Garbacz & Ors v Morton & Anor

I now have to determine if I should make any order that the marquee be removed by some time prior to the fireworks and other displays and events on the evening of New Year's Eve.

There are some conflicts in the factual evidence before the court, and in the interpretations of what is a " view ", or what is an " uninterrupted view ", with or without the presence of the marquee, and there are also arguments between the parties as to the accuracy, fairness and utility of some of the photographic evidence. However, in the urgency of the situation, the court must now of necessity focus on the real or core issues involved in this dispute, rather than those arguments regarding factual detail or opinion.

The court has had the benefit of a fairly comprehensive site inspection, with the marquee fully in place, and that has assisted me greatly in understanding all aspects of the evidence.

The Mortons have lived at 4 Fisher Avenue Vaucluse for about 10 years, their house having been commenced in about 1986. The house presents to the street as a single storey building, topped with a flat roof surrounded by a parapet. There is, however, another level of accommodation below that street level, outside of which on the harbour side is an outdoor entertaining area, including a swimming pool.

On two earlier occasions (in February 1996 and on New Year's Eve 1997) the Mortons engaged a particular marquee hire company to erect a large marquee on their flat roof for entertainment purposes.

Neither on those nor on this occasion did they seek any Council approval, and on those earlier occasions they received no complaint of any kind.

However, deciding some time ago to have a New Year's Eve 1999 function on their roof to raise funds for the Garven Institute and the Jewish National Fund, they committed to substantial expense and personal dislocation. They also took the trouble to write a courtesy note to their neighbours, although this is not in evidence, and to raise with Woollahra Council, by letter of 13 December, some concerns regarding traffic, parking and access.

In none of these communications did they mention the erection of the marquee, and Mr Morton frankly conceded in his evidence that the thought of needing or seeking any Council approval regarding the marquee or his function did not enter his head.

The subject marquee was commissioned from the hire company in about June 1999, and Council officers did not pursue, in response to the letter of 13 December, any question of the Mortons requiring any approvals in respect of it, or of their function.

The framework of the marquee went up on 23 December. The applicants immediately engaged the services of an Architect (Jennifer Hill) who had had a particular involvement over some years with the redevelopment of No.1 Fisher Avenue, the house of the applicants Yap and Garbacz, which is directly opposite No.4.

Ms Hill made contact with the Mortons on 23-24 December on behalf of the concerned residents.

Mr Morton then faced up to a serious dilemma in dealing with his marquee contractor regarding the completion of the erection of the marquee, and, despite the warning letter he had received from the neighbours overnight on 23 December, some time after 9.30am on Christmas Eve, he ordered that the opaque fire-resistant PVC, or white canvas, and the other transparent plastic or perspex side walls, and the white PVC or canvas pitched roof, of the marquee be fitted to the aluminium tube framework.

In his oral evidence he candidly acknowledged that there was some impact on the applicants, but he disputes the magnitude contended for that impact by the applicants' Architect, Ms Hill.

Her evidence addressed the extent of interference with views from the various properties, but what struck me on my inspection this morning was the stark appearance, at least in the daylight, of the white marquee itself. It was presumably this starkness, rather than actual view loss, which moved the applicant Dr Mahony to describe the marquee as " hideous ".

The interlocutory proceedings commenced at 1pm and concluded after 4.30pm on Christmas Eve. Thereafter there have been various discussions and negotiations among the parties, particularly before the further hearing commenced yesterday (29 December) at 2.30pm, but without any resulting resolution of the problem caused by the marquee.

In reality, the court is now faced with only two effective and practical alternative choices - I can make no order, either because there is no case, or because I exercise my discretion in favour of the Mortons, or, alternatively, I can order the removal of at least the covering materials of the marquee, if not the whole of it.

If the court decides to order that the marquee be removed, the Charity function, which is expected to clear about $40,000, will be in some ways " damaged ", especially in the event of rain, which is apparently now predicted. There is also some doubt amongst the evidence as to whether such an order can be carried out. In fact, the hire company's Mr Lamberty stated in the witness box that the marquee " wasn't going anywhere ".

If the court declines to make such an order, the guests at various private functions in the applicants' houses will suffer some impaired access to the views of the harbour and its events, unless they are to leave the most usual or convenient, and thus the best, vantage points available in those properties.

Now, this marquee is apparently 15metres long, 12metres wide, and 5metres high to its ridge. It apparently has a replacement value of some $60,000. It is not fixed to the floor of the flat roof area, but is kept stable in position by the careful placement of 5 tonnes of heavy lead weights. It took some 8 hours of work to erect and is expected to take some 8 hours to demolish. The Managing Director of the company which owns and erected it (Mr Lamberty) claimed in his evidence that it was impossible for him to arrange its demolition before 2 or 3 January. The material can apparently be easily ruined by inexperienced handlers, and the removal of both the framework and the covering requires expertise and experience. Indeed Mr Lamberty says that its demolition requires no fewer than 6 trained staff for the whole 8 hours.

