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[2010] NSWLEC 1088
Land and Environment Court (NSW)
2010-04-16
Original judgment source is linked above.
CITATION : Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088
APPLICANTS Gary Felthouse PARTIES : Nora Felthouse
RESPONDENT Ashfield Council
KEY ISSUES: SECTION 121B ORDER :- Building certificate unauthorised building works
Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Ashfield Local Environmental Plan 1995
CASES CITED: Ireland v Cessnock City Council (1999) 110 LGERA 311
APPLICANTS Dr S Berveling, barrister Instructed by LEGAL REPRESENTATIVES: Mr D Mitchelmore CP White & Sons RESPONDENT Mr K Webber, solicitor Wilshire Webb Staunton Beattie Lawyers
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10933 of 2009 Felthouse & Anor v Ashfield Council 10934 of 2009 Felthouse & Anor v Ashfield Council This determination was given extemporaneously and has been edited prior to publication
JUDGMENT 1 These are two separate but related appeals in respect of premises at 5 Farleigh Street, Ashfield (the subject property). In matter 10933 of 2009 the applicants, Mr Gary Felthouse and Mrs Nora Felthouse, appeal under s 149F of the Environmental Planning and Assessment Act (the Act) against a refusal by Ashfield Council (the Council) to issue a building certificate. Matter 10934 of 2009 is an appeal under s 121ZK of the Act against orders issued pursuant to s 121B of the Act on 17 November 2009 in respect of the subject property. 2 The proceedings were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 8 February 2010 which commenced on site. Through the course of further discussions between the parties agreement has been reached on a number of the issues in dispute. There remained one issue in dispute, and there being no agreement as to the terms of a decision such that either of the proceedings could be disposed of under s 34(3) of the Court Act, the conciliation conference was terminated. The parties agreed to my disposing of the proceedings and consented to the admission of evidence from the conciliation conference. 3 A hearing was held on 16 April 2010 at which further evidence was tendered and oral evidence was given by Mr Greg Patch and Mr Robert Moore, both architects and heritage consultants, on behalf of the applicants and the Council respectively. Background 4 The subject property is a two-storey building located near the corner of Farleigh Street and Clissold Street, Ashfield. The house was erected in 1884, and by 1890 was known as "Darlington Villa". In an appendix to a Statement of Heritage Impact provided by Mr Patch on behalf of the applicants, Mr Gary Felthouse outlined the history of the works done to the property after he and his wife purchased it in 1992/1993. It had previously been rented to a group of students and had consisted of some twenty rooms and corridors. During the 1980s they undertook repairs to the roof, plumbing, electrical work, ceilings and garden. In the late 1990s they demolished and rebuilt the front veranda as it was; rebuilt the rear and side verandas; and undertook work in the basement which had regularly flooded. In the late 1990s/early 2000s they removed and replaced the slate roof, replaced the framing and floor in the attic, installed gyprock walls and ceiling, and installed a cedar joinery staircase in place of a pull down attic stair. In the early 2000s they replaced glass in interior windows, added skylights to the south face of the roof, added an interior corridor to the first floor veranda, and renovated the bathrooms. In 2005/2006 they relocated the kitchen and replaced floorboards. The swimming pool at the rear of the property was constructed in the early 2000s. 5 The works undertaken to the house by the applicants are summarised in the joint report by Mr Patch and Mr Moore in the following terms: - Alteration of the main roof, by the extension of its main ridge and side wall planes, to a new western gable end wall with windows, replacing the former hipped end of this main roof;
A small plunge-style swimming pool has been created within the rear garden, with glass safety fence, and throughout the house, a comprehensive suite of works has been undertaken to present the house with emphasis of its original Victorian design elements, with modern paints, finishes and colours. A modern "old style" kitchen has been installed, and the bathrooms similarly renovated in the "old fashioned" manner popularly employed in such houses. 6 It was common ground that development consent was not sought or obtained for the works undertaken by the applicants to the property other than for the construction of the swimming pool. 7 In September 2009 the applicants decided to put the property on the market and applied to the Council for a building certificate. Following an inspection by Council officers, the Council issued Notices of Intention to Serve an Order in relation to the swimming pool and surrounding area and the dwelling house. The Council Orders 8 The Orders issued by the Council on 17 November 2009 were in two parts, one relating to the swimming pool and associated works at the rear of the property, and the other relating to the dwelling house. The Orders relating to the swimming pool required: Order No. 1
Planning controls 11 The site is zoned 2(a) Residential under the Ashfield Local Environmental Plan 1995 and is identified as a heritage item in schedule 7 of the LEP. Clause 32 of the LEP provides: 32 Protection of heritage items, heritage conservation areas and relics
