Midvena Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2021-03-30

Judgment

COMMISSIONER: These two appeals concern the construction of a sandstone clad wall containing a letter box on a road reserve owned by Northern Beaches Council ("the Council") and adjacent to 173-175 Riverview Road, Avalon Beach. The wall is not yet completely constructed, and it is adjacent to stairs that have also been constructed by the applicant, Midvena Pty Ltd ("Midvena") on land within the road reserve. Midvena is the owner of 173-175 Riverview Road, which benefits from a development consent granted on 19 December 2014 for the construction of a dwelling house, swimming pool and driveway. Midvena seeks to modify the development consent to incorporate the sandstone clad wall containing the letter box ("mailbox wall"), which includes carrying out some works to reduce its size and complete its construction. In proceedings 2020/314961, Midvena appeals against the Council's refusal of its application to modify the consent ("the modification appeal"). Midvena also seeks a building information certificate for the mailbox wall, and in proceedings 2020/31460, appeals against the Council's refusal of the building information certificate ("the certificate appeal").
The modification appeal was required to be listed for a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). In the certificate appeal, a conciliation conference was arranged pursuant to s 34 of the LEC Act. The conciliation conferences were held together on 29 March 2021. On 30 March 2021, the conciliation conference in both appeals was terminated and the appeals proceeded to a hearing forthwith. In the modification appeal that occurred pursuant to s 34AA(2)(b)(i) of the LEC Act, and in the certificate appeal the parties consented to me disposing of the proceedings pursuant to s 34(4)(b)(i).

The site and the locality

The dwelling site to which the mailbox wall relates is 173-175 Riverview Road, Avalon Beach, which are Lots 5 and 6 of DP 236812. The dwelling site slopes steeply away from the road surface of Riverview Road, with a fall of around 29.4m from the street frontage to the mean high water mark. Adjacent to the dwelling site is land that is community land under the Local Government Act 1993, known as Shore Brace Reserve and legally described as Lot 501 in DP 1119052.
The dwelling site has a double frontage to Riverview Road, of 35.56m in total length. However, frontage is irregular, with 17.5m frontage aligned with Riverview Road, and an angled frontage of 18m towards where the dwelling site adjoins Shore Brace Reserve. The driveway crossing of the approved dwelling on the dwelling site, which is located on the southern side of the dwelling site, therefore protrudes quite significantly into the road reserve. This is shown in Figure 4.
An inspection of the mailbox wall, the dwelling site, Shore Brace Reserve and the surrounds was carried out. The stairs adjacent to the mailbox wall were recently constructed, and connect with stairs located on Shore Brace Reserve that have been in place for some time, which create a pedestrian pathway that provides private access to the dwelling site but also connects the road reserve of Riverview Road to Shore Brace Reserve. This pedestrian pathway is largely within Shore Brace Reserve, except for its lower portion, where it straddles both Shore Brace Reserve and the dwelling site, and provides access to the lower levels of the dwelling site. The pathway ends around 12m short of the foreshore area and does not provide any formal public access to the foreshore. On the day of the site inspection, the public reserve was overgrown with scrubs and was not traversable on foot to the water from the bottom of the pathway. The only means by which access to the foreshore could be obtained from the pathway would be to trespass on the dwelling site, on which a pathway leads to a private boat ramp.
The topography along Riverview Road is such that dwellings on its western side are on steeply sloping allotments that have water frontage to Pittwater, with the dwellings built below the road level. As a result of its narrow width and the topography, a number of properties on that side of Riverview Road have used part of the road reserve for either access to their properties, front fencing, letterboxes or off-road parking. This includes:

Stand alone letterboxes at numbers 165, 181, 177, 179, 183, 189, 191, 203 and 211 Riverview Road.
Two timber structures providing shelter for entry steps and inclinator at 169 Riverview Road, which protrude into the road reserve by up to 6.3m.
A gravel parking bay and letterbox at 185 Riverview Road.
A concrete parking bay at 191 Riverview Road.
Front fences and bin store areas at 187 and 193 Riverview Road.
A stone letterbox and pedestrian stairs at 207 Riverview Road, which is up to around 2m in height.

