These proceedings concern an appeal by Mr Demian against the decision by Willoughby Council ("the Council") to refuse to issue a building certificate for a rear deck and front boundary fence at 20 Weemala Road, Northbridge. The appeal is lodged pursuant to s 149F of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which provides at (3):
"(3) On hearing the appeal, the Court 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."
On 14 December 2017, with both parties' consent, I made orders pursuant to s149F(3)(a) upholding the appeal and directing the issue of a building certificate, with the building certificate directed to be issued upon the satisfaction of the Council that certain final measures to achieve compliance with the BCA have been undertaken. These are the reasons for those orders.
The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 ("Court Act"), together with a conciliation held in two separate appeals with respect to the same property and works, the first by Mr Demian against the refusal by the Council of a modification application (proceedings number 2016/374202) ("modification appeal") and the second by Mrs Demian against an order issued concerning the structures (proceedings number 2016/374203) ("order appeal").
Both the modification appeal and the order appeal were resolved by an agreement made under s 34(3) of the LEC Act, and an agreement was also reached as to what works would be required to be carried out by Mr Demian in order for a building certificate to issue. So that orders could be made for that work to be carried out, the conciliation was terminated pursuant to s 34(4) and the parties consented to me disposing of the proceedings.
Subsequently, on 17 May 2017, I made orders by consent as to the information to be provided and the schedule of work to be carried out. The information included a letter from an engineer to certify that the excavation near the rear western boundary fence has not undermined the structural capacity of the fence, and a stormwater management plan.
The works to be carried out were as follows:
1. The upper level rear deck (RL (AHD) 58.30) is to be replaced with soft
landscaping as shown on Drawing No.11209-03 dated 11 April 2017 prepared by David Scobie Architects Ply Ltd;
2. All portions of the rear deck are to be setback a rninirnum of 600rnrn from the south-western boundary as shown generally in red on the photograph contained within Appendix 3 of the Joint Town Planning Report dated May 2017. The setback area is to be planted with shrubs and ground cover to a maximum height of 1.5rn;
3. The rear area of rear deck located beyond the rear (north-western) line of the pool and the rear boundary is to be deleted and replaced with soft landscaping in the area shown in red on the photograph contained within Appendix 3 of the Joint Town Planning Report dated May 2017;
4. Privacy screen fencing along the north-eastern boundary is to be provided for the full length of the pool and pool enclosure in accordance with the area marked in red on Annexure 7 of the Joint Town Planning Report dated May 2017;
5. A 1.675 metre high by 2 metre long privacy fence perpendicular to the fence at the southern end of the rear deck. That screen could be either fixed timber fencing to rnatch the treatment and spacing of the existing timber
Screening below, or a fixed translucent glazed screen.
6. The western boundary fencing panel closest to the rear north western balcony of 20 Weemala Road (3 bays south of the new rear timber deck) is to be increased in height by 7 equally and equivalentlysized and spaced slats, having the same general colours and appearance as the existing fence materials. The applicant is to seek approval in writing from the owner(s) of 18 Weemala Rd to construct these new slats on top of the existing boundary fence. In the event that approval is not obtained within 30 days, the applicant is to erect the panels solely on the applicant's property but must achieve the same height and spacing and general visual appearance, insofar as is reasonably possible. The Respondent is to advise the applicant within 14 days of the date of these orders if this requirement need not be complied with, in which case the works are not to be carried out.
7. Within 30 days of the granting of consent by the Land & Environment Court to DA-2014/78/C, external stairs leading to front door or rear yard decks are to be upgraded to meet the requirements of the NCC's Building Code of AustraliaVolume Two (particularly Part 3.9), in respect of balustrades, treads, dimensions, non-slip finishes and handrails. The treatments and works agreed to in the joint report of Bruce Gaal and Steven Saad are to be carried out. To the extent that any further balustrades are required adjacent to the front stairs, those balustrades are to be clear glass;
8. Within 60 days of the granting of consent by the Land & Environment Court to DA-2014/78/C, the doors to the cupboard provided to the services/meter box at front boundary shall be hung or fitted in such a manner that they will not open over the footway or public place. The finish, colour and treatment of the replacement doors are to generally match the existing garage door;
9. The central component of the front masonry fence shall be reduced in height by 1 course. The top of the central fence is to be capped with timber to generally match the timber colour of the existing garage door;
10. Three panels of timber each 750mm wide to be applied to the remaining section of the front fence. These shall be applied in an evenly spaced manner to the full height of the fence;
11. The existing landscaping in front of the fence is to be enhanced with landscaping in between the panels to achieve a height of 1 metre. Such details to be shown in the amended landscape plan required by DA-2014/78/C. The applicant is to seek approval under the Roads Act prior to planting. In the event of the Roads Act application is refused, the proposed landscaping on the road reserve is to be replaced with climbers as specified in the landscape plan.
