Majzoub v Liverpool City Council

Land and Environment Court (NSW)|2018-03-29|Before: Bignold J

Judgment

COMMISSIONER: This is an appeal arising from the refusal by Penrith City Council to issue a building certificate pursuant to the then s 149A of the Environmental Planning and Assessment Act (the Act). The proceedings relate to a 60 square metre shed located on the property at 3 Culverston Avenue, Denham Court.
Relevantly, since the appeal was lodged Building Certificates are now referred to in the Act as building information certificates and these certificates are made pursuant to Section 6.26 of the Act.
This matter was initially dealt with as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). Following termination of the conciliation the matter proceeded to determination under s34(4)(b) of the Court Act on the basis of what has occurred at the conciliation conference and the submissions of the parties.
Where unauthorised development has occurred, and the development is permissible with consent, it is possible to seek a Building Information Certificate to prevent orders being made for demolition in the future. This was established in Ireland v Cessnock City Council, [1999] 103 LGERA 285 where Bignold J held that a building certificate under s149A (now sec. 6.26 of the Act) could be used to 'regularise' an unauthorised structure.
Section 8.25(3) of the Act sets out the powers of the Court on appeal as follows: "(3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate."
The applicant seeks the Court to direct the Council to issue a building information certificate subject to conditions. These conditions are: "that screen landscaping be provided in accordance with the report of the applicant's landscape architect and that the outer wall of the shed that is facing the neighbouring property at 5 Culverston Avenue be painted in a recessive grey colour in accordance with the report of the applicant's town planner" (Applicant's submissions).

Locality and the Subject Site.

The locality is characterised by large semi-rural lots with significant homes set back from the street.
The subject site has a land area of approximately one hectare and has several improvements including a dwelling, tennis court and swimming pool.
The applicant's submissions note that the shed the subject of the proceedings was constructed without development consent having first been obtained from Council.
It is agreed between the parties that the shed is approximately 9 metres by 6 metres in size and is located between 1.05m and 1.5m with the common boundary of the adjoining residential property at 5 Culverston Avenue.

Planning Controls

It is agreed between the parties that the proposed development does not fall within State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as complying development and requires consent.
The subject site is zoned R5 - Large Lot Residential under the Liverpool Local Environmental Plan 2008. The objectives of zone are:

To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
To minimise conflict between land uses within this zone and land uses within adjoining zones.
To ensure that a high level of residential amenity is achieved and maintained.
To provide for complementary uses that are of low impact and do not unreasonably increase the demand for public services or public facilities.

Dwelling houses are permitted in the R5 zone and outbuildings (sheds) are permissible as ancillary to the dwelling house.
As noted in the Applicant's submission the location of the shed does not comply with the numerical standards of the side setback control prescribed by Section 3 of Part 3 of the Liverpool Development Control Plan 2008 (DCP). Those standards are: Section 3: Setbacks Objectives a) To set dwellings back from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access. b) To set dwellings back from each other to provide visual and acoustic privacy. c) To create a streetscape that provides a desirable and safe environment. d) To establish a streetscape of a scale and sense of enclosure appropriate to the locality. e) To provide an appropriate area capable of allowing the growth of trees and shrubs. Controls … Side and Rear Setbacks 5. Dwelling houses and any other buildings shall be setback a minimum of 5m from the side boundaries and a minimum of 12m from the rear boundary. …

Issues:

Council maintains that the building information certificate should not be issued for the following reasons: 1. The location of the shed at a setback of between 1.05m and 1.57m from the side boundary of the property is a significant variation to Council's controls that is not warranted. 2. The Council maintains that there is no constraint on the shed being located at either a compliant setback or elsewhere on the site; 3. The shed is not in character with the locality and is inconsistent with the objectives of the setback control, in particular objectives (c), (d) and (e). 4. If the shed had been proposed to Council as part of a development application it is unlikely it would have been supported. (Statement of Facts and Contentions)
The applicant makes the following submissions in relation to the legal framework for the consideration of the appeal: In Ireland v Cessnock City Council (1999) 103 LGERA285 and Ireland v Cessnock City Council (1999) 110 LEGERA 311, the Court (per Justice Bignold) held that the main issues for the Court when considering an application for a building certificate are first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought. (Applicant's submissions)

Public Submissions

At the conciliation conference the adjoining owner made submissions to the Court regarding the shed. It was their concern that the shed was located close to the common boundary, was inconsistent with Council's setback controls and was visually intrusive.