The history concerning the stairs and the recent works

The pathway and stairs within Shore Brace Reserve have been in existence for some time (prior to 2000), and are shown in a 2014 survey as providing access to the former dwelling on the dwelling site, the rear yard, pool and boat shed. In a report to an ordinary council meeting (Ex 3 p 56), the background information discloses that the pathway was an encroachment that the former Pittwater Council sought to regularise with a lease under the Roads Act 1993, but "the former property owner declined to proceed with the lease, and the removal of the encroachment was deemed as an unnecessary expense given Council would have had to fund the construction of new stormwater piping to control stormwater" (Ex 3 p 56).
The recent works to the pathway, which included the construction of the mailbox wall, include removing some of the existing stairs within the road reserve and constructing the stairs that are adjacent to the mailbox wall, and constructing the concrete retaining wall that is parallel to Riverview Road. The concrete retaining wall is 8.1m long and 1-2m high.
On 2 October 2018, the Council issued a stop work order pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which required Midvena to stop work on the Council's road reserve. The order observed that works had been undertaken, including the construction of the concrete retaining wall, the stone stairs and the stone clad mailbox wall.
Subsequently, Midvena made an application to carry out works within the road reserve, pursuant to s 139 of the Roads Act. That application covered the mailbox wall and the sandstone stairs. The Council approved the application on 22 October 2019, subject to a number of conditions, including the creation of a positive covenant, the reduction of the size of the mailbox wall, and the removal of the letterbox from within the mailbox wall and relocation to the north of the driveway. There is no evidence that this approval has been acted upon, or that any of the conditions have been met.
On 12 November 2020 the Council issued an order pursuant to order 29 of s 124 of the Local Government Act, which requires the partial demolition of the mailbox wall, including the removal of the letterbox within the wall. The Council has agreed not to act upon the order pending the determination of these appeals.

Expert evidence on the appeals

Expert opinion evidence was given by Mr Jeremy Swan, a consultant town planner engaged by Midvena, and Mr Steven Layman, a consultant town planner engaged by the Council. They disagree on each of the matters raised in the Council's Statements of Facts and Contentions. Their evidence is considered further below.

The modification application

The development consent, which was granted by the Court in accordance with an agreement between Midvena and the former Pittwater Council, was for the construction of a dwelling house, a swimming pool and driveway. As set out above, the configuration of the approved dwelling and the dwelling site is such that the driveway protrudes into the road reserve by around 9m. The development consent did not incorporate a letterbox, but it is clear from the configuration of the dwelling site that any letterbox in close proximity to the driveway will need to be constructed within the road reserve.
As set out above, the modification application seeks to modify the consent to incorporate a modified version of the mailbox wall ("proposed mailbox wall"). The modification application also seeks consent under s 138-139 of the Roads Act for works on the road reserve.