(1) The following development may be carried out only with development consent: (a) demolishing, defacing, damaging or moving a heritage item, or a building, work, relic or place within a heritage conservation area, or (b) altering a heritage item, or a building, work, relic or place within a heritage conservation area by making structural changes to its exterior, or (c) altering a heritage item, or a building, work, relic or place within a heritage conservation area by making non-structural changes to the detail, fabric, finish, or appearance of its exterior, except changes resulting from any maintenance necessary for its on-going protective care which does not adversely affect its heritage significance, or (d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic, or (e) erecting a structure on, or subdividing land on which a heritage item is located or which is within a heritage conservation area. (2) Development consent is not required by this clause: (a) if the Council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or the heritage conservation area, or (b) for the maintenance of, or emergency work to, a utility installation. (3) When determining a development application required by this clause, the Council must assess the heritage significance of the heritage item or heritage conservation area, and must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area. (4) The Council may decline to grant consent to a development application with respect to the carrying out of development within a heritage conservation area or on a heritage item until the Council has considered a conservation plan or heritage impact report that: (a) assesses the conservation and heritage significance of that item or building, work, relic or place within a heritage conservation area and describes its heritage significance as part of the environmental heritage of the local government area of Ashfield, and (b) sets out any steps to be taken to mitigate any likely adverse impact on the heritage significance of that item, or building, work, relic or place within a heritage conservation area. (5) When determining a development application for land within a heritage conservation area, the Council must make an assessment of: (a) the relationship of the proposed development to the general pattern of development within the conservation area, and (b) the pitch and form of the roof, if any, and (c) the style, size, proportion and position of the openings for windows or doors, if any, and (d) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of any building or work are compatible with those of the materials used within the heritage conservation area, and (e) the style, size, proportion, position and layout of paths, walls, fences, gates, garden beds and plantings. Evidence 12 During the conciliation conference the parties agreed on a number of agreed works that would satisfy the Council as to compliance with the Orders. Those works included installing a new retaining wall on the rear boundary, investigating an alternative lock and hinges for the veranda windows, increasing the height of balustrading on the western end of the veranda, providing additional safety fencing adjacent to the pool, fixing the lock and hinge to the pool safety gate, and removing external tap fixtures near the pool gate. There were three issues that required further consideration, being the provision of a contrasting edge to the tile floor and the basement laundry area to avoid a trip hazard and providing a solution for the attic stairs and basement stairs to address the lower head height. Those issues were the subject of a report by AE & D, which provided an Alternative Solution to verify compliance with the Performance Requirements of the Building Code of Australia. Those requirements included the provision of padding and lighting for the stairs, and a contrasting non-slip strip to the edge of the tiles in the laundry and the limitation of use of the attic room to storage only. 13 Evidence as to structural adequacy was provided in the form of a report by Taylor Civil & Structural, Consulting Engineers. This report addressed the following issues relating to the house. - Curved timber staircase from first floor to attic. - Walls and associated framing associated with the attic framing.
Our investigations to date have revealed no indication of any structural inadequacy associated with any of the listed elements.
We have concluded that some of the elements are structurally adequate.
Other elements require further investigation - which we have been commissioned to do.
On conclusion of this investigation, I anticipate that we will find either:
That all element are structurally adequate - and no further works will be required, or
That some minor rectifications will be required - and that it will be a relatively simple matter to complete these.
B Issues of retaining and drainage at the rear of the property
Council's statements that "the raising of ground levels … has led to the surface waters from the site being dispersed onto the adjoining premises at 22 Clissold Street … causing a nuisance" do not appear to be correct. Rather, the drainage alterations carried out have reduced the natural flow of stormwater into the property at No 22.
The remaining overland flow does not contravene Council's Stormwater Management Code.