The proceedings were adjourned to 25 September 2017, and then to 30 October 2017, to enable that work to be carried out. A further adjournment was then allowed to 14 December 2017 following a problem being identified with electrical cable interfering with the agreed works. The Council, having inspected that work on 6 October and 6 December 2017, now agrees to the issue of the building certificate subject to the front steps being brought into final compliance with the Building Code of Australia ("BCA"). The measures required to do so involve using fill to adjust the height of the first riser, and certifying the slip resistance of the tread. As a result of the Council agreeing to a direction for the issue of the building certificate, a hearing on consent orders was held on 14 December 2017.
[2]
The structures
The building certificate application seeks certification for a split level rear timber deck, and a 1700mm to 2200mm high concrete front fence with sandstone cladding. In doing so, it includes the masonry front fence, front pillars and meter box, front yard entry steps, and timber deck and rear stairs. These structures were alleged by the Council to have been built contrary to the development consent granted for the property, and were therefore the subject of the order issued by the Council under s 121B of the EPA Act that came before the Court in the order appeal.
[3]
The site and locality
The site is legally described as Lot 24 in DP13503 and is known as 20 Weemala Road, Northbridge. The site is situated on the north western side of Weemala Road, and the land slopes steeply up from the south eastern frontage to the north western rear boundary. The site is a trapezium shaped allotment with an area of 828.34m2 and frontage of 17.07m, rear boundary of 10.365m and side boundaries of 62.965m and 59.18m. The site contains a recently constructed two storey dwelling, sub-floor garage/storeroom and swimming pool in the rear yard.
The locality is characterised by a mix of one and two-storey residential dwellings. There is a range of street presentations in the adjoining development, from some that maintain generous soft landscaping with minimal structures in the front setback areas to others with large retaining walls or tall front fences with landscaping interspersed. Similarly, there is a mix of dwelling types from commanding two or three storey contemporary rendered houses that are significant in the streetscape to modest single storey dwelling houses of older construction.
[4]
The planning controls
The site is located in the R2 low density residential zone under the Willoughby Local Environmental Plan 2012 ("WLEP 2012"). The objectives are the zone, found in the land use table, are:
"• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To accommodate development that is compatible with the scale and character of the surrounding residential development.
• To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.
• To retain the heritage values of particular localities and places.
• To encourage self sufficiency with respect to energy and food supply."
The Willoughby Development Control Plan 2006 ("WDCP 2006") applies to the site, with relevant provisions in Parts D.1.8, D.1.7, D.1.11 and C.12. Specifically, clause D.1.8.3 requires 50% of the front yard to have natural landscaping.
Part D.1.7 of the WDCP 2006 sets out the controls concerning building envelopes and setbacks, with the following objectives and performance criteria:
"D.1.7.1 - Objectives
1. To ensure the siting of buildings provides adequate separation for the amenity of residents and adjoining properties.
2. To provide adequate space for landscaping.
3. To achieve equitable access to sunlight and views.
4. To minimise overshadowing of adjoining properties.
5. To provide setbacks that reinforce the established streetscape pattern and allow for landscaping and open space to complement the streetscape.
6. To minimise excessive bulk and scale.
D.1.7.2 - Performance Criteria
1. Setbacks will progressively increase as the height of the external wall increases to reduce bulk and overshadowing.
2. New buildings or alterations to existing buildings should reinforce the streetscape character by ensuring the front setback or building line is consistent with that of adjoining development.
3. Variation to the front setback may be permitted where the desired future streetscape character differs significantly from existing or where a greater setback can be used to create streetscape variety.
4. On corner sites, the setback of the dwelling from the secondary street frontage will provide a transition between the proposed and existing dwellings which complement the streetscape.
5. Side and rear setbacks will be modulated to avoid the appearance of unduly massive or long walls, side and rear setbacks will be stepped or walls will be articulated by projecting or recessing window elements.
6. Side and rear setbacks may need to be increased in order to maintain privacy and solar access to adjoining properties.
7. The setback of garages and carports will be located having regard to the location of similar structures within the street, particularly in the case of side access driveways where they are characteristic of the streetscape.
8. For development in the E4 zone, separation between buildings is to be provided in order to preserve or create significant views from the public domain and provide potential space for substantial landscaping."
Part D.1.11 of the WDCP 2006 concerns privacy and provides:
"D.1.11.1 - Objectives
1. To protect the visual and acoustic privacy of residents and residents of adjoining properties in relation to the use of private open space areas.
