Doueihi v Canterbury City Council & Anor [2003] NSWLEC 267 | Case summary

WEDNESDAY 10 SEPTEMBER 2003 DOUEIHI Applicant v CANTERBURY CITY COUNCIL Respondent Judgment 1 HIS HONOUR: This is an application by Bahigee Doueihi in which she seeks to have a development consent granted by Canterbury Council to her neighbours declared void. She also seeks relief by way of injunction. 2 The applicant is the owner of property known as 88 Minnamorra Avenue, Earlwood. She lives at the premises with members of her family including her children and a grandchild. The applicant's property is developed, with a dwelling of at least two levels which enjoys an outlook to its rear over an area of public reserve. The rear yard of the applicant's property is at a level lower than the level of the dwelling used for day to day living. The applicant also has a verandah at the rear of her dwelling at the level of the day to day living areas. 3 The property to the east of the applicant, number 86, is at a natural ground level higher than the applicant's property. The general fall of the land is from east to west across the properties. There is also a fall from the front to the rear which is from the north to the south. The applicant's concerns are not with the property at number 86 but with her neighbour to the west which is the property known as 90 Minnamorra Avenue, Earlwood. That property is developed with a modest bungalow which appears to be in the order of sixty years of age. It is owned by the second respondent Holiward Pty Ltd, which is the company of Mr and Mrs Sikiotis. Mr and Mrs Sikiotis use the property as a family dwelling. They live there together with a number of children. 4 Number 90 in its natural configuration has a fall from its front boundary to the rear and as I have indicated also falls from east to west. The original bungalow had at its rear and at a level lower than the dwelling an outbuilding which as I understand it included some garage or similar facility. 5 In 2001 a development application was made to the first respondent seeking development consent to make very significant alterations to the dwelling at number 90. The application was accompanied by plans comprising a number of sheets identified by the letters "DA" followed by the number of the plan in the sequence of plans. During the course of consideration of the development application some amendments were made to the plans but they are not of significance for the present. 6 Plan DA5 is entitled "Proposed Site Layout" and indicates the proposed configuration of the main dwelling, together with an indication of development towards the rear of the property. The outline of the rear facilities refers to an "out building under terrace" with a reference to drawing DA12. It also refers to, and has the outline of, a swimming pool which carries the further notation "By Narellan Pools, Engineers Detailed Drawings." 7 The proposed site layout, as one might anticipate, does not describe the levels of the rear facilities although an experienced person reading the plans may be able to discern the relationship between the proposed floor level of the house and the facilities to the rear. I do not think without further plans that a lay person would be able to identify from the proposed site layout the configuration of buildings proposed at the rear of the property. 8 Furthermore, from the site layout plan it would not be possible to identify the relationship of levels of the proposed development to the levels of the existing development on the adjoining property. This is not surprising for a site layout plan is only intended to give an indication of where facilities may be located on the site, not provide details of the precise height and other dimensions of the proposed development. Those facilities are of course ordinarily provided on further detailed plans including sections and elevations. 9 The accompanying sheets of plans with the proposed site layout plan include detailed plans of areas including the lower garage plan, the ground floor plan, the first floor plan and elevations, all of those plans relating to the proposed main building including a roof plan. With respect to the facilities proposed at the rear of the house there is a plan referred to as a games room plan which provides an indication in plan form of the area over which a concrete slab was intended to be provided, that slab forming the facility referred to as the terrace on the proposed site layout plan. The dimensions of the games room are shown with an indication of a concrete slab and the dimensions of the walls to the games room can be identified. 10 That plan also refers to a "pool over", being an indication that in the area shown on the site layout plan as swimming pool, a pool was to be provided. However the facilities necessary to construct the pool, including any retaining walls, structural walls and concourse and other matters are not indicated on the plan. Again this is not surprising for the plan purports to be a plan of the games room and not a plan of the swimming pool. This is consistent with the notation on the site layout plan where it is indicated that detailed engineering drawings of the swimming pool will be provided by the swimming pool supplier. 