The issue of "retaining" is a minor one - which can be addressed by either maintenance, or construction of a small retaining wall. 15 The most significant issue in dispute between the parties related to the requirement in the Orders to reinstate the premises. Evidence as to the impact of the works done to the dwelling on its heritage significance was provided by Mr Patch on behalf of the applicants and by Mr Moore on behalf of the Council. Mr Patch provided a Statement of Heritage Impact (December 2009), and he and Mr Moore provided a written joint report following a visit to the site. 16 In their joint report the experts agreed that the 1991-1992 Ashfield Heritage Study described the property as "intact", and as "a stately filigree house unusually sited, thereby presenting a deceptively narrow appearance yet being very commodious". It was also described as a "graphic example of the impact of planting on architecture" and held to be of a "rare" aesthetic significance, with "associative" historical value and "associative" social value. The experts agreed that the house has local value in the historical and representative sense. 17 While the experts were largely in agreement as to what the heritage significance of the house was before the works were undertaken by the applicants, they differed as to the acceptability of those works and their impact on the heritage value of the house. 18 Mr Patch noted in his report that the works involved substantial change to the building generally relate to the adaptation of the rear of the house, and commented that the utilisation of the sub floor area and roof space had allowed an expansion in the useable floor space without, in his terms, an inordinate change to the bulk of the building. Mr Patch commented: While the works have been extensive the overall impact on the integrity of the building has been positive - both in terms of the conservation of the fabric and retention, reconstruction and reintroduction of elements. Stylistically the introduced elements and additions are of a nature and detail that is sympathetic and compatible with the era of house. 19 Mr Moore agreed that the work in the front rooms of the house had generally reinstated those rooms closer to their former condition and as such had not adversely affected their heritage value. However, he did not agree that the works at the rear had been positive in their impact on integrity or sympathetic and compatible. Mr Moore was of the opinion that the work to the main roof, the side entrance porch and the rear verandas had had a detailed detrimental impact on the heritage values of the house by confusing and diminishing important surviving original characteristics and elements of the design of the house. Mr Moore was of the opinion that the extension of the main roof in order to access the attic inserted into the main roof could have been avoided, and that the enlargement of the basement and the side terrace had changed the architectural design and typological character of the house, reducing its heritage significance as a representative example of its kind. Mr Moore disagreed with Mr Patch's conclusion that the works that had been undertaken are generally appropriate and sympathetic to the house, and was of the opinion that the alterations should not have occurred. 20 The experts disagreed as to what, if any, works might be undertaken to reduce the impact of the unauthorised works on the heritage significance of the property. 21 Mr Moore's conclusion on this issue as stated in the joint report was as follows: Mr Moore considers that through their construction, most of the works have effectively caused damage that cannot readily be reversed. With the loss of original fabric having occurred, reconstruction using new materials is arguably of little benefit, considering the costs involved. The most benefit would be gained by reverting the hipped end of the main roof to its original condition, removing the most obvious and poorly configured change to the building, and the change most easily reversed. This would not prevent use of the attic spaces that have been introduced. 22 Mr Patch was of the opinion that the gable on the main roof is some 2.0 to 2.5m further west than the original hipped roof, and that to reinstate the roof would make the staircase to the attic unusable. Mr Moore accepted that the reinstated hipped roof would not necessarily have to be in its original location; while that would have some impact on the heritage significance of the building, it would be less than the impact of the gable. Mr Moore was of the opinion that the LEP requires discussion and consideration before proposed changes are made to a heritage item, and had that occurred the alterations to the roof would have been contra recommended. In his opinion, of all the changes this would be the only for which reversal would have value: removal would not be overly complicated and while it would have some expense, it would have benefit and partly assuage the damage done. 23 The applicants provided evidence as to the cost of reinstating the hipped roof in the form of a quotation by Attic & Room Conversions Pty Ltd in the sum of $208,000. Mr Moore disagreed that the work would cost that much, on the basis that the quotation included items such as removal of the staircase, which would not in his opinion be necessary. In a letter to the Council dated 14 April 2010, Mr Moore stated:
The present "new" rear gable of the house, built without consent, facilitates a large stair hall space receiving the stair ascending from the second floor of the house, within the polygonal turret. From my inspection with Mr Patch, I do not see why this roof cannot be re-framed, slated and relined as necessary without disturbing much the interior, including the staircases. I do not see why the architraves require renewal, and refinishing - these could in my experience, be protected during the works.
The most complex part of the task would be the reconciliation of the polygonal turret roof with the side plane of the main roof, once the hip had been reinstated. This junction would appear in the rear elevation more or less just as it does at present in the front elevation, and the task is no more complex than the roofing which has already been done.