The hire company erects and demolishes some 40 marquees per week, and, over this holiday season the number grows to 60; hence the alleged difficulty in rescheduling.

It would also appear that the removal of some or all of the covering on the framework at short notice, in the event, for example, of clear weather on New Year's eve, is not an alternative available to the parties or to the court.

So much for the Mortons, their marquee and possible outcomes of the proceedings. Let me now say something about the applicants.

27 The major " victims ", if I may use that term in quotation marks, of any obstruction of views among the neighbours are Mr Yap & Ms Garbacz in No.1 Fisher Avenue and Dr & Mrs Mahony in 16 Wentworth Road. The court has visited both homes as well as that of Mr & Mrs Morton.

28 Ms Garbacz, Mr Morton and Dr Mahony all gave oral evidence.

29 The applicants Hoffman live in 18 Wentworth Road and the Georges in 20 Wentworth Road, but they have taken no visible role in the discussions, or in the hearing, and the court viewed their properties only from the outside.

30 Other neighbours, Gary Levine of 3 Fisher Avenue, and Stephen Eckowitz the owner of 20 Gilliver Avenue, which is next door to Mahonys' behind the Yap/Grabacz residence, have sworn affidavits in support of Mortons' case, expressing no objection to the marquee, and indicating that the marquee does not impede their views of the harbour.

31 Yap and Garbacz have only recently occupied their home after some years of its redevelopment. Relevantly they were apparently not around to be inconvenienced in any way by the marquees erected on the roof of the Mortons' residence in 1996 and 1997. The evidence does not disclose if they were aware of the Mortons' function before the marquee went up, but, in any event, they and the Mahonys have organised parties in their homes for New Year's Eve.

32 The design of No.1 included establishing some 3-4 metres above street level a substantial outdoor entertaining area (see Exhibit A7 ) specifically to capture the harbour views across the parapet of the Mortons' roof, subject to the presence, off to the south, of one remaining camphor laurel tree on its frontage.

33 I am satisfied that the total outdoor entertaining area is approximately 115 square metres in area. A small portion of it is a grassed area near the carp pool. Directly behind that, moving from the street, is a paved area, and then there is a short step up, we believe 700mm, to a paved swimming pool area. A further step up off to the south is the access to the internal living area, which is approximately 900mm above the grassed area. Views to the harbour are available, and have been observed during the inspection, from the windows of the downstairs living area, and from the upstairs bedrooms. Most of those from the downstairs interior are obscured by trees, either their own camphor laurel or the trees outside or near No.6.

34 In essence, the marquee now occupies the air space formerly filled by the two camphor laurel trees that were removed, and so it blocks the views. There are, however, clear views over the trees, rooves and the marquee from all upstairs windows, from which the marquee is to be seen in the lower foreground to one's right.

35 Dr & Mrs Mahony obtain their views of the harbour by looking through a view corridor over the Yap/Garbacz outdoor entertaining area. The best views from Mahonys' house are from the windows of an elevated living room or from a balcony or terraced area above that window. Apart from seeing the stark marquee in their foreground I am not convinced that the Mahonys will lose sight of any of the New Year's Eve events on the harbour from their viewpoint over the top of the marquee.

36 Given the similar elevation of the Hoffman and George properties I would expect a similar conclusion in respect of the impact on their views - a rather nasty intrusion in the foreground, but little damage to the long view over the top of the marquee.

37 I turn now to the applicants' entitlement to relief.

38 The applicants' first contention is that, as the marquee has been erected to facilitate the raising of substantial funds, albeit for charitable purposes, the Mortons' function is a commercial use, which is prohibited in the residential zone, and, therefore, the erection of the marquee is illegal.

39 I see no merit or substance in this submission. The raising of dollars for charity is ancillary to having a function for invited guests in a private home on a special occasion and is clearly permissible. See the judgment of Gibbs CJ in Lizzio v Ryde Municipal Council (1983) 51 LGRA 114, particularly at 116-117, discussing Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, especially the well known principles laid down by Glass JA at 161.

40 The applicants say that the marquee, albeit a temporary construction, is a " structure " and/or a " building ", and, as such, not being for residential purposes, but being located in a residential zone ( Exhibit A4 ) and in a foreshore scenic protection area, it requires a development consent, by virtue of the application of cl 29 of the EPA (Savings and Transitional) Regulation 1998, which calls up s 68 of the Local Government Act 1919 .

41 The suggested interaction of these provisions to bring about the result contended for by the applicants seems to have taken the Council, the local community, and particularly the marquee industry, somewhat by surprise.

42 Mr Lamberty has been in the industry 15 years; he deals with 40 erection jobs per week, and plays a keen role in the field. He says he has never heard of any approval requirement, nor seen it referred to in any industry publication.