11 The fact that the games room plan was not intended to provide detail to enable approval of the facilities necessary to construct the pool is confirmed by the information included in the plan described as "fence details." Although fencing details of the fence on the western boundary of the property and the southern boundary facing the reserve are provided on that plan, no indication is given of the fence arrangements on the eastern boundary. It follows in my opinion that the application made to the Council was confined to an application for approval for the main building and the games room as well as the walls surrounding the pool equipment area and shower room and the slabs on top of those rooms. It did not include an application for the pool area or its necessary supporting structures and associated concourse. 12 It may not be plain from the description I have given but the effect of the application was to provide for development on a large proportion of this site. Although there would be an area of landscaping of natural ground at the front of the dwelling, the effect of the plan, apart from the area described as pool, would be to provide a concrete slab over virtually the whole of the rear area of the property. That slab is provided at the floor area of the main dwelling with the consequence that at its highest, which is at the south western corner, it sits 3.4 metres above natural ground level. On top of the slab a fence is proposed, which has a solid masonry element to 900 millimetres followed by an additional steel coated fencing of a further ultimately 900 mm in height. On any view of the matter the games room is a substantial structure standing well above natural ground level. 13 The application was dealt with by the Council pursuant to its Development Control Plan. No 32, titled "Notification Policy." The Council apparently decided that the application fell within Type A notification of clause 3.3 of the control plan. It further determined pursuant to the relevant provision of the plan that it was necessary to provide the neighbour with a description of the proposed development and also a copy of two sheets of the plans. 14 The Council forwarded a letter to the applicant dated 12 July 2001 which referred to the premises 90 Minnamorra Avenue, Earlwood and said: "We have received an application from Holiward Pty Ltd for permission to construct extensions to the existing dwelling a first floor addition, basement garage, a detached outbuilding, pool and retaining walls in the rear yard area and a front fence at these premises, that is nearby to land you own or occupy." 15 The letter indicated that the application and plans could be inspected at the Council. It also indicated that if Mrs Doueihi wished to comment on the application she must write before 23 July 2001. The letter said: "We will carefully consider any comments you make. We are responsible to deal with the application fairly in accordance with the Environmental Planning & Assessment Act. If you make a submission we will advise you of our decision." 16 The letter then continued: "I have enclosed an extract of the plan showing the height and external layout of the proposed building for your information. The plan is not necessarily to scale. If you need more information, please contact me on the number which appears at the top of this page, between 9 am and 11 am Monday to Friday." 17 The plans which accompanied that letter were firstly the ground floor plan, which was identified as DA7, and then a plan referred to as the Notification Plan. The ground floor plan was a plan of the ground floor of the main building this being apparent from the fact that the whole of the allotment is not shown, nor are the whole of the facilities which comprise the games room and terrace and the location of the swimming pool. The plan was not intended to provide information about these "ancillary" facilities. An experienced person reading the plan and making some assumptions about the notations given to the facilities at the rear might be able to identify what was proposed by way of development to the rear of the dwelling. However the plan was not a plan which met the description in the Council's letter. It did not show the height, nor the external layout of the buildings proposed to the rear of the dwelling as the site approaches its rear boundary. The second sheet, the Notification Plan, contained no information from which the size, height and nature of the development at the rear of the property could be ascertained. 18 Evidence has been given by Mrs Doueihi and her son Peter about the steps they took upon receiving the Council's letter. Evidence has also been given of discussions, particularly between Peter Doueihi and Mr Sikiotis. In his affidavit Nicholas Sikiotis gives evidence of discussions which he had with Peter Doueihi shortly after he purchased his property in 2001. At that stage Mr Sikiotis apparently had some ideas as to proposals for the redevelopment of his site which included a proposal for a pool and extension to provide facilities at the rear of the property. He gave evidence of a conversation in which Mr Peter Doueihi said "so what level will the pool and backyard and extension be?" Mr Sikiotis says he replied: "it will all be the same level as the ground floor level inside the house except for the pool which will be sunken by two to three feet. The existing outbuilding will be demolished and replaced by another building. We will excavate to make the new outbuilding at a lower level so it will give you a better view of the park." 19 Mr Sikiotis says that Mr Doueihi responded "that's fine". Mr Sikiotis deposed to a further conversation which occurred