The planning controls

Whilst the form lodged with the Council for the modification application indicated that the application was made pursuant to s 4.55 of the EPA Act, it is instead made pursuant to s 4.56.
In considering the appeal, the Court exercises the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.56 of the EPA Act (see s 39 of the LEC Act).
Clause 115(1)(h) of the Environmental Planning and Assessment Regulation 2000 requires that, if the applicant is not the owner of the land, the application to modify a development consent be accompanied by a statement that the owner of the land consents to the making of the application. The Council is the owner of the land and no such written consent is provided. Although the absence of owner's consent is raised by the Council as a contention on the appeal, both parties agree that the power of the Court on appeal, pursuant to s 39(2) of the LEC Act, extends to the exercising the function of the Council as the owner of the land and therefore to the granting of owner's consent.
Section 4.56(1) provides as follows: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Section 4.56(1)(a) requires the Court, in exercising the functions of the consent authority, to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted".
Section 4.56(1)(d) requires that the Court consider any submissions made concerning the proposed modification. A number of submissions were received in response to the notification of the modification application, and the issues raised by them are summarised below.
Subsection (1A) of s 4.56 then provides that: In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
The dwelling site, and the road, is zoned E4 Environmental Living under the Pittwater Local Environmental Plan 2014 ("PLEP 2014"). Development for the purposes of a dwelling house is permissible with consent in the E4 zone.
Pittwater 21 Development Control Plan ("PDCP") also applies. Part B6.1 concerns access driveways and works on the public road reserve. It contains the following general controls: "Ancillary Structures within the Road Reserve Ancillary structures within the Road Reserve will be supported for the purposes of structurally supporting the access driveway only. Ancillary structures include retaining walls. Encroachment into the road reserve is to be minimised. Where retaining walls and structures are visible from a public place, preference is given to the use of textured finishes of dark earthy tones or sandstone-like finishes. All structural elements within the Road Reserve must be certified by a Structural Engineer. In addition, where the land is identified on the Landslip Hazard Map, the design of all structural elements must satisfy the Landslip Hazard Controls."
The outcomes of Part B6.1 are stated as follows: "Outcomes Safe and convenient access. Adverse visual impact of driveways is reduced. Pedestrian safety. An effective road drainage system. Maximise the retention of trees and native vegetation in the road reserve."
Part C1.24 of the PDCP concerns landscaping and infrastructure on the public road reserve for the purpose of dwelling houses. Contrary to a submission made by Midvena, it applies to development for the purposes for dwelling houses, including the proposed mailbox wall. It includes the following controls: "Dwelling Houses, Secondary Dwellings and Dual Occupancy The location of new landscaping (street trees) is not to hinder the future construction of a 1.5m wide footpath in location to be nominated by Council and is subject to a Section 139 approval from Council."
The outcomes in C1.24 are: "Desirable character of the Pittwater streetscape. (S) Consistency in the design and construction of landscape works in the road reserve. (En)"
Further, D1.8 of the PDCP requires a setback of 6.5m to the front building line, and states that "Built structures (including swimming pools), other than driveways, fences and retaining walls are not permitted within the front building setback." It provides the following variation for steeply sloping sites: "On steeply sloping or constrained sites, reduced or nil setbacks for carparking structures and spaces may be considered, however all other structures on the site must satisfy or exceed the minimum building line applicable."
The provisions of D1.8 have the following stated outcomes: "To achieve the desired future character of the Locality. (S) The amenity of residential development adjoining a main road is maintained. (S) Vegetation is retained and enhanced to visually reduce the built form. (En) Vehicle manoeuvring in a forward direction is facilitated. (S) To encourage attractive street frontages and improve pedestrian amenity. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment."

Roads Act provisions

In exercising the functions of the consent authority on appeal, the power of the Court pursuant to s 39(2) of the LEC Act extends to considering the application under s 138 of the Roads Act (see Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) (2012) 211 LGERA 81; [2012] NSWLEC 53). Part 9, Division 3 of the Roads Act arises in the context of considering that application. Sections 138-139 are as follows: 138 Works and structures (1) A person must not - (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty - 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of TfNSW. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, TfNSW must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section. 139 Nature of consent (1) A consent under this Division - (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. (2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located - (a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or (b) in such other position as the roads authority may direct. (3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

Submissions by residents

The modification application was publicly notified, and notified to adjoining and surrounding land owners and occupiers. Submissions were received from 27 residents in response to the notification. A number of residents also made written submissions to the Court concerning the modification application, and two local residents spoke at the site inspection. The submissions raised the following issues:

The privatisation of public land, and the privatisation of the access to the foreshore area.
Development consent cannot be granted retrospectively to works already carried out.
The encroachment of the stairs, the mailbox wall and the concrete retaining wall into public land.
The works took place unlawfully, in conjunction with landscaping of the public land.
The works are inconsistent with the Council's resolution of October 2019 requiring the cut back in the wall and the relocation of the letterbox.
Potential ecological impacts on the remnant spotted gum forest on Shore Brace Reserve.
The mailbox wall will create an undesirable precedent for other similar structures.
The mailbox wall obstructs the footpath.
There are alternative locations available for the mailbox wall, and its current location has no public benefit.

Given that the modification application concerns only the proposed mailbox wall, which is already in situ (although is to be modified), there is no impact on the spotted gum forest. Further, the fact that works have been carried out unlawfully is not relevant to the consideration of the modification application, although the existence of the mailbox wall in its current state may be relevant to the assessment of the impacts of the modification application (see Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [38]).