Experts:

The experts who assisted the Court were:

Planning: Mr Sarich (Applicant) and Mr Mottram (Council)
Landscape: Mr Webster (Applicant) and Mr Nichols (Council)

Evidence

Mr Sarich prepared an expert report in relation to the proceedings. He concludes that any issues arising from the non-compliance with setback can be addressed by two mitigation measures: 1. the implementation of screen planting adjacent the boundary fronting the adjoining nieghbour; and 2. the painting of the northern wall of the shed to a recessive colour.
Relevantly Mr Sarich argues that, following the implementation of these mitigation measures, the shed is acceptable based on the following reasoning: 1. once the mitigation measures are in place the shed will be less visually intrusive than sheds on other properties in proximity to the subject site that are highly visible and unscreened by vegetation; 2. any visual impact to the adjoining neighbour arising from the sheds noncompliance with the setback control would be mitigated and should be considered in the context of the approximately 21m distance between the shed and the dwelling at 5 Culverston Avenue; and 3. whilst representing a variation to the numerical setback control the setback of the shed, with the mitigation measures proposed, meets the objectives of the control. On this basis he argues that it is appropriate for the Court to apply the DCP control flexibly.
Mr Arch argues these requirements could be conditions of any building certificate subsequently issued by the Council.
The evidence and conclusions of Mr Sarich are informed by an expert report from landscape architect, Mr Webster. This report concludes that in Mr Webster's opinion there is sufficient space between the common boundary and the shed for effective screen plantings to grow. He recommends the plant Syzigium austral "Pinnacle". According to Mr Webster's expert report this plant is: "hardy; low water use once established which retains a compact, upright form that makes it an excellent screen plant which can easily reach a height of over 3 metres which will provide a soft and green screen when viewed from the neighbours property" (Expert Witness Statement: Webster)
Council relies on the expert planning evidence of Mr Greg Mottram who concludes that the inconsistent with the objectives of the R5 zone to minimise conflict between land uses and ensure a high level of residential amenity. He reaches this conclusion on the following basis The construction of the shed in its location is considered (to) impact of the ability of the neighbouring lot to achieve and maintain a high level of residential amenity. This is caused by a reduction in visual amenity due to removal of some of the existing vegetation to be replaced by the hard impact of the rear of the shed over 12m along the boundary from the point of view of the neighbouring property. The use of screening plants may provide some level of remedy however, the bulk and scale of the shed will still be present on the boundary. (Expert Witness Statement: Mottram)
Further Mr Mottram argues that the variation to the side setback control of 3.95m or 79% is not warranted. In his evidence he notes that the location of the shed is not dependent on car access as it is not wide enough to accommodate a motor vehicle. He argues this leaves the potential for the shed to have been located elsewhere on the site in compliance with the setback control and will less impact on the adjoining property and the character of the precinct. He argues the variation sought does not meet the objectives of the control on the following grounds: 1. If the shed was built with a complaint 5m setback, there would be sufficient area for significant vegetation including trees and shrubs to minimise the visual impact in a manner equivalent to the rest of the boundary. The 1m space given removes the ability of this type of landscaping to be achievable. 2. The proposed provision of screen planting is not a desirable remedy as the bulk and scale of the shed is still present on the boundary. 3. It would also result in the landowner, both current and future, having to maintain the screening in perpetuity which would present issues regarding the policing of its maintenance, and placing the onus on the adjacent land owner to take civil action if the screening was not maintained at any point in the future. 4. Approval of the shed would be in direct conflict with the character of the development of properties in R5 zones which includes and expectation of separation of development between adjacent sites. This is ensured by the development control that requires 5m side setbacks which is designed to preserve open space and privacy. 5. The approval of the shed in its current location, especially considering the alternative options on the site, potentially sets a precedent in the zone that will result in a deterioration of this large lot rural character. (Expert Witness Statement: Mottram)
Council relies on the expert landscape evidence of Mr John Nichols. From a reading of his report it is apparent that he was not informed of the detail and species of the landscape screening proposed by the applicant. This is clear from the following statement in his report: I have been asked to provide a written statement regarding the suitability of planting a row of Lilli Pilli Trees to aid as a visual screen for a shed located at 3 Culverston Avenue, Denham Court on behalf of Council's representations to the Court. … I have been provided the following details in relation to the matter: … • The owner has proposed to plant a row of Lilli Pilli trees in the space between the shed and the fence, approx. 1m x 12m and will be providing a written statement from a landscape architect to support this. • Council will also be required to provide a written statement from an expert within Council regarding the suitability of planting these trees in that space, what kind of maintenance this tree requires to thrive, whether there will be sufficient space to grow and maintain these trees etc. (Expert Witness Statement: Nichols)
The statement indicates Mr Nichols has not visited the subject site.
His evidence on the suitability of the screen planting proposed by the applicant is summarised in the following: It is my opinion that whilst it may be possible to plant certain types of Lilli Pilli for screening purposes in such a narrow space, choosing a suitable species and a variety that will grow tall enough to adequately screen the shed may be impractical as such a tree will likely have potential to grow horizontally to a fair proportion of its height and therefore is likely to grow hard against the shed wall and beyond the property boundary to the adjacent property. Pruning trees into a hedge like form against the shed wall may be possible however this is likely to be required at least two or three times each year in order for trees to be maintained within the confines of the property boundary and underneath the wall height of the shed. … (Expert Witness Statement: Nichols)

Submissions

Mr Arch submits for the applicant that the "ultimate issue for determination is whether the building certificate, subject to the mitigation measures proposed by the applicant, is worthy of approval on a merit basis" (Applicant's submissions).
Relevantly Mr Arch argues that the issues central to that merit assessment are whether the proposal is consistent with the objectives of the zone and the setback controls in the DCP. He submits that this assessment can be determined "based on whether the proposal will result in adverse visual impacts to the adjoining property at 5 Culverston Avenue".
Relying on the evidence of Mr Sarich, Mr Arch concludes: … In the plainest terms, the shed will be effectively "hidden" or "concealed" behind the screen of landscaping, and will either be completely shielded from view, or at worst, be barely visible from the neighbouring property. In terms of planning outcome the shed will have far less visual impact on the neighbouring property than would a "compliant" shed that is not provided with the mitigating measures now proposed by the applicant. (Applicant's submissions).