43 The Woollahra Council has been alive to the applicants' expressions of concern, and supportive of their proceedings. Both the Mayor and senior Regulatory Inspector for the Council swore affidavits and gave oral evidence, despite the Council being closed on holidays from midday Christmas Eve until 8.30am on Monday (sic) 4 January. The Mayor would not support a development consent being granted for this marquee, but there is no evidence that the Council has ever insisted upon an application, development or otherwise, or considered adopting a policy requiring one.

44 The transitional regulations are important in the overall scheme of things because the legislative abolition of the building approval process has left a gap in Councils' powers to regulate activities within their purview. The regulatory system is still in transition and it is envisaged that so-called minor or non-permanent construction tasks such as sheds, barbecues, etc. will be regulated by local approvals policies, in respect of which none relevant to this case has been produced or tendered. See and compare Andreotakis & Ors v Woollahra Municipal Council (10698/20196 of 1997; 10 March 1998).

Is the marquee a " building " or a relevant " structure "?

45 If the marquee is at law a " building ", cl 29 will be activated and a development consent will be required.

46 If the marquee is at law a " temporary structure ", it will require an approval from Council under s 68 of the Local Government Act 1993 as amended.

47 The applicants suggest it can be either or both, and thus illegal, through having neither development consent nor Council approval.

48 Time does not permit the complete rehearsal of what appears in the respective written submissions of the parties, but as Gibbs CJ said in Lizzio (at 117) these are indeed questions " of fact and degree ".

49 Let me say, bluntly, that I do not resile from anything in my judgment in Conomos v Chryssochoides (1997) 97 LGERA 113, especially at 119-121, nor from my application of it in, e.g. Stevens v Cleary (40229 of 1997; 24 July 1998) [See particularly section 7.1 of that judgment].

50 This marquee has none of the features of a fixture. It is entirely portable, and is designed to be moved from place to place for short periods and/or specific events. The public interest does not suggest, let alone dictate, that any, let alone every, erection, movement or demolition of it should be the subject of a specific Council approval. The Local Government Act definition of " building " excludes a " moveable dwelling or associated structure ", and this marquee would seem to me to be a lesser beast than those.

51 I, therefore, prefer the submissions made by Mr Conti in this regard, and adopt a purposive approach to the construction tasks I face here.

52 The definition of " temporary structure " includes " booth, tent or other temporary enclosure ", but Councils do not , as Mr Conti points out, require approval processes for tents, dog kennels, garden tool sheds, and the like. I acknowledge that this marquee is of substantial size, but in the absence of evident legislative intent to embrace such items I will not draw such an ad hoc distinction.

53 While I concede that a case could be mounted for some regulation of movable function facilities and hire company operators, particularly on questions of soundness, safety, and emergency escape, singling out one New Year's Eve marquee, on a private property, in a planning case, does not appear to me to be the way to approach it, nor an appropriate law-making role for the court to take, irrespective of what regime may be in place for such regulation when the transition period is over.

54 I have concluded, therefore, that the Class 4 application must fail.

55 I doubt that, given more time to consider the competing arguments, I would come to a different conclusion, but, in case I am wrong in my conclusion, and in fairness to the parties, I should make some comments on the question of discretion.

Having full regard to all the guidelines laid down by the NSW Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67, if it came to the point, I would exercise the court's discretion in favour of the Mortons.

As Mr Conti's submissions say in another context: The erection of a marquee on the property must have an inherently minimal and transitory impact on the amenity of the neighbourhood.

It is clear that the impact of this marquee on the amenity of Mr Yap, Ms Garbacz and their extended family is very personal and localised, yet quite substantial, as it was in Conomos , even if it is de minimis to the world at large. In any event, its impact is very short-term, as it is in the concert cases which come before this court.

It is likewise clear from the evidence that the Mortons meant no harm to them or other less affected neighbours. Mr Morton is proud of his reputation as a good citizen and a good neighbour. Such disputes as this inflame neighbourhood relationships, and put the court in difficult positions, and, while I hope the fairly cordial negotiations between the two principal households augur well for the future, I have struck the necessary balance of competing equities in favour of the respondents. One regrets that in practical terms the New Years Eve guests at No.1 Fisher Avenue may have to adjourn to the upstairs bedrooms to see some of the harbour events.

In my considerations the charitable character of the Mortons' function does not weigh as heavily as Mr Conti's submissions urge. The Mortons, however, as Mr Conti pointed out, and, I think, the applicants acknowledged, stopped short only of demolition in seeking a resolution to the dispute which they had no real reason to expect.

Having indicated my views on the legal issues, and on the question of discretion, the practicality issue surrounding any order to demolish does not require discussion.

The orders of the court will, therefore, be: 1. The application is dismissed. 2. All questions of costs are reserved. 3. All the exhibits may be returned.

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