-street parking but did agree that the proximity, safe and easy access to the station goes to the exercise of the discretion to reduce parking. 33The experts agree that the additional unit will result in additional overshadowing of the common open space area at the rear of No. 20-22 Lancelot Street and one bedroom window and a number of kitchen, bathroom and laundry windows and that no living room or balcony area is affected. 34They also agree, that at around 1.30pm, bathroom and laundry windows of No. 21 Elizabeth Street will be overshadowed by Unit 4 and at a later stage so too would a bedroom window. They conclude that the extent of overshadowing is compliant with the RDG controls and that this issue, on its own, is not a reason to refuse the application. 35Mr Devlin says that the non-compliance with the rear building setback has resulted in additional overshadowing that is not anticipated by the council's planning controls and said that if unit 4 was further setback to the required alignment i.e. by a further 1m, it would improve the solar access but not totally eliminate the additional impact. Mr McDonald agreed that the further setback would improve the situation and would also improve the visual impact of the work however says that the narrow width of the rear wall also assists in reducing the bulk of the building, particularly when compared with the adjoining development.

Conclusion and findings 36There are two tasks before the Court, one is to assess the development application on the basis of its merits as if the building had not been built. The other is to determine whether a building certificate should be issued.

Should development consent be granted? 37It is clear that the Environmental Planning and Assessment Act 1979 (the Act) contemplates the determination of a development application involving works that have been carried out in breach of that Act. Section 124 provides for that to occur. This is made clear by Jago J in Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770 where her Honour states: 10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined. 38The path described in Sahade is the precise path the applicant has taken in these proceedings and I have regard to the fact that the council has also commenced proceedings under Class 4 of the Land and Environment Court Act 1979 (the LECAct) as detailed at [7] and it is also open to it to take further action in relation to the unauthorised works should it deem appropriate. In this case, it is important to consider the merits of the application and not consider the legal implications of that work having been undertaken. That is a matter for another day and is made clear by Bignold J in Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 where his Honour at [115 to 117] states: 115. The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning): Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions. 116. In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos). 117. I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views. 39The contentions in relation to the development application require an assessment of whether the proposal as constructed is acceptable in terms of parking, bulk and scale and impact on adjoining properties. 40From the evidence provided, it is apparent that in its determination of the original application, the council granted concessions to the applicant in terms of setbacks to reflect the narrow width of the property whilst allowing a built form that it considered did not have unreasonable impacts on adjoining properties. The works proposed follow the same side setback and propose setting the rear wall of unit 4 an additional 1m from the rear boundary. 41Having had the benefit of a site view and heard the evidence from the planning experts, I am satisfied that the design of the development, subject to the additional works required to allow the issue of a building certificate, would be consistent with the character of the area. 42Provided the rear wall of unit 4 is setback a further 1m, that is, 2m in total from the rear wall of the lower unit and 4.6m from the rear boundary, I consider that it is an appropriate form of development for the site, particularly noting the ultimate height of the building at its front as approved by the council. Such height is not inconsistent with the established character and of particular importance, the impacts of the work would achieve compliance with the council's controls for solar access. The bulk and scale of the building is less than those buildings it adjoins and I am satisfied, in its context that the additional unit will not be out of character. 43I am also satisfied that the site is in an area within reasonable walking distance to public transport and a relatively low demand for on-street parking. For that reason, I consider that, in the event that a bollard is required adjacent to the egress door, it is appropriate to vary the parking requirement so that only 9 spaces are provided within the basement area. The applicant has provided preliminary advice from a structural engineer that it is possible to modify the columns within the building to provide access in accordance with the AS. It will be necessary for an enginnering certificate to be provided to ensure that this can occur as I would not support a further reduction in the number of spaces to be provided on site to less than 9. As one of those spaces is to be dual use, as a carwash bay and also for parking, it is appropriate that this space is allocated to visitors. In the event that space No. 7 is not available, the wash bay would also have to be relocated within the basement area. 44Having found the built form of the works is an appropriate form of development, provided it is modified by a further 1m reduction in the depth of unit 4 so as to increase the rear setback to comply with the council's control, consent should be granted. 45For the reasons given in [42], it is appropriate that any consent granted, is issued as a deferred commencement, requiring certification that the columns within the basement carpark can be modified in accordance with the plans agreed between the parties and, on modification, are structurally adequate to support the final development as approved by the council and, as modified by this determination.

Should the building certificate be issued? 46Determination of the application for the building certificate is also required. Section 149D of the Act details the Council's obligations to issue a building certificate as follows: (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 47The Court's powers on appeal are wider and, under s 149F(3), it may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 48The experts agree, subject to the structural certification of the building and the completion of works detailed in Exhibit 5 that, as I have found that consent should be granted for Unit 4, the building certificate could be issued. 49The parties did not agree on one of the proposed consent conditions and that is the condition that relates to the allocation of parking. In the event that the bollard is not required and 10 spaces can be provided, all units could be allocated parking spaces. In the event that only nine spaces can be provided, as detailed above, it is necessary to relocate the carwash bay and provide a visitor space in that location so one unit would not be allocated parking on site, consistent with the council's strategy for reduction in on site parking. 50The Orders of the Court are: (1)In matter No. 10698 of 2012 (a)The appeal is upheld in part. (b)Development Application DA/65/2012 for the completion of construction and use of an additional unit at the rear of development at 19 Elizabeth Street, Allawah, is approved on a deferred commencement basis, subject to a 1m increased setback from the rear boundary so that the unit is setback a minimum of 4.6m from the rear, south-western property boundary and certification of the structural adequacy of the basement support columns to ensure that parking can be provided for a minimum of nine cars. On satisfaction of the deferred commencement conditions, the consent will be subject to the conditions included in Annexure "A". (2)In matter No. 10699 of 2012 (a)The appeal is upheld. (b)On completion of the works detailed in Annexure "A" and receipt of certification for that work from accredited certifiers, Kogarah Council is directed to issue a building certificate for the building at 19 Elizabeth Street, Allawah. (c)The exhibits, other than Exhibits B, H, K, 1 and 5 may be returned.

Sue Morris 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: 03 January 2013

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