Mardini v Hurstville City Council - [2003] NSWLEC 344 - NSWLEC 2003 case summary — Zoe

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Mardini v Hurstville City Council

[2003] NSWLEC 344

Land and Environment Court (NSW)|2003-12-12|Before: Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2003-12-12

Before

Mr P

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Introduction 1 This is an appeal pursuant to s96(2)(a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") concerning the refusal by Hurstville City Council of an application (No 20010492 (AD 48/03)) for modification of a condition of approval to a development consent to erect a dual occupancy development at 1 Tournay Street, Peakhurst ("the site"). 2 The proceedings were originally listed, pursuant to s34A of the Land and Environment Court Act 1979 ("the Court Act"), to be an on-site hearing to be conducted pursuant to s34B of that Act. However, these provisions only apply to appeals pursuant to s97 of the EP&A Act. 3 At the commencement of the gathering of the Court and the parties on-site, this difficulty was pointed out to the parties and it was proposed that the hearing be converted to a binding s34 conference. 4 Mr P Rigg, solicitor appearing for the council, indicated that he would not be able to obtain sufficiently prompt instructions to make this a realistic proposition. I therefore indicated that I proposed to deal with the matter as a conventional hearing pursuant to s36 of the Court Act and commence with an on-site view. 5 By agreement of Mr A Gallasso, counsel for the respondent, evidence from the effected neighbour was taken during the course of the view. The view comprised an inspection of 649 Forest Road; the streetscape of Tournay Street and the view of the roof line (as constructed) from the pedestrian laneway linking Tournay Street and Iraga Ave and from the cul-de-sac of Iraga Ave.

[2]

[10]

The s96(2)(a) test 28 The provisions of s96(2)(a) of the EP&A Act require me, inter alia, to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 29 It was submitted on behalf of the council that, in conformity with the decision of Bignold J in Moto Projects (No 2) Pty Ltd V North Sydney Council 106 LGERA 298, I should undertake a comparison between the development as constructed and that which would comply with Commissioner Brown's decision. 30 It was submitted that such a comparison needed to be both qualitative as well as quantitative. 31 In this regard, I have considered the principle from Bignold J's decision in Moto that: Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. 32 In the present instance, the nature of the totality of the construction on the site was able to be appreciated during the course of the view as, except for completion of the tiling of the contested roof section, the building is, to all material intents and purposes, completed. 33 Although the form of the relevant section of the roof is contested in these proceedings, I am satisfied that that section of the roof is not important, material or essential to the characterisation of the whole development. 34 Although I am required to assess the impact of this portion of the roof on the view from 649 Forest Road, the changes to the roof sought to be regularised by these proceedings do not change the consented development in any significant fashion which would take the proposed modification outside the scope of s96(2)(a). 35 I therefore declined to uphold this basis for refusal of the modification application. 36 As I had reached this conclusion as a consequence of what was observed during the course of the view, in order to expedite the proceedings I indicated this conclusion to the parties and informed them that I did not require evidence on this matter (although both legal representatives did address me on this point during closing submissions). These submissions have been taken into account in the above formalisation of the reasons behind my indication to the parties on this issue.

[11]

The views from 649 Forest Road 37 The internal layout of 649 Forest Road has an enclosed insect-meshed patio across approximately two-thirds of its southern side (the side facing the site). The floor of this patio is some 520mm lower than the main floor of the house. 38 Within the house, there are three rooms across the southern side. The eastern of these rooms is a children's bedroom; the middle of these rooms is presently the kitchen (and includes the access door for the patio) and the western of these rooms is presently part of the living area of the house. 39 The wall between the middle and western rooms has been partially demolished. 40 Mr Jacobs gave evidence that he was considering relocating the kitchen to the western end and turning the present kitchen area into a bedroom. He was not asked where the resultant access to the patio would be located but nothing in these proceedings turns on this. 41 Mr Jacobs also gave evidence that the family made extensive use of the patio, particularly during warmer periods of the year, for informal dining and for playing with the family's young children. 42 Mr Jacobs was not the owner of these premises at the time of the hearing before Commissioner Brown. In this context, it was also his evidence that the roof which is the subject of these proceedings had been in place to its present extent that the time he had purchased the property. However, he indicated that he did then consider that the subject roof obstructed his view but he had assumed, at the time of his purchase, that it had been constructed lawfully. I do not consider he should suffer any adverse inference for this as he did object at some time (the timing of making this not being the subject of evidence) after becoming aware of the correct legal position. 43 In the proceedings before Commissioner Brown, Commissioner Brown noted that Ms Ford, the then owner of 649 Forest Road, gave evidence centred around the negative impact the loss of the view would have on the lifestyle and enjoyment of her property. She indicated that the rear portion of the house, including the patio, was used regularly because of the impacts of heavy traffic associated with the Forest Road at the front of the house. 44 Although Mr Jacobs was not questioned on this, there was nothing in his evidence or from what was observed during the view which would cast doubt on the continuing validity of this position.