in about September 2001 at a time after which the applicant had received the notification from the Council. Mr Sikiotis says the following conversation occurred: "Mr Sikiotis: Peter have you seen our plans? Mr Doueihi Yes, the plans look good. But what will the finish of the brick fence between us be like? Mr Sikiotis: I am very flexible on that. As you know we will be rendering our side of the fence, but I am willing to purchase face brick to match the brick on your house, for your side of the fence. That way it will look uniform with your property. It will cost me more, but that's okay. Mr Doueihi: That sounds great. Can I also ask you to create a series of cavities in the brick fence so it looks even better. I will show you what I mean." 20 Although there is an issue as to the content of these conversations I accept Mr Sikiotis's evidence in relation to them. I am of the view that Mr Sikiotis believed that Mr Doueihi, and accordingly his mother, had an adequate understanding of his proposal. However it is also plain from what has subsequently occurred that this was not the case. Neither Mr Doueihi nor his mother appreciated the nature of the built form which would ultimately occur if the plans proposed were implemented. 21 As I have indicated this is not surprising, for the plan which the Council forwarded with its letter did not contain details of the facilities at the rear of the property and would not have enabled the ordinary person viewing the documents to identify for him or herself the impacts which the development may have on the adjoining property. 22 I appreciate that Mr Sikiotis made an endeavour to inform Mr Doueihi that the rear facilities were proposed to be at the same level as the ground level inside the house, however the conversation which he records suffers from the ambiguity that the description he gave was with reference to the existing outbuilding which was proposed to be demolished. As I have already indicated, that outbuilding was located generally at the ground level and although it extended up with a ridge higher than the proposed terrace level I do not believe that the conversation would have been sufficient for Mr Doueihi to have understood that what was now proposed was that the rear yard of the property where the swimming pool was not to be included was to be effectively covered with a concrete slab and that slab was to provide for the future recreation facilities and effective ground level at the rear of the property. 23 The applicant challenges the consent provided by the Council on a number of grounds. Only two are now of significance. 24 The first challenge puts in issue the parameters of the development consent which was given. Before turning to the grounds of the challenge it is necessary to appreciate that following the receipt of the consent the second respondent has proceeded with construction. The terrace, slab and the rooms underneath it have all been constructed, as has a continuation of that terrace slab and the stairs to provide access from the upper level to the rooms below the terrace. A retaining wall upon the eastern boundary has also been constructed, together with a significant proportion of the concourse area proposed to surround the pool. 25 The applicant submits that the facilities associated with the pool have not been the subject of a development consent and accordingly are illegal. I am satisfied that this submission is correct. I have described the extent of the detail provided in the plans submitted with the development application. In my opinion those plans did not provide for and could not be the foundation for any approval for the swimming pool nor its support and surrounding structures. So much is plain from the detail contained in plan DA12. I do not accept the submission of the respondents that the plan which is labelled "Proposed Site Layout" could support an approval for the swimming pool and its surrounds. My opinion is reinforced by consideration of the elevations. 26 With respect to the application which was approved the applicant submits that she has been denied procedural fairness and accordingly the consent of the Council is void. The submission which is made on her behalf is that the notification given to her by the Council's letter of 12 July 2001 which was accompanied by two sheets from the relevant plans was misleading and accordingly she was deprived of the opportunity which was intended to be afforded to her to properly consider the proposal and make submissions in relation to it. I am satisfied that this submission should also be accepted. 27 Section 79 of the Environmental Planning & Assessment Act provides for the participation of the public in the consideration of development applications for designated development. Those provisions were contained within the statute when it was first enacted. Subsequently there were a number of decisions of this Court which addressed the question of whether, in relation to development which was not designated development, an obligation fell upon the Council to notify those who may be affected by the proposal and provide them with an opportunity to make submissions before a decision was made in relation to the application. See Hornsby Shire Council v Porter (1990) 19 NSWLR 716; 70 LGRA 175; Somerville v Dalby (1990) 69 LGRA 422; Hooper v Lucas (1990) 71 LGRA 27; Nelson v Burwood Municipal Council (1991) 75 LGRA 39. Ultimately the Act was amended to include s 79A which provides as follows: "79A Public participation - advertised development and other notifiable development (1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan. (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application." 