Foster v Hurstville City Council

CASES CITED: PDF (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41

DATES OF HEARING: 01/12/2005, 25/01/2006 and 01/02/2006

APPLICANT Mr D Wilson, barrister Instructed by: Mr J Hannaford LEGAL REPRESENTATIVES: Of Hannaford Lawyers RESPONDENT Mr J Hewitt, solicitor SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11013 of 2005 George and Marie Foster v Hurstville City Council

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. 1 This appeal was lodged against council's refusal of a development application proposing the continuing use of an existing detached dual occupancy dwelling situated at 10A Ogilvy Street, Peakhurst. The lot is a battleaxe configuration. 2 The original dual occupancy dwelling was approved in 1990 on the basis that: "the consent is valid for a period of five years from the date of council's letter of consent. A further application is required prior to the expiration of the five year period for any extension of time of this approval." A number of other conditions of consent were also imposed. However, no further application was made for an extension of time and subsequently, pursuant to some complaints about the expiry of the consent action, was taken in order to vacate the use of the dual occupancy dwelling. 3 In response to this, a s 96 modification application was made to vary the original five year limitation on the use of the dual occupancy and the appeal arises from this. Planning controls 4 The relevant planning controls include: (i) Hurstville LEP 1994 : under which the dual occupancy is permissible and the relevant clauses include cll 11A(3), 11A(4) and 11A(5) have some relevance

(ii) DCP 11, Dual Occupancy Housing The evidence 5 Following the notification of this development application to extend the use of the dual occupancy dwelling a number of objections were received. 6 These objections include Ms Cifranic, who owns the neighbouring dwelling to the west. She expressed concerns about the exceedance of the limited time consent and also concerns about noise and overlooking into her rear yard and living room and bathroom area. 7 Mrs Moore, the neighbour from No. 8 Ogilvy Street, said that while she was aware of the original application in 1990 and did not object, this was on the basis that it was for the temporary five year period, which has now elapsed and on this basis the dual occupancy dwelling should now be removed. 8 Having considered the evidence presented, it is apparent that the conditions of consent did not require the removal of the building at any time. Therefore, the retention of the dual occupancy dwelling is permitted, although its use may be limited and that is the principal contested issue in this case. Accordingly, in considering this development application I note the applicant's intention to retain the dwelling in the absence of any conditions requiring its demolition. Therefore its physical presence in this neighbourhood can remain, as originally approved by council. 9 Whilst there are possible uses for this structure other than permanent residential use, it is obvious such uses would likely have some impact on the neighbours, such as noise if the structures were used as a rumpus room and there could be occasional overlooking from the windows along the western side. 10 Taking into account then the constraints imposed by the retention of the structure, I have considered the potential amenity impacts on the neighbouring properties likely to arise from the applicant's proposed continuing residential use. 11 One of the principle objections from Ms Cifranic concerned overlooking and loss of privacy from the dual occupancy kitchen windows. In this regard, I have considered the applicant's response to provide an additional level of privacy screen atop the existing colorbond fence to restrict the overlooking, with the effective screening height of approximately 2.2 m above ground level. 12 From my observations on the view, I note the associated evidence that the separation distance from the critical kitchen window to the living room area of No. 10 is in the order of 9 - 12 m. In my assessment the additional level of screening at the fence line, so as to provide the effective 2.2 m high fence screen, effectively blocks overlooking from the kitchen and also from the living room window. 13 Considering also that the applicant intends to supplement the perimeter screening vegetation along the western elevation, I am satisfied that the overlooking issue can be reasonably addressed as proposed by the applicant. 14 In reaching this conclusion I note that the rear yard of No. 10 is devoid of any screening vegetation, possibly indicating that the occupiers have reduced concerns about privacy. But the applicant's proposal to supplement the intervening perimeter landscaping is of a standard consistent with this general neighbourhood, apart from No. 10. 15 With respect to the concerns about noise, the Court was not informed of any undue noise impacts over its previous use that has required intervention and/or action. Apart from locking up the building, it is likely that occasional noise could be heard from this building, considering its approved location adjacent to the common boundary with No. 10. 16 However, considering the limited size of the dwelling and the corresponding limited occupancy space, I do not accept the objections that the continuing occupation will result in unacceptable noise disamenity, providing the occupants endeavour to be good neighbours. If this does not occur then the existing disamenity controls such as disturbance can be enacted by the relevant authorities. 17 Notwithstanding this, I understand that a further concern of the neighbours is that the continued unauthorised deck/pergola area on the northern elevation causes concern. I note the applicants evidence that this forms part of the entry arrangement to the dual occupancy and provides a limited screened attached outdoor area. 18 Taking into account the unauthorised status of the deck/pergola, its condition has been assessed by Mr S Maddigan, council's environment health and building surveyor, who considers it unsatisfactory because:

