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.