28 In the present case it is now accepted by all parties that an obligation fell upon the Council to provide notice to the adjoining owner pursuant to s 79A(2). The essence of the position is that because the Council had adopted a development control plan which provided for notification, and the present application was controlled by that development control plan, notification was required. Furthermore, in the present case the Council exercised its discretion and determined that plans should accompany the notification as provided by clause 3.3 of the development control plan. In those circumstances the Council, having embarked upon a course of notification accompanied by plans, was required to ensure that the plans which it provided did not mislead those who were intended to be in a position to consider them and make submissions to the Council about them. 29 The relevant principles were considered by the Court of Appeal in the context of a public notification of a proposed change in the zoning of land in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. As Rolfe AJA points out in that case, whether or not the notice given by a Council is satisfactory will depend upon the circumstances of each case. However if the notification which the Council gives includes some detail of the proposal and does not confine itself to offering an invitation for a person reading the notice to inspect plans at the Council the obligation falls upon the Council to ensure that the information it gives is relevantly accurate and complete. 30 In the context of a rezoning his Honour said: "problems will arise, ...if the notice, as it must do directs members of the public to where and when all the relevant information may be inspected but by the giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected so that it is unnecessary for them to accept the notice's invitation to inspect the relevant information. In those circumstances the obviously beneficial effect of the giving of the public notice would be defeated by the inaccurate or incomplete information in it, which the Act does not require, so that notices under section 66 and infected by inaccurate or incomplete information, have been held to be misleading and hence invalid. The fact that they comply with the express requirements of the Act does not in my opinion save such notices." 31 His Honour later said: "Misleading' is a word of pejorative connotation, but for present purposes it probably means little more than failing to fully advise members of the public, through the public notification of the draft local environmental plan, or by making a limited statement lulling them into a false sense of security". 32 In the present case the Council set out to provide more than notice that a development application had been received. It believed it necessary to provide further information by way of some of the plans of the proposal. However the plans which it provided were not complete and did not provide any, or any adequate indication to the ordinary person that the facilities which were proposed at the rear of the property would extend to the rear boundary and would provide effectively for a concrete slab and swimming pool to cover the whole of the rear yard of the property and extend above natural ground at the highest point by some 3.4 metres plus 1.8 metres of fencing, half of which would be full masonry. 33 Even with the discussions which I accept took place with the neighbour a notification in the form made was likely to mislead the recipient and failed to provide such a person with sufficient information to ensure that they were not lulled into a false sense of security. The notification given was accordingly misleading. 34 The second respondent submits that the applicant is disentitled to any relief by reason of her delay in bringing the proceedings. The evidence discloses that by early April 2002 Mrs Doueihi and her family were becoming concerned about the works which were occurring on the adjoining property. They went to the Council to complain about the height of the proposal. As it happens the building work at that point had exceeded even the height which had been approved by the Council and accordingly the Council took steps to confine the building work within the plans which had been submitted to it. 35 The evidence discloses that Mrs Doueihi and her family remained concerned about the proposal and quickly sought legal advice from a solicitor. The evidence then discloses that by early May a Freedom of Information application was made in relation to the development. I infer that this was done for the purpose of Mrs Doueihi and her family being informed of the details of the project. The evidence then discloses that by June advice was sought from the Council. Ultimately further advice was obtained from the Council on 29 July 2002 and these proceedings were commenced on 30 July 2002. 