Consideration

I accept the applicant's submissions at paragraph [17] on the legal framework for the consideration of the appeal.
The development as proposed by the applicant relies heavily on the provision of a landscape screen to ensure its acceptability and consistency with the relevant planning controls.
In general additional elements, required to resolve the impact of a development (in this case a shed) on visual amenity, should not replace appropriate site design, planning and good design.
Whilst in some circumstances the provision of landscaping is an appropriate solution, as identified in Super Studio v Waverley Council [2004] NSWLEC91 at [6] their long term effectiveness is uncertain: 6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens.
I accept the evidence of Mr Webster that it is possible to plant the nominated plants within the setback and that on his evidence the particular variety of Lilly Pilly recommended will be an "excellent screen plant which can easily reach a height of over 3 metres which will provide a soft and green screen when viewed from the neighbour's property". However with the benefit of a site inspection I accept that the achievement of such an outcome will rely on continued maintenance and growing conditions, both of which will be difficult in the circumstances arising in these proceedings.
In light of the proceeding and the planning principal accepted by the Court in Super Studio v Waverley Council I have placed reduced weight on the effectiveness of the screen planting in ameliorating the impact of the structure and in the assessment of the variation to the setback control.
In relation to the notional development assessment (Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276) under Sec. 4.15 of the Act, I prefer the evidence of Mr Mottram. I find that the setback variation should not be upheld and consent would not be granted. My reasoning is as follows: 1. I do not accept the submission of Mr Arch and the evidence of Mr Sarich that the assessment can be determined based on whether the proposal will result in adverse visual impacts to the adjoining property. I find that this approach defines the impacts of the structure and the variation of the control too narrowly. 2. I accept the evidence of Mr Mottram that the construction of the shed in its location is considered to impact of the ability of the neighbouring lot to achieve and maintain a high level of residential amenity. My own observations of the shed structure from the adjoining neighbour's property confirm its visual prominence which is exacerbated by its elevation in relation to their dwelling. 3. I am not satisfied that the ameliorative measures proposed by the applicant will offset or mitigate this impact. I accept the evidence of Mr Mottram that the provision of planting will not be sufficient to obviate the visual impact of the bulk and scale of the structure in close proximity to the common boundary. On this basis I conclude that the development is inconsistent with the intent of the zone to "ensure that a high level of residential amenity is achieved and maintained". 4. With the benefit of a site inspection and noting the size of the subject site I am satisfied that there are no site specific constraints that have been identified that mean that the current location of the shed is the only available location for such a structure. 5. I prefer evidence of Council and Mr Mottram that there is an impact on character that that arises from the sheds non-compliance with the setback controls and its positioning within the site. Based on the site inspection I am satisfied that the shed is visible in the streetscape and a variation to the setback controls is not warranted as the development is inconsistent with the following objective of the control: To establish a streetscape of a scale and sense of enclosure appropriate to the locality.
Pursuant to Section 22 the Court Act it is appropriate for the Court to strive to finalise the matters in dispute between the parties and avoid reliance on further proceedings or actions by the parties. 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
I accept the submission of the Council (refer paragraph [7]) that given my findings at paragraph [38] an appropriate means of achieving this is for the Court to amend the existing outstanding order to reflect the updated provisions of Act and allow additional time for the works required by the order to be completed (the demolition of the shed).
Given these findings it is appropriate that the parties have the opportunity to consider and provide any submissions on the timeframe appropriate for compliance with such an order.

Directions

The Court directs that: 1. In accordance with the findings in this judgement the parties are directed to lodge a settled draft order to give effect to the findings in this judgement. If the draft order accords with my determination I will make final orders in chambers 2. In the event of disagreement about the terms of the order I grant the parties liberty by way of motion to have the matter relisted before me.

Addendum made on 16 July 2018

The matter was relisted to finalise the matter on 16 July 2017. At that time the following orders were made:
The Court orders that: 1. Appeal 2017/00250803 for Building Certificate BC/65/2017 is dismissed; 2. The Order issued by the Respondent on 15 June 2017, pursuant to the then Section 121B of the Act, requiring the demolition or removal of the shed the subject of the Building Certificate in (1), is varied as follows: 1. the period for compliance with the Order is to be amended to 3 September 2018; 2. the existing slab is permitted to be retained; 3. the applicant is required to landscape the boundary with the property to the north for the length of the shed (to be demolished) to the satisfaction of Council; and 4. the filed expert reports and submissions are returned. …………………….. D M Dickson Commissioner of the Court

Amendments 16 July 2018 - Addendum - Final Orders. 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. Decision last updated: 16 July 2018

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (1)