[15]

Process of assessment of the views 58 There are a number of general propositions concerning views which are relevant in these proceedings. 59 The first of these is that views from living areas and private open spaces off living areas are more valuable than from kitchens, and from kitchens more valuable than from bedrooms. 60 In present context, I note the evidence of Mr Jacobs concerning the possible relocation of the kitchen to the western end of the building. Although he expressed some uncertainty as to whether this would occur, I have undertaken my assessment in this appeal on the assumption that it would, in fact, so occur. I have reached my conclusions concerning view loss on this basis. 61 I accept Mr Jacobs' evidence that the screen enclosed rear patio is an important living area for his family. 62 In context of the location of the house on a busy main road with the addition of the more attractive (although southerly) aspect from the patio, it is not unreasonable to expect that this area would be used, significantly, for family activities consistent with his evidence. 63 Whilst the present configuration of the patio might not be amenable to year round use, there is no reason not to accept Mr Jacobs evidence as to the intensity of its use during the warmer months. 64 The view from the children's bedroom is a view which is filtered or obstructed by vegetation. These are less valuable than clear unobstructed views. 65 The view which would have been enjoyed from the present kitchen (future bedroom) would have been similar to that from the patio but, as a consequence of the higher perspective, including more of the district foreground. 66 However, because this view is assumed to be from a room which will be a bedroom, at some time in the near future, the impact on it has a lesser significance. 67 The assumed relocation of the kitchen to the western end of the building will leave that room with a view to the east filtered or obstructed by vegetation or the roof which is the subject of this application. 68 However, the kitchen will also enjoy some skyline views across the rear yard of the adjacent allotment fronting Forest Road and across the roof lines of the houses on the other side of Tournay Street. Although the extent of this view might be reduced by some future redevelopment of this adjacent site, this view could not be lost entirely. Similarly, because of the slope in Tournay Street, redevelopment of the houses to the west of that street, in the foreground of this view, would be unlikely to remove this aspect entirely.

[16]

Conclusions concerning view loss 69 Given these factual conclusions concerning the views from the four elements of the dwelling at 649 Forest Road, at its rear, two questions arise to be determined. 70 The first of these is whether or not the impact on any or all of these views is sufficient to warrant an assumption that minimisation of that loss would be an appropriate requirement under general environmental and planning considerations pursuant to s79C(b) and (d) of the EP&A Act? 71 If the answer to this question is "yes" with respect to any of the four view elements discussed above, the second question which arises is whether the desired development outcome, being a proposal which is within applicable numerical controls, can be achieved in a way that has less impact on views? 72 For the reasons which I have outlined above concerning each of the four built elements across the southern side of the dwelling at 649 Forest Road, I am satisfied that the view loss occasioned by the roof form which is the subject of this application is not unreasonable for the children's bedroom; for the bedroom which is proposed to be located in the present kitchen and for the kitchen when it is relocated to the western end of this side of the building. 73 However, in light of Mr Jacobs evidence concerning the use of the patio reinforced by the earlier evidence by the former owner concerning its use because of traffic noise, I am satisfied that the patio is, at least during the warmer months, a significant primary living area for the premises at 649 Forest Road. 74 I am also satisfied that the qualitative impact on this view is significant. A simple comparison between Exhibit 4 and the roof as constructed makes this conclusion compelling notwithstanding the opinion of Mr Standley that this view should be seen as part of a broader range of views which encompasses other elements such as the proximate vegetation to the east. Although these might well be pleasant, the expansive district and horizon perspective was undoubtably the single element which gave character and depth to the view from this patio. 75 I am therefore satisfied that the answer to the first question which I have posed above is "yes". 76 Having reached this conclusion, I turn to consider the issue of whether a complying development, if constructed in some other fashion, could have been achieved in a way which would have less impact on this view. 77 As noted earlier in these reasons, it was the uncontradicted evidence of Mr Standley that compliance with Commissioner Brown's condition 6 raised no issues of construction or engineering impossibility. I am, therefore, satisfied that the applicant in these proceedings could have constructed the roof in accordance with Commissioner Brown's condition 6. 78 Given the obvious and significant impact on the view from the rear patio of 649 Forest Road that the additional 1.9m of constructed roof height above RL33.90 has had, I am also satisfied that it is reasonable for the protection of the views from 649 Forest Road that the applicant should be required to reconstruct the roof in compliance with Commissioner Brown's condition 6.