36 Notwithstanding the fact that advice had been sought from the solicitor no letter was written to the second respondent indicating that there was a concern in relation to the works and there was no suggestion made until 30 July that proceedings may be taken in the court to seek to restrain the development activities. In the meantime the second respondent continued with the building work. 37 The evidence indicates that to date a total of approximately $141,000 has been expended by Mr Sikiotis on the development. This sum excludes the work which he and his family have been able to do. Mr Sikiotis is a qualified engineer and has contributed, together with other members of his family, significantly of his own time which would be a cost additional to the figure of $141,000. The evidence discloses that of that $141,000 approximately $110,000 has been spent since early April. When the proceedings were commenced I understand work on the site stopped. 38 It is apparent that Mrs Doueihi and her family became concerned and took action by visiting the Council when they began to form a true appreciation of the proposed height of the development at the rear of the adjoining property. At that point in time of course they would not have known, and would have been unable to identify, what rights if any they may have had in relation to the matter. However upon visiting the Council they were shown the plans and were then able to appreciate the height of the proposal. They of course were not at that point able to appreciate the steps which the Council may have taken before granting the approval and no doubt it was for that reason that the Freedom of Information application was made. 39 Nevertheless they expressed concern to the neighbour about the project. Notwithstanding that concern, discussions did not follow which would have enabled an identification of any problems before further significant works were undertaken. Although this is a case where it is plain the applicant could have moved more expeditiously and, where properly advised, at the very least a solicitor's letter warning of problems might have issued earlier, I do not think the applicant is disentitled to relief because of her delay. However those circumstances must be reflected in any relief which the court may grant. 40 The Environmental Planning & Assessment Act provides standing to any person to bring proceedings. The relevant standing is provided by s 123 of the Act which has been a subject of judicial consideration on a number of occasions. The court may make orders pursuant to s 124 which has also been the subject of consideration on many occasions, see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 361; ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177. 41 Because of a concern that the public interest may not be effectively served by the intervention of the court in all cases, the Land and Environment Court Act was amended to include s 25E which imposes a duty on the court to consider making an order for the conditional validity of a development consent instead of declaring it invalid be granted in all cases or whether some other course should be followed. 42 In the present case it is necessary to consider those provisions in determining whether or not any relief should be granted. It is also important in this case to weigh in the balance a number of factors which should inform the exercise of the court's discretion. Various of those factors have been addressed by counsel for each party. I should also record that I have been informed of discussions between the parties about modifications which might be made to the proposed development, which without causing undue hardship to the second respondent would ameliorate, in some respects, the concerns of the applicant. 43 Before briefly considering those matters I should indicate that I have at the request of the parties had a view of the site. The view has enabled me to understand the evidence which has been provided by the plans and photographs. It shows the impact of this proposal upon the neighbouring property. 44 I have already described the physical dimensions and facilities which are being constructed on the property. I have also received evidence from Mr Sam Papadoniou, the relevant development assessment officer of the Council. He described the process he undertook when considering and approving under delegated authority this application. He of course made that decision without the benefit of the views of the present applicant and upon the assumption that there had been no objection made to the proposal. In those circumstances it is not surprising that the application was approved, notwithstanding the fact that when the plans are properly understood there is a real and significant impact upon the amenity of the applicant's property. That impact is provided by intrusion into the privacy of the living areas of number 88, as absolute overlooking from the proposed structure to the rear yard of number 88 and an intrusion of significant masonry facilities proposed to be used for outdoor recreation into the view of the sky from the rear yard of number 88 and also into the view of the adjoining reserve and horizon beyond from the living area of number 88. 45 The matters relevant to the exercise of discretion of greater significance are the fact that there were discussions between these parties before the development application was approved by the Council. I have indicated my view that a genuine endeavour was made by Mr Sikiotis to inform his neighbour of his proposal. I also accept that the neighbours did not form an adequate understanding of what was proposed and did not appreciate the extent to which their amenity would be affected. The position was not assisted by the Council's failure to provide an adequate plan from which the true impact of the development could be understood. I accept Mr Doueihi's evidence that when he saw the plan which he received he made the assumption that the outbuilding and pool would be located at a level proximate to natural ground and did not contemplate that the extensive concrete slab and other facilities would be provided at a level so far above the ground level of the rear of his mother's property. 