24 While acknowledging that there would be some tricky carpentry in integrating the turret and hip roof, Mr Moore estimated that the work would cost half to two-thirds of the amount quoted. Mr Patch agreed that there would be some tricky joinery and that there would be expense incurred because the roof is slate; he estimated the work would cost in the order of $150,000 to $200,000. 25 The experts gave evidence as to the visual impact of the unauthorised works. Mr Moore was of the opinion that a reinstated hip roof would be visible from side streets. Mr Patch was of the opinion that it would not be visible from Farleigh Street, that there would be an oblique view from the corner of Farleigh Street and Clissold Street, and that there would be broken view through foliage and other houses along Clissold Street. Consideration 26 The parties have reached agreement on work required to address the matters identified in Orders 1 and 13 made on 17 November 2009. The parties have reached agreement on the matters detailed at 1, 2, 3, 4 and 5 of Order 12 made on 17 November 2009. Some of this work has already been undertaken, and the parties have reached agreement on remaining work to achieve compliance with the Building Code of Australia. In particular, in addressing the reduced ceiling heights above the stair leading to the attic, in the attic and in the lower ground floor basement area, the parties have agreed to the padding and lighting of the stair, and to a restriction on use of the attic for storage only. This restriction is to be supported by the registration of a covenant on the title. 27 In addressing the requirement in the Orders for the reinstatement of the building, the remaining issue in dispute is whether the work recommended by Mr Moore, namely, reverting the end of the main roof to its original hipped condition at the rear of the house, should be undertaken. 28 Mr Webber for the Council submits that it should, for the reasons given by Mr Moore. It is not simply a question of visibility, but the importance of reinstating that part of the house. In his submission Mr Moore's solution is workable, and recognises the function of the attic space as a storeroom. It is not just a question of cost but a consideration of the totality of the issues. The work is not that complex and would achieve a long term benefit. 29 Dr Berveling for the applicants submits that there is no evidence that the gabled roof has had an impact, for example, in the form of complaints and there are limited views of the gable and roof which minimises adverse impact. The work required to integrate the turret and hipped roof and the north-western corner would be complex. In assessing whether the cost of reversing this part of the unauthorised work would be reasonable the benefit from doing the work has to be considered, and in this regard, Mr Moore accepts that the roof would not be reduced to its original length if this work is done, and there is no evidence of any adverse impact on the locality. Orders appeal 30 Section 121ZK(4) of the Act sets out the powers of the Court in determining an appeal against orders made under s121B of the Act: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit.
31 It was common ground that development consent was not sought or obtained for the works undertaken by the applicants to the property other than for the construction of the swimming pool. Whether or not the unauthorised works have had a positive impact on the integrity of the building, as argued by Mr Patch, or a detrimental impact on the heritage values of the house, as argued by Mr Moore, I am satisfied that it is not practicable to order the reinstatement of the building to its condition before the unauthorised works were undertaken. Even on Mr Moore's evidence, the only work that would be of some benefit in reversing the changes brought about by the unauthorised works would be to require the reinstatement of the hipped end of the roof at the rear of the house. 32 In considering whether or not that should be required, there are a number of factors to consider. I accept the evidence of Mr Moore and Mr Patch, who are both experienced architects and heritage consultants, that the work would involve the integration of the new hipped roof and the turret; and that this could be done without necessitating the removal of the staircase. 33 The evidence before me did not support a firm finding as to the cost of undertaking the work. The written quotation includes removal of the staircase, and it is therefore not necessarily a reliable guide. Based on the evidence of Mr Moore and Mr Patch, I accept that the work could involve somewhere near the order of $100,000 to $200,000. 34 Based on the photographs provided by Mr Moore (Exhibit G) and by Mr Patch in his Statement of Heritage Impact, I find that the end of the roof if reinstated as proposed by Mr Moore would be visible from Holden Street which runs parallel to Farleigh Street, from the corner of Farleigh Street and Clissold Street, and obliquely from other parts of the public domain.
35 It was common ground that approval was not sought for any of the works undertaken to the house. Had consent been sought the process required by cl 32(4) of the LEP would have required assessment of the impact on the heritage significance of the house as a heritage item. Mr Felthouse's statement includes a statement that in the late 1990s the applicants approached the Council to discuss flooding problems in the basement, "and presented photos together with an architect's sketch." Mr Felthouse further stated that "the plan had a small extension outside the building envelope and was dismissed out of hand by the council's heritage advisors." This is consistent with a Council Memorandum by Ms Helen Wilson, its Heritage Advisor, which records that in 1999 the applicants discussed additions to their house and proposed plans were provided. Ms Wilson states that the applicants were advised that the "elaborate scheme" proposed was not appropriate.
