Lloyd v Hornsby Shire Council

LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994

DATES OF HEARING: 11/01/2005 EX TEMPORE JUDGMENT DATE : 01/11/2005

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT: ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is the judgment in appeal 11223 of 2004 between David Lloyd and Hornsby Shire Council in regard to the refusal of a deck at the rear of unit 9 Nos. 40-42 Stanley Road, Epping. The applicant was represented by Mr Creighton and Mrs Lloyd attended the hearing on site on 11 January 2005. Mr Pickup represented the respondent council assisted by Mr G Mahony senior town planner of council. The hearing was also attended by Mrs R Morrison objector and resident of No. 14 Raymond Place and Ms D Quintal, student planner.

2 The proposal was for a deck between the rear of the townhouse and the back boundary that adjoined Nos. 14 and 16 Raymond Place. Due to the slope of the land the deck would be elevated above the ground so that in locations the top of the balustrade would be about level with the top of the fence. The proposed deck would come to within 1.3 m to 1.5 m of the boundary which means that persons standing on the deck near the balustrade would be able to see over into the backyards of the adjoining houses.

3 The backyards contain swimming pools, BBQ areas and paved recreational spaces with pergolas used as private open space.

4 There were existing trees within the subject property which were to be retained. However, the lower branches would need to be pruned in order to give head clearance for persons on the deck and this would mean the existing screening between properties would be severely reduced. 5 Part of the concerns of the objectors and the council was that there were two new windows shown on the plan. One was to the living and one to the family room of the townhouse. But they were not part of this application. The existing window to the living room was a highlight window as was one to the family room.

6 It had transpired that the original consent for the townhouse development had specifically required unit 9 to have these highlight windows to minimise overlooking of the adjoining properties. Their enlargement, the family room one to become a glass sliding door to the landing of steps down to the deck, and the living room one to become a larger window with sill level near the floor would be contrary to the original conditions of approval.

7 During the hearing the applicant sought to add these alterations to these windows to become part of the application, and this was not opposed by the council on the basis that privacy screens would be erected on the deck in order to protect the amenity of the neighbours.

8 The approximate location and head height of a person standing on the deck at its balustrade was approximated by objects hung in the branches of the boundary trees. This was observed from Mrs Morrison's backyard and also from backyard of No. 16 Raymond Place. It became evident that persons standing near the balustrade would be able to see over.

9 It was agreed by the parties and Mrs Morrison that appropriate privacy screens could resolve the concerns. Mrs Morrison, however, sought that the privacy screens not be erected on the fence line as her back fence was already well over 2 m high, possibly over 3 ½ m, and a further 600 - 900 mm high privacy screen would make it visually unattractive. 10 The Court was directed to the provisions of the Hornsby Shire Development Control Plan for low density multi-unit housing, and in particular to its provisions in regard to the protection of amenity and privacy contained on pp 8, 11 and 13. These provisions required that any structure within 3 m of the rear boundary should not compromise the amenity of neighbours, and gave weight to the council evidence.

11 The applicant in a spirit of compromise indicated its willingness to erect the privacy screen but sought that it be detached from the deck, and constructed between the fence line and the balustrade, so as not to be visually oppressive to persons on the deck.

12 The respondent agreed to this provided that it was not within the drainage easement which ran along the fence line nor erected upon the fence.

13 There being no drawings at this stage of consideration, it was agreed that a suitable condition could be added to the draft conditions the council had tendered in Exhibit 5 of this hearing.

14 Having considered the evidence, and observed the situation on the site, the Court agrees that the development could now be approved subject to appropriate conditions.

2. Development consent is granted to a deck at the rear of Unit 9, No. 40-42 Stanley Road, Epping, as shown on drawing Nos. 1 of 3, 2 of 3, 3 of 3 by Rowena Lloyd all dated 5 February 2004 in Exhibit A of this appeal, all subject to the conditions in Annexure A hereto.