46 It is also important to have regard to the money which has been spent by the second respondent pursuing the development consent which it believed to be valid. I accept that the second respondent honestly believed that it was entitled through Mr and Mrs Sikiotis to pursue the development consent which had been communicated to it by the Council. 47 As I have indicated it is appropriate to have regard to the delay in the commencement of the proceedings. There is an explanation for a significant part of that delay and it was obviously prudent for the applicant to wait until she had received effective legal advice before commencing the proceedings. However it would have been obvious to her that building work was continuing and at the very least in my opinion her solicitor should have written to the second respondent warning it that there may be proceedings commenced and asking that the building work at least be suspended until the matter could be carefully examined and a decision made as to whether or not those proceedings would be commenced. 48 The second respondent has offered a concession through evidence from a landscape architect which involves the provision of some planting in pots adjacent to the proposed swimming pool and on the boundary between the two properties. It is suggested that this would provide an adequate screen to protect the amenity of the adjoining property. I am not persuaded that this would be an adequate screen, and having regard to the matters that I have adverted to I believe that more should be attempted to ameliorate the impacts of the development upon the adjoining property. 49 I indicate that at this stage of the proceedings I propose merely to provide a summary of the elements which need to be considered. The parties have no objection to my recording the fact that discussions have taken place between them which involve the alteration of the level of the proposed pool and its configuration relative to the boundary to endeavour to minimise the impact which the pool will have upon the adjoining property. It would seem that these changes could be made at minimal cost to the second respondent and would have a potentially significant benefit for the adjoining property. It is also suggested that as part of those alterations the stair providing access to the facilities underneath the terrace slab could be reoriented to minimise the impacts from people accessing that part of the site. 50 If changes consistent with those suggested were undertaken this would significantly ameliorate the impact on the adjoining property. As far as the terrace itself is concerned in its present form as proposed to be used it will undoubtedly impact upon the amenity of number 88. However it is a substantial structure which I am satisfied was constructed after the time upon which the applicant became aware of the true nature of the proposal and before these proceedings were commenced. In my opinion to require any significant alteration in that part of the facilities on this site would in the circumstances be inappropriate, and accordingly any solution which can be found in my opinion would not require any invasion of the structural integrity of the slab. Accordingly, to the extent that modifications should be provided, I do not believe a modification involving a change in the location or dimensions of the slab is in the circumstances necessary. 51 However the way in which the slab relates to the pool and any landscaping provided on it are significant. The applicant has suggested that it might be given a skillion roof so that no-one can walk upon it. I do not think in the circumstances this would be reasonable. Not only would it look inappropriate, it would deprive the applicants of the benefit of an outdoor area which because this is a family home is a natural and expected amenity, even though if the application was considered afresh the terrace would have been provided at a lower level with less intrusion upon the amenity of the neighbouring property. That has not occurred and accordingly the slab needs now to be treated in a way which minimises, to the extent that that is possible, the intrusion into the neighbour's privacy. Perhaps that can be achieved by a planting arrangement along the edge of the slab between the slab and the pool with the pool being reduced to a lower level so that to a degree the privacy of those using the slab and the pool is protected from number 88 and number 88 is protected from those using the slab and the pool. 52 The evidence before me does not enable me to reach a complete conclusion in relation to these matters. In those circumstances, rather than make any orders today, I believe it appropriate for me to adjourn the matter to enable the parties to consider between themselves the form of any order. If they are unable to agree then an opportunity should be provided for the parties to bring evidence which will enable me to make an appropriate decision in the matter.

Doueihi v Canterbury City Council & Anor

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (4)

Cited By (1)