D.1.11.2 - Performance Criteria
1. The privacy needs of both residents and neighbours should be considered in the siting of dwellings and the location of windows and private open spaces.
2. Council acknowledges that complete protection of privacy between properties may not always be possible. Developers will be required to provide a reasonable level of privacy to the residents of existing dwellings. It may be necessary for supplementary privacy protection to be undertaken by existing residents to secure their own required level of privacy.
3. A greater emphasis will be placed on maintaining visual privacy to living areas and private open spaces than for non living rooms including bedrooms, stairways and bathrooms. Impact on privacy by overlooking from bedroom windows is not as significant a concern, as is overlooking from living areas or other intensely used areas.
4. Effective siting, layout and location of windows and balconies to avoid direct overlooking are preferred over the use of screening devices, high windowsills or translucent glazing. Where these are used they should be integrated into the building design and have minimal negative effect on the amenity of residents or neighbours.
The privacy needs of both residents and neighbours can be achieved by:
i) ensuring that windows and balconies, in particular to living areas, do not face directly onto windows and balconies to living areas or private open space of adjacent dwellings;
ii) splaying location of windows to minimise direct views;
iii) locating windows so as to not be directly opposite one another;
iv) using level changes to minimise direct views;
v) use of increased windowsill heights or translucent glazing;
vi) avoiding use of elevated terraces or decks that overlook adjoining property;
vii) use of light weight privacy screening or dense landscaping;
viii) increasing building setbacks from the boundary;
ix) use of planter boxes on elevated terraces."
Part C.12 concerns fencing and the desired streetscape character for the fencing. It provides the following performance criteria:
"A. Fences and walls will be designed to:
i) provide visual interest to the streetscape;
ii) enable surveillance of the street for security from dwellings;
iii) form part of the architectural and landscaping concept for the site;
iv) be compatible with the height and type of other front fencing in the streetscape;
v) define and provide for privacy of open space areas between the dwellings and public areas;
vi) maintain significant views from the public domain; and
vii) be of good quality using low maintenance materials."
The controls within Part C.12 for the fencing include the following:
"1. Where front fencing is provided, it should be constructed of materials compatible with the proposed development and consistent with other fences in the streetscape i.e. height, material and detail.
2. The height of front fencing to the street should be kept to a minimum, not exceeding 1.1m high if solid, or 1.6m with the use of open/transparent picket or iron palisade fencing with screen planting behind. Post or piers may be permitted to exceed this height.
3. Solid fences and walls located at the street alignment, up to a maximum 1.8m high, are limited to where:
i) the dwelling is affected by excessive traffic volumes and noise from the street (6000 vehicles/day or 60dBA); or
ii) the fence encloses the main private open space of the dwelling with length limited to 75% of the frontage; or
iii) fencing incorporates openings or consists of vegetation with minimum 50% transparency."
Clause D.1.2.3 of the WDCP 2006 sets out the desired character for Northbridge, including the requirement to maintain "a consistent front building alignment of moderately deep setbacks with informally front landscaped gardens to the street" and "a streetscape of low masonry or timber palisade fencing up to 1.2m in height to the street."
The BCA Volume 2 Part 3-9 also sets out standards regarding stairways, particularly with respect to tread/nosing slip resistance, gaps, tread height and balustrading.
[5]
The Evidence
On 17 May 2017 I attended and viewed the site and the immediate locality, including observing the site from the adjoining neighbours at 18 and 22 Weemala Road. A number of local residents attended the site view and gave evidence or made submissions. The most affected residents, Mr and Mrs Davis, are concerned about visual privacy and in particular, overlooking from the rear deck of the subject premises to their living area and private open space. They were also concerned that privacy screening may cause a loss of view from their tennis court. The other adjoining neighbours, at 22 Weemala Road, were concerned about overlooking into their swimming pool.
A statement of Mr Fielding was tendered in evidence, which demonstrates that based on his inspection the works required by the consent orders were carried out. Mr Fielding, who is a qualified health and building surveyer and development assessment officer employed by Willoughby City Council, also provides his opinion that subject to the concerns regarding compliance of the front stairs with the BCA, it is acceptable for a building certificate to be issued.
[6]
The resolution of the contentions
The Council agrees that each of the contentions raised in its Statement of Facts and Contentions filed on 25 January 2016 have been addressed. Those contentions can be summarised as follows:
There is insufficient landscaping or pervious area to result in satisfactory amenity and compliance with the relevant controls.
The rear deck setbacks are inadequate.
There is inadequate protection of the visual and acoustic privacy of adjoining properties.
The boundary fence is incompatible with the streetscape of the locality.
The doors to the cupboard housing the services encroach onto the road reserve.
The stairways at the front and rear fail to meet the requirements of the Building Code of Australia Volume 2 Part 3-9.
The role of the Court in considering the appeal is to assess and determine the application for the building certificate on its merits based on the evidence in the proceedings and the issues raised by the Council in the statement of facts and contentions. In doing so, the Court re-exercises the functions of the Council in determining the building certificate application but has the additional powers conferred by s 149F(3) referred to above. In exercising those functions in the context of a building certificate application, the Court has variously referred to it being a "hypothetical or notional development application" (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276).
In exercising the functions of the consent authority and considering the application as a notional development application, I am similarly satisfied that each of the contentions raised by the Council have been dealt with as outlined below.
First, the landscaping contention is resolved by the addition of landscaping in the rear yard in an area that would otherwise have been impervious, and by the introduction of shrubs along the boundary and in the rear yard. Landscaping has also been introduced at the road frontage, and approval under the Roads Act 1993 has been provided by the Council for that landscaping.
Second, the privacy issue arising from the contention regarding inadequate setbacks has been resolved by plantings to prevent overlooking. This also addresses, in part, the third contention concerning the protection of visual and acoustic privacy. The third contention is also resolved also by a privacy screen perpendicular to the fence, privacy screen fencing along the north-eastern boundary, and 7 slats being added to one of the fencing panels on the property to the west. That fencing panel is identified in item 6 in the schedule of work quoted above (referred to in paragraph 6 of this judgment). The Council agrees that these measures are adequate to protect the visual privacy of the adjoining neighbours. I accept that they are adequate based on my own observations of what part of the adjoining properties could be seen from the rear deck, and I am satisfied based on those observations that these measures will protect visual privacy.
I note, for completeness, that the parties' legal representatives noted that subsequent to the site view in May some additional screening panels have been erected on top of the western fencing located on the land of the adjoining neighbours at 18 Weemala Road, without development consent. That work was not carried out by Mr or Mrs Demian. Insofar as that screening exceeds what was described in item 6 in the schedule of work (referred to in paragraph 6 of this judgment) above, the work does not form part of any agreement between the parties concerning the issues in the present proceedings. Further, that work does not appear to deal with any issue raised in these proceedings (in that I am satisfied that the measures described in [25] are adequate to protect visual privacy) and it is not the subject of the building certificate.
Third, the contention regarding fencing and streetscape character have been resolved through the changed design of the fence so that there is timber features, timber capping, and a reduced height of the central section, with landscaping at the front of the fence to soften the bulk associated with the sandstone wall. I accept that this design achieves the objective to be "compatible with the height and type of other front fencing in the streetscape" whilst also maintaining consistency with the dwelling located on the site.
Fourth, the issue regarding encroachment has resolved as the doors to the cupboard housing the services no longer encroach on the road reserve.
Fifth, the evidence of Mr Fielding through the statement tendered in evidence is that the BCA compliance issue has been resolved, except with respect to the front steps. It was communicated to me through Mr Whealy and Mr Messenger, the parties' legal representatives, that two issues regarding the front steps remain. As identified above, those issues relate to an adjustment of the height of the first riser, and certifying that the tread has a non-slip finish. The power under s149F(3) is sufficiently broad to allow me to direct the Council to issue a building certificate once it is satisfied that those matters have been addressed.
Finally, the contention regarding insufficient information has been resolved through more detailed plans and the certification regarding the structural adequacy of the rear deck.
There being no reason, therefore, that the application should be refused, in considering the "notional development application" I am satisfied that the masonry front fence, pillars and meter box, front yard entry steps, and timber deck and rear stairs are compatible with the dwelling on the site, achieve the objectives of the zone and of the relevant controls above, and do not cause an unacceptable impact. They are compatible with "the scale and character of the surrounding residential development", and retain residential amenity, "including views, solar access, aural and visual privacy, and landscape quality."
I am therefore satisfied that it is appropriate to direct the issue of the building certificate upon the satisfaction of the Council that the final measures to achieve compliance of the front stairs with the BCA have been undertaken.
The Court orders that:
1. The Appeal is upheld.
2. Pursuant to section 149F(3) of the Environmental Planning and Assessment Act 1979, the Court directs the respondent to issue a building certificate in the form annexed and marked A, upon the satisfaction of the respondent that the requirements of the Building Code of Australia have been met with respect to the front steps of the subject property at 20 Weemala Road, Northbridge.
Commissioner Gray
Annexure A (2) (2) (66.6 KB, pdf)
Annexure A Part 1 (1.86 MB, pdf)
Annexure A Part 2 (2.02 MB, pdf)
Annexure A Part 3 (72.3 KB, pdf)
[7]
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Decision last updated: 15 December 2017