"The decking does not qualify under council's DCP 14 Exempt and Complying Development for the following reasons: o it has a roof erected over it and it is it is located less than 900 mm from the side boundary. o as the awning extends up to the northern side boundary it does not comply with the fire separation requirements of Pt 3.7.1 of the Building Code of Australia. o the awning does not qualify under council's DCP 14 Exempt and Complying Development as it is located less than 500 m from the side boundary. o the timber supporting structure is constructed of undersized timbers and thus does not comply with Pt 3.4.3 of the Building Code of Australia at AS1684.2 Residential Timber Frame Construction Non-Cyclonic Areas.

Fire Separation : o The distance between the walls of the existing dwelling and the subject building is 790 mm o Pt 3.7.l of the Building Code of Australia requires a fire separation of 1.8 m. o Should the subject building be permitted to remain in its present location, the external metal clad wall of the dwelling house would need to be altered so as its construction achieved a fire resistance level of 90/90/90 as required by Pt 3.7.1.5 of the Building Code of Australia."

19 As the development application includes the continuing use of this external deck area, it seems to me that any such use should be subject to reasonable safety and amenity considerations. 20 Insofar as some objections have recently been made about this deck area, nevertheless it appears its general existence has been accepted for a number of years. However, I note council's submission that the deck should be removed unless there are exceptional circumstances. 21 In my assessment, if the structure is to remain it should observe general setbacks to boundary provisions unless there are exceptional circumstances demonstrated. 22 In this case, the deck has been constructed adjacent to the northern boundary and slightly elevated above the natural ground level, which potentially reduces amenity for neighbouring properties. This lack of setback also precludes perimeter landscaping which can assist in mitigating the visual impact of the building. Therefore I consider any future use of the deck should be subject to its reduction in area so as to provide a minimum boundary setback of 900 mm. 23 Furthermore, I consider any continuing use of the deck would be subject to it complying with building safety requirements. In this case I accept Mr Maddigan's assessment that the proposal does not meet BCA requirements in terms of fire safety and structural adequacy and accordingly the future use of the deck should be subject to alterations to achieve adequate safety. Conclusion 24 Having considered the evidence, the submissions and undertaken a view, I consider the application merits conditional consent. The application is for the continuing residential use of the relatively modest sized detached dual occupancy dwelling that was approved in 1991, without any condition for its removal, despite the use being limited to five years. Furthermore I consider little weight, if any be given to the provisions of the DCP, considering they apply to the construction for new development. 25 There is no substantive evidence of disamenity caused by the use of this dwelling over its extended use period. Therefore, as the building can remain, I consider its continuing use acceptable, subject to the erection of the additional privacy screen with a total effective height of 2.2 m along the western boundary and planting and maintenance of the screen vegetation along this boundary as proposed by the applicant. 26 In this case I am satisfied that the privacy and structural adequacy can be achieved by fixing this screen to the recently constructed colorbond fence which has steel support posts rather than council's alternative preference for a separate structure. 27 I also consider that the use of the deck should be allowed subject to its reduction in width to provide a minimum boundary setback of 900 mm as required by the DCP and the BCA provisions and the necessary alterations to comply with the relevant BCA safety and structural requirements be required. Conditions of consent can address this. 28 With regard to the conditions there was considerable disagreement with the draft conditions and I have considered them and they seem to exhibit some similarities to the concerns expressed by his Honour, Talbot J, in PDF (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 wherein he said at par 41: "A copy of the approved conditions as edited by me is annexed and marked A subject to the requirements specified in the next paragraph:

Unidentified attachments are referred to throughout the draft conditions. These references have been deleted. Advisory notes have been omitted and unnecessary material taken out. These tasks have caused the Court considerable inconvenience and the requirement to do this reflects badly upon the capacity of both parties to bring the conditions of consent to a state of specificity, order, relevance and comprehension where they can be readily adopted by the Court. More care needs to be taken by the parties to ensure that draft conditions are submitted in a form that is readily conducive to publication and incorporation in a judgment." 29 Referring to some of the draft conditions, I accept Mr Wilson's submission that the application is for continuing use of the existing structure and it is not for consent to erect or alter a new building and therefore the reference to the basic requirements is not appropriate in this case.

30 Therefore the Court Orders are: (1) The appeal is upheld. (2) Development consent is granted to DA 20040775 for the use of a detached dual occupancy dwelling and deck at 10A Ogilvy Street, Peakhurst, subject to the conditions in Annexure A. (3) The exhibits may be returned except for Exhibits 3, 9, 10, 11 and 12.

                      R Hussey
                      Commissioner of the Court
                      Rjs/ljr

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