Barton v Ku-ring-gai Council

Moy v Warringah Council [2004] 133 LGERA 49; 142 A Crim R 577; NSWCCA 77; CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685; Falcomata v Ku-ring-gai Council (No 2) [2005] 143 LGERA 346; NSWLEC 459

DATES OF HEARING: 9 May and 23 August 2006

APPLICANT Mr S Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10184 & 10185 of 2006 Fiona Barton v Ku-ring-gai Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the modification of the conditions of development consent. These modified conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the modified conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 Commissioner: These are appeals pursuant to s 96 and s 121ZK of the Environmental Planning and Assessment Act, 1979 with respect to construction activities carried out at 45 Springdale Road, Killara (the site) pursuant to a consent granted in response to Development Application 1122-03A for substantial additions and alterations; relocation and reconstruction of a tennis court; and relocation and reconstruction of a swimming pool on the site.

2 A number of matters arose when I was at the site on 9 May which caused me to express concern that the works as executed were not reflected on the plans purporting to demonstrate the works as executed (and for which s 96 modification approval was being sought).

3 As a consequence of that, directions were given for the filing of plans reflecting what had actually been done and that which was proposed to be undertaken together with shadow diagrams demonstrating the possible impact on the residence of Mrs Thoo at 43A Springdale Road (being the property immediately to the southwest of the site).

4 I have now been provided with those plans and a number of matters effectively remain for determination - a range of matters having been agreed to during the course of the proceedings for further modification of the conditions. Other alleged non-compliances are not now to be dealt with in these proceedings.

5 The first of those is the fundamental issue of whether or not the present sandstone faced wall at the south-western end of the tennis court should be demolished.

6 The evidence which was given on site in May by Mr Favoretto, an acoustic engineer advising the applicant, was that, if the height of the retaining wall were increased by 600 mm across its south-western end (with returns of 2 m to the same height along each of the long axis walls of the tennis court) there would be no difference in impact from an acoustical perspective at Mrs Thoo's residence than would have been the position if the wall had been constructed at the position originally approved by the council.

7 In Moy v Warringah Council [2004] 133 LGERA 49; 142 A Crim R 577; NSWCCA 77, Sperling J commented that the provisions of s 96 are facultative and beneficial, and are to be construed in a fashion to the benefit of an applicant seeking to take advantage of those provisions.

8 It is clear from this discussion by the Court of Criminal Appeal in Moy that there is in effect a presumption in favour of an applicant (provided there is no sufficient adverse impact on other persons to warrant the discretion not being exercised in such a fashion), and that appropriate ameliorative measures, if required, are imposed on the person seeking the benefit of the section.

9 I am satisfied that an acoustic condition of the nature which has been discussed - requiring subsequent testing at the expense of the applicant; without notice to the applicant and by arrangement by the council - is appropriate.

10 As a consequence, exercising the s 96 discretion consistent with the various appellant tribunals' commentaries on it, it would be appropriate, on acoustic grounds, to permit the wall to remain where it is.

11 I therefore turn to consider the question of whether or not there are either visual or solar impacts that would countervail that position.

12 I am satisfied that, with the now proposed landscaping on the side of the retaining wall along the boundary with Mrs Thoo's property (together with a requirement that that face of the wall also be dressed in sandstone), there will not be a sufficient difference in visual impact to require the wall to be moved to its originally approved location.

13 Similarly, I have been provided with shadow diagrams that show that, for a period of approximately fifty minutes to a little more than an hour at the winter solstice, there would be a minor (at worst) impact on a small portion of the hexagonal windowed area of Mrs Thoo's study.

14 I am therefore satisfied that there is no solar access issue that would cause me not to exercise my s 96 discretion in favour of the applicant.

15 I am satisfied that it would be appropriate to impose a formal standard of noise impact arising from the operations of the tennis court and I am satisfied that that appropriate impact would be at 5 dBA above background when measured in any habitable room of the Thoo residence.

16 The other condition that was contested concerns the question of whether or not there ought to be some restriction on the hours of use of the proposed tennis court.

17 Mr Kondilios, solicitor for the applicant, has submitted that although there is now a more permissive regime applying with respect to s 96 conditions as a consequence of the decision in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, there is still not sufficient nexus between any possible impact of the relocated wall and the use of the tennis court to provide me with a basis upon which to impose the times of use condition (which I had foreshadowed was possible) which proposed condition is a restriction on use of the hours of the tennis court to 7.00am to 8.00pm Monday to Saturday, and 8.00am to 8.00pm on Sundays.

18 When I put to Mr Kondilios that the fact that the tennis court ball catching netting at the Thoo end of the tennis court would require to be operable during the hours of operation of the tennis court provided such a nexus, he submitted that although it might to some degree, such degree was de minimis and would not found such a condition. I do not accept that this is the position.

19 I am satisfied that, during daylight hours, there will be a visual impact from use of the netting on the Thoo residence, particularly given Mrs Thoo's evidence about the extent of the use that she makes of the hexagonally windowed study area for business and other purposes. I am satisfied that there is a nexus and that there is sufficient nexus for me to impose such a condition. I therefore impose the condition as I foreshadowed.

20 A further matter was agitated by Mr Kondilios which arises from the deletion of conditions 42 and 43 of the original consent. They were conditions which required the lodgement of bonds or bank guarantees in total of $12,000 for the purposes of maintaining of landscaping on private property.

21 As I have previously held, in Falcomata v Ku-ring-gai Council (No 2) [2005] 143 LGERA 346; NSWLEC 459, that there is no lawful basis upon which such a condition should be imposed, they are not pressed in these proceedings and are to be deleted.

22 However, Mr Kondilios makes the point that his client has already paid the money to the council and now seeks its return.

23 Whilst there might not be any basis arising out of the now deleted conditions for the council to retain that money, that is a matter which I am satisfied that I have no jurisdiction in this Class of proceedings in the Court to deal with.

24 Had I had such jurisdiction, I would have been minded, as a matter of common justice, to have made the order sought by Mr Kondilios but that is a matter potentially to be dealt with either elsewhere in this Court's jurisdiction or in some other jurisdiction.

25 The consequence of this decision in these two matters is that there will need to be revised consolidated conditions of consent issued and, consequently, the council's Order may be set aside.

26 It would also seem to me that it would be appropriate for me to require that there to be revised plans submitted that will deal with the question of the possible conflict between the underground water recycling tank at the rear of the guest house and the landscaping plan; the question of clearly marking the heights and extent of the increased height to the wall between the Thoo property and the returns along the long axis of the tennis court. Given the history of these matters between the applicant and the council, these revised plans are required so that there cannot in the future be any dispute as to what has been the outcome of these proceedings.

27 I therefore give the following directions. 1. The applicant is to file and serve revised plans reflecting this decision by close of business on Monday the 28 August 2006; 2. The respondent is to file and serve revised, settled consolidated conditions of consent by the close of business on 28 August; 3. Direction 2 is to be in conformity with Practice Direction 2 of 2005, and a separate e-court notification made of the filing of the conditions; 4. The matter is set down for callover on 30 August; and 5. If directions 1 to 3 are complied with, I will make orders in Chambers and vacate the callover.

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