3. Annexure A shall be as in Exhibit 5 of this appeal with the addition of Condition A to be put before Condition 1, as follows: A(a) Privacy screens of materials and structures satisfactory to the council to be erected between the boundary fence and the balustrade of the deck such that a person with eye height of 1.6 m above the deck at the balustrade cannot see down into the back yard private recreation areas of Nos. 14 and 16 Raymond Place.

(b) The proposed enlarged window and the glass sliding door to the Living Room and Family Room, respectively, of Unit 9, shall only be installed concurrently with the erection of the deck and privacy screens, and not otherwise.

(c) A plan of the privacy screens location, height and materials, and the windows to be lodged with the Construction Certificate.

(d) The privacy screen structure shall not be within the drainage easement along the common boundary with Nos.14 and 16 Raymond Place, nor attached to the boundary fence. 4. The exhibits are returned to the parties, except for Exhibits A, 1, 2 and 5.

              K G Hoffman
              Commissioner of the Court
              rjs/ljr

Annexure "A" David Lloyd v Hornsby Shire Council Conditions of Development Consent for a deck at the rear of Unit 9, Nos. 40-42 Stanley Road, Epping

1. Development consent is granted to a deck at the rear of Unit 9, No. 40-42 Stanley Road, Epping, as shown on the drawing Nos. 1 of 3, 2 of 3, 3 of 3 by Rowena Lloyd all dated 5 February 2004 in Exhibit A of this appeal, all subject to the conditions below. i. Privacy screens of materials and structures satisfactory to the council to be erected between the boundary fence and the balustrade of the deck such that a person with eye height of 1.6 m above the deck at the balustrade cannot see down into the back yard private recreation areas of Nos. 14 and 16 Raymond Place. ii. The proposed enlarged window and the glass sliding door to the Living Room and Family Room, respectively, of Unit 9, shall only be installed concurrently with the erection of the deck and privacy screens, and not otherwise. iii. A plan of the privacy screens location, height and materials, and the windows to be lodged with the Construction Certificate. iv. The privacy screen structure shall not be within the drainage easement along the common boundary with Nos.14 and 16 Raymond Place, nor attached to the boundary fence.

No site works, including the removal of vegetation or any demolition works, shall be commenced prior to: 1.1 A construction certificate being issued. Principal Certifying Authority

Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

It is a requirement of the Environmental Planning and Assessment Act, section 81A(2)(c) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.

All building work must be carried out in accordance with the requirements of the Building Code of Australia. Should there be any alternative solutions listed as Category 2 Fire Safety Provisions and outlined in the Environmental Planning and Assessment Regulation 2000, a fire engineering report should be forwarded to the Brigades for comment under Clause 144 of the Environmental Planning and Assessment Regulation 2000.

The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.

The cost of repairing any damage caused to Council's assets as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a subdivision certificate. Signs for Construction Sites 7. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A.

8. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

Inspections - Building 9. The building works must be inspected and compliance certificates obtained certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:- o The pier holes/pads before they are filled with concrete. o The framework when completed and prior to the fixing of any decking. o The building or structure when completed and before occupation or use is commenced. It is the responsibility of the builder/applicant to organise the required inspections in accordance with the development consent. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours. Sydney Water

10. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92. The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.

11. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.

12. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued.

Occupation 13. The building or part thereof shall not be occupied until an occupation certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979. 14. The premises shall be occupied solely for the approved use. No separate occupation or use of any part of the premises shall take place without prior development consent, (other than for exempt or complying development). Tree Protection 15. A tree retention plan is to be included with any construction certificate indicating: (a) the trees to be retained. (b) all areas left undisturbed and to be cordoned off from constructions works.

It is noted that the proposal includes the retention of all existing trees. This will necessitate some pruning of lower branches to give headroom on the `proposed deck. Approval of pruning by council's Tree Preservation Officer may be required.

16. The developer or contractor will take all measures to prevent damage to trees and root systems during site works, construction activities and the provision of utilities and stormwater drainage services.

      K G Hoffman

Commissioner of the Court rjs/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.