36 In my view the likely cost and work involved in the reinstatement of the hipped roof at the rear of the house is not warranted, having regard to the limited visibility of this section of the roof from various parts of the public domain. 37 While it is clear that the applicants proceeded with substantial unauthorised works over many years, including after they were advised by Council officers that their proposals were not appropriate, the discretion conferred by s 121ZK(4) has to be exercised having regard to the merits and not in a punitive way. While precedent was not raised by the parties as an issue in my view the time and costs involved in these proceedings and the delay in the applicant's sale of the house should provide a disincentive for others who might seek to carry out unauthorised works otherwise than in compliance with the requirements of the Act and LEP. 38 I am satisfied that the unauthorised works are either structurally adequate or can be brought into compliance with the Building Code of Australia in the form of the works which the parties have agreed should be carried out. 39 I agree that the agreed proposed Orders in substitution for the Orders made on 17 November 2009 are appropriate, and that it is not necessary to include in those substituted orders an order requiring replacement of the gable at the rear of the main roof with a hipped roof. Building Certificate appeal 40 In relation to the appeal against the refusal to issue a building certificate, s149F(3) of the Act provides the powers of the Court: (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. 41 I note the requirements set out by Justice Bignold in Ireland v Cessnock City Council (1999) 110 LGERA 311. I am satisfied, based on the report by Taylor Civil & Structural, that the building is structurally sound, and that the works agreed to by the parties will address any outstanding issues of compliance with the Building Code of Australia. While there is an issue whether consent would have been granted had it been sought before the unauthorised works were undertaken, I note the detailed consideration given by Bignold J in Ireland to the construction of the legislative scheme now in Part 8 of the Act, including the proposition that the discretion to issue a building certificate should not be exercised in a punitive way. Given my conclusions as to the appropriate orders to make in substitution for those issued by the Council on 17 November 2009, I am satisfied that it is appropriate to direct the Council to issue a building certificate once it is satisfied that the works agreed between the parties have been carried out and the documents provided in accordance with that agreement.
Orders 42 In appeal 10934 of 2009, pursuant to s 121ZK(4)(c) of the Environmental Planning and Assessment Act 1979 the Orders of the Court are: 1. Appeal upheld. 2. The orders issued by the Respondent Council pursuant to s 121B of the Environmental Planning and Assessment Act and both dated 17 November 2009 are substituted by the following: (a) The Applicant shall, within 6 weeks of the date of these orders: (i) Close the gap to less than 100 millimetres between the swimming pool fence on its northern side where it abuts the rear boundary fence; (ii) Repair the bottom rail of the swimming pool fence on its northern side where it abuts the rear boundary fence; (iii) Add additional brackets or bracing to the Perspex return on the northern side of the veranda so as to prevent excessive movement of that Perspex return leading to its damage or failure; (iv) Install additional metal stakes to the western side of the Koppers logs retaining wall on the rear boundary; (v) Provide to the Respondent an amended version of drawing "Attic Plan- Existing" prepared by HBO+EMTB, Drawing No. Land and Environment Court -04 Rev B, by replacing the words "study" and "library" with the word "Storage"; (vi) Implement items 1, 2 and 4 on page 3 of the document entitled "Alternative Solution and Performance Verification Report" prepared by AE & D Pty Limited dated 9 March 2010, Report No. 2462-Rev 01; (vii) Provide to the Respondent a letter from Taylor Civil and Structural Engineers to the effect that their reports dated 18 December 2009 and 19 January 2010 were based on the Engineer's Drawings prepared by Baigents Pty Limited and being exhibit B in these proceedings; (viii) Provide to the Respondent any documents required for satisfaction of the items (A) to (H) inclusive set out in Appendix A hereto or carry out any works identified in those items (A) to (H). (b) The applicant shall, before settlement of any sale of the property, arrange to have registered on the title of the property at Land and Property Management's Register, a covenant requiring the notification of the existence of the report entitled "Alternative Solution and Performance Verification Report" prepared by AE& D Pty Limited dated 9 March 2010, Report No. 2462 - Rev 01, and the need to adhere to its recommendations. 3. The exhibits are returned except for exhibits 4, A, B, C and H.
43 In appeal 10933 of 2009 pursuant to s 149F(3)(a) of the Environmental Planning and Assessment Act 1979 the Orders of the Court are: 1. Appeal upheld. 2. The Court directs: (a) The Applicant shall notify in writing the Respondent of completion of the works set out in cl 2(a)(i), (ii), (iii), (iv) and (vi) ("the Works") in Orders made on 19 April 2010 in proceedings 10934 of 2009, and provide to the Respondent the materials set out in cl 2(a)(v), (vii) and (viii) ("the Documents") of those Orders; (b) Unless the Respondent advises the Applicant within three working days that it is not satisfied that the Works have been completed and the Documents provided to its satisfaction, the Respondent shall, within 14 days of that notification, issue to the Applicant a building certificate for the whole of the building. 3. The exhibits are returned except for exhibits 4, A, B, C and H.
Linda Pearson
Commissioner of the Court
ljr
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.
Felthouse & Anor
Ashfield Council
(1999) 110 LGERA 311