The Council's position on the modification application

The Council raises three main grounds of substance, upon which it says that the modification application should be refused.
The first ground advanced by the Council is that the site is not suitable for the development, in accordance with the consideration required by s 4.15(1)(c) of the EPA Act. This ground is advanced for a number of reasons. The Council's position is that the location of the proposed mailbox wall, which sandwiches between it and the private driveway a set of stairs to the public reserve, has the practical effect of privatising the entrance to the public reserve. In circumstances where the dwelling site does not have the benefit of any legal right of access over Shore Brace Reserve, and where the mailbox and numbering will signal an entry to the dwelling, the Council submits that it is not an appropriate location for the proposed mailbox wall, and that there is a reasonable alternative location for a letterbox on the northern side of the driveway, which would comply with the Australian Standard for Mailboxes (AS 4253:2019) and would not have the effect of privatising access to public land.
The Council points out that it does not submit that letterboxes cannot be located on the road reserve, and notes that the northern location of a letterbox would still be on the road reserve. Further, the Council submits that the proposed mailbox wall differs from the other examples within Riverview Road due to its location at the entrance of a public reserve.
This first ground is supported by the evidence of Mr Layman, who opines that the development compromises pedestrian movement as the associated retaining wall suggests visually, to the casual observer, that there is no safe way to access Shore Brace Reserve, other than the steps adjoining the mailbox wall. He opines that the scale and design of the proposed mailbox wall suggest that the steps are privately owned, and that the size and location of the proposed mailbox wall appears to privatise the public road reserve. His evidence is that this is not ameliorated by the changes to the proposed mailbox wall. Specifically, he opines that: "The sandstone letter box structure, adjoining steps and retaining wall determine the point of public access and by reason of their design visually suggest to the general public that they are private. Members of the public would not know if by using the steps, they were trespassing or not."
Consistent with the submissions made by the Council, Mr Layman's evidence is also that "the restriction of movement from Riverview Road to Shore Brace is a distinguishing feature of the development from other letter boxes and pedestrian access structures in Riverview Road" (Ex 4 p 5). He opines that the development therefore constrains potential future works to provide public access to Shore Brace Reserve and the foreshore within.
Similarly, and consistent with the Council's position, Mr Layman opines that there are reasonable alternatives for the location of the letterbox, including a structure smaller in size and located north of the existing driveway.
The second ground advanced by the Council as a basis upon which the modification application should be refused is that the proposed mailbox wall does not comply with the provisions of the PDCP concerning encroachments into the road reserve. The Council relies on the evidence of Mr Layman that, contrary to B6.1 of the PDCP, the scale of the proposed mailbox wall does not minimise the encroachment into the road reserve, and is not for the purpose of supporting the driveway. The Council relies on his evidence that the location of the proposed mailbox wall would limit the future construction of a 1.5m wide footpath, contrary to C1.24 of the PDCP, and that the proposed mailbox wall is contrary to D1.8 of the PDCP as it is a structure that is not permitted in a front setback and does not appropriately respond to, reinforce and sensitively relate to the spatial characteristics of the existing urban environment.
The third ground that the Council advances is that the grant of the modification application is not in the public interest. The Council relies on the evidence of Mr Layman that the privatisation of public land and obstruction of the public domain is not in the public interest, particularly when an alternative location for a letterbox is available on the northern side of the driveway.
Further, the Council submits that the Court ought to refuse to exercise the discretion to grant owner's consent in circumstances where the road reserve to which the application relates is not directly in front of the dwelling site, where there is road reserve in front of the dwelling that could be used to accommodate a mailbox, where the structure will result in alienation of the entrance to a public reserve without legal right of access over the public reserve, and where such consent would be futile in circumstances where the Council maintains a power to revoke an approval under the Roads Act.

Midvena's position that the modification should be allowed

Contrary to the position of the Council, Midvena's position is that the site is suitable for the proposed mailbox wall and the proposed mailbox wall meets the provisions of the PDCP.
Midvena submits that the Council's position, in all respects, is based on a fallacy that the stairs provide access to Shore Brace Reserve, in circumstances where the stairs do not provide access to the foreshore area, there are no plans by the Council to provide such access, and the stairs in fact provide private access to the dwelling site. Midvena submits that the Council's arguments in this regard create a "false ideological debate" concerning privatisation.
Midvena makes a number of submissions in support of its position that the site is suitable for the proposed mailbox wall. Firstly, Midvena submits that the proposed mailbox wall does not obstruct the public domain as it aligns with the bus stop to the north of the driveway and provides a reasonable space for pedestrians to move along Riverview Road. Secondly, Midvena submits that the "limited space" taken by the mailbox wall does not privatise the road reserve, as there is not intended to be any access to the foreshore through Shore Brace Reserve. In its written submissions, Midvena points to ancillary development on the opposite side of the road, which is says has a more significant impact on pedestrian movement. Thirdly, Midvena submits that there are no reasonable alternatives for the location of the letterbox as the size of the verge to the north of the driveway and the existence of the bus stop make it unsuitable for a letterbox. Fourthly, Midvena submits that the drop in levels adjacent to the stairs makes it imperative that a protective barrier such as the wall structure is in place to protect vehicle and pedestrian movement.
The evidence of Mr Swan, which Midvena relies upon in support of its position that the site is suitable for the proposed mailbox wall, is that the structure is sufficiently set back from the edge of the bitumen (by around 1.5m) to allow pedestrian access, and that once modified, will align with the kerb of the existing and approved driveway. Consistent with Midvena's submission, Mr Swan's evidence is that the proposed mailbox wall is the most appropriate location for a letterbox, and "assists with protecting vehicles and pedestrians from the significant drop in land to the north of the retaining wall where the steps have been formed" (Ex 4 p 6). Further, he opines that the development does not privatise access to Shore Brace Reserve, as access was always available to the reserve by the use of the stairs that access the dwelling site, and this will remain. He points out that without the stairs to access the dwelling site, no pedestrian access would be available to Shore Brace Reserve.
Midvena also makes a number of submissions in support of its position that the proposed mailbox wall meets the requirements and/or objectives of the PDCP. In relation to clause B6.1 of the PDCP, Midvena submits that the proposed mailbox wall is consistent with the outcomes relating to safety and access on the basis of its submission, summarised above, that it protects vehicles and pedestrians from the drop in the land. Midvena also submits that the mailbox wall supports pedestrian access to the dwelling site, and that its encroachment into the road reserve is reasonable in the circumstances. Consistent with one of the controls in B6.1, Midvena relies on the certification of the structural engineer which is attached to the joint report (Ex 4 Attachment C). The evidence of Mr Swan concerning clause B6.1 is that the proposed mailbox wall satisfies the outcomes of the clause by providing safe and convenient access on a steep site, by ensuring ongoing pedestrian safety, and by avoiding impacts on street trees and road drainage.
In relation to clause C1.24 of the PDCP, Midvena submits that the letterbox structure does not privatise part of the streetscape or compromise the location of a future footpath. Further, the evidence of Mr Swan is that the proposed mailbox wall is consistent with the outcomes of clause C1.24 on the basis that its design and sandstone cladding is consistent with the desired future character of the Pittwater streetscape, its size is consistent with the works at 207 Riverview Road, and the use of the road reserve for letterboxes are clearly contemplated by the "Technical Reports and Supporting Information" set out under clause C1.24.
Further, in relation to clause D1.8 of the PDCP, Midvena submits that the proposed mailbox wall is consistent with the outcomes of D1.8, as it provides an attractive street frontage and retains pedestrian amenity by providing a protective function where there is a drop toward the stairs. Consistent with this submission, the evidence of Mr Swan is that the proposed mailbox wall responds, reinforces and sensitively relates to the spatial characteristics of the environment, improves pedestrian amenity, and is consistent with the approved structures within the road reserve.
Further, in support of the proposed mailbox wall, Midvena submits that the design of the letterbox structure is consistent with other sandstone letterbox structures along Riverview Road, and that there is a pattern of approvals of structures within the road reserve. This is supported by the evidence of Mr Swan, who opines that the existing structures within or abutting the road reserve within Riverview Road establish a character of development within the road reserve which is now characteristic of Riverview Road. Mr Swan opines that the proposed mailbox wall is similar in design to a sandstone clad structure containing a letterbox at 207 Riverview Road, which is greater in height than the proposed mailbox wall and similarly adjoins stairs that access a dwelling.
Finally, Midvena submits that the public interest is in favour of the grant of the modification application in circumstances where the proposed mailbox wall is "generally consistent with the planning controls" and where it provides a protective function for the steep drop between the roadside and the stairs. On the issue of owners consent, it submits that there is no barrier to the Court granting the landowner's consent and that "it is of no moment at all".

The modification application should be refused

Whilst I accept Midvena's position that the proposed mailbox wall does not impede the movement of pedestrians along the road reserve, and that its sandstone cladding design is consistent with the design of other encroachments into the road reserve, I consider that the proposed mailbox wall is unacceptable, for the following reasons.
Firstly, contrary to the controls in clause B6.1 of the PDCP, the proposed mailbox wall does not minimise the encroachment into the road reserve. I accept the evidence of Mr Layman that its design and location results in an encroachment of around 9.5m into the road reserve, with a length of 3.3m and its nearest point 6.21m from the front boundary of 173-175 Riverview Road and at its nearest point 5.21m from the front boundary of Shore Brace Reserve.
Due to the shape of the dwelling site frontage and the topography of the land, it is almost inevitable that any letterbox located in close proximity to the driveway will encroach on the road reserve. In so locating the letterbox and designing any structure to house the letterbox, clause B6.1 of the PDCP requires that, for ancillary structures within the road reserve, "encroachment into the road reserve is to be minimised". As such, its location and design is to be such that it minimises the encroachment into the road reserve. The proposed mailbox wall design does not do so. Instead, it is located such that the extent the encroachment into the road reserve is 9.5m from the boundary of the dwelling site, such that it is not in a location that minimises the extent of the encroachment. Further, it is designed such that its horizontal and vertical size far exceeds what is required to house the letterbox, with a length of 3.3m and a height of up to around 2.7m at the lowest point of the stairs. Accordingly, its design does not minimise the horizontal and vertical extent of the encroaching structure.
Secondly, the proposed mailbox wall is unacceptable in circumstances where its location and design create an appearance that the adjacent stairs, which provide access to a public reserve, are exclusively for private use. I accept the position of the Council and the evidence of Mr Layman that this means that the site is not suitable for the proposed mailbox wall, and Mr Layman's evidence that "The sandstone letter box structure, adjoining steps and retaining wall determine the point of public access and by reason of their design visually suggest to the general public that they are private." That is, the stairs are the one point of access to the public reserve, and by the design of the proposed mailbox wall the stairs appear private. Specifically, the presence of the letterbox aperture within the proposed mailbox wall, the number that will appear below the aperture, and the location of the driveway and its balustrading on the other side of the stairs, all give the appearance that the adjoining stairs are exclusively for private access to the corresponding dwelling. Given that the stairs provide access to the public reserve, Shore Brace Reserve, and there is no legal right of access over Shore Brace Reserve to the dwelling site, it is not acceptable to put in place a structure that gives the appearance, to a casual observer, that those stairs are for private access to the dwelling site.
Contrary to Midvena's assertion, the Council's arguments on this point are not a "false ideological" position. It does not matter that there is currently no public access from the stairs to the foreshore area of Shore Brace Reserve. Shore Brace Reserve is nevertheless a public reserve, and as such there is opportunity for the Council to make it traversable and/or partially cleared for recreation. Accordingly, in circumstances where there is no legal right of access over Shore Brace Reserve to the dwelling site, it is not acceptable to have a structure in place that creates an appearance that the access stairs are for private use.
For those two reasons, I find that the modification application should be refused.
I make some additional observations with respect to the first reason above at [57]-[58], which concerns the non-compliance of the proposed mailbox wall with the control in B6.1 of the PDCP to minimise an encroachment in the road reserve. Whilst s 4.15(3A)(b) of the EPA Act does not strictly apply to a modification application, I acknowledge that it is appropriate to afford some flexibility in the application of development control provisions, similar to the approach that would apply to a development application pursuant to s 4.15(3A)(b). Such an approach also reflects the principles in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 that a relevant provision in a development control plan is entitled to significant weight but is not determinative. Consistent with such a flexible approach, Mr Swan's evidence was directed to the proposed mailbox wall meeting the outcomes of B6.1 of the PDCP rather than to questions of compliance with the controls. In considering the control in B6.1 of the PDCP that "Encroachment into the road reserve is to be minimised", there are no objectives specified but one of the relevant outcomes is "safe and convenient access", which I consider to include access to property across the road reserve. As set out above in [59], I accept the evidence of Mr Layman that the proposed mailbox wall visually suggests to the general public the stairs are private, and I accept his evidence that, therefore, convenient access by the public to Shore Brace Reserve is adversely impacted by the proposed mailbox wall as it appears to privatise the stairs which provide that access to the reserve. Accordingly, even in taking a flexible approach and considering whether the objects of B6.1 are met notwithstanding the non-compliance with the control to minimise the encroachment, I am not satisfied that the proposed mailbox wall satisfies the outcomes of B6.1 of the PDCP for "safe and convenient access" in circumstances where it creates an appearance that the access stairs are private in nature.
Although the above reasons form a sufficient basis upon which I have determined to refuse the modification application, I am additionally not persuaded by Midvena's argument that there are no other reasonable locations for the letterbox or that the proposed mailbox wall is necessary in the existing location for a protective purpose. It is readily apparent, from the site inspection and the survey, that there is sufficient space available on the northern side of the driveway, adequately distanced from the bus stop, for a letterbox that has the dimensions and features specified by the Australian Standard for Mailboxes. There is no evidence, either by expert evidence or otherwise, to support the assertion, made by Midvena in the Statement of Facts and Contentions in Reply, that it is "unsuitable for Aust Post employees to access a letterbox in this location". Similarly, there is no evidence that a wall of the height of the proposed mailbox wall is required for safety to protect pedestrians and vehicles from the drop to the stairs. Mr Swan's evidence is constrained to an opinion that the existing location is the "best alternative", and that its protective purpose is "helpful", but there is no evidence that a wall of the height of the proposed mailbox wall is required to serve that protective function. Nor am I persuaded that the existence of other encroaching structures within the road reserve of Riverview Road makes the proposed mailbox wall acceptable in light of my findings expressed at [56]-[60].

The building information certificate appeal

The building information certificate application describes the structures for which a certificate is sought as being "Construction of mailbox". There are no plans depicting the precise extent of the structure for which the building information certificate is sought, although Midvena seeks orders that, once the works have been carried out to the mailbox wall to reflect the proposed mailbox wall, the Council be directed to issue a building information certificate.

Power of the Court on appeal

Section 6.25 of the EPA Act sets out the circumstances in which a building information certificate is to be issued, and the effect of such a certificate. It provides: (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). (3) A building information certificate operates to prevent the council - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. (5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017). (6) An order or proceeding that is made or taken in contravention of this section is of no effect.
Pursuant to s 39 of the LEC Act, the Court exercises the functions of the Council, in determining the building information certificate application. The issue of landowners consent also arises on this application, as s 6.22 of the EPA Act permits a non-owner to apply for a certificate only "with the consent of the owner of that land". The parties agree that, pursuant to s 39(2) of the LEC Act, the Court's power on the certificate appeal extends to the grant of landowner's consent in the same way it does on the modification appeal.
In addition to having the functions and discretions of the Council in determining the building information certificate application, the Court has broad discretionary power on appeal, pursuant to s 8.25(3) of the EPA Act 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 parties' positions on the certificate appeal

Midvena submits that even if the modification application is refused, the Court can still direct the issue of the building information certificate for the mailbox wall that has been constructed. Midvena submits that, in circumstances where it would be disproportionate and unnecessary to require the demolition of the mailbox wall, a building information certificate ought to be issued.
The Council raises a number of points in support of its position that a building information certificate should not be issued. Firstly, the Council submits that the issue of the development control order demonstrates that the Council requires the partial demolition of the structure, which encroaches onto its land. Secondly, the Council says that a building information certificate would prevent the Council from maintaining the road reserve and the entrance to the public reserve in a way that does not privatise the area. Thirdly, the Council submits that the Court ought not be satisfied that the engineering certification of the structural adequacy of the mailbox wall is adequate. Fourthly, the Council points out that the site inspection revealed that the structure has a retaining wall keyed into it, which requires further works to be carried out when having regard to the certification (Ex 5). Fifthly, the Council points out that there are no plans that depict the structure for which the building information certificate is sought.
Finally, the Council points out that if a building information certificate is issued, it will prevent the Council from ordering the demolition of the structure or taking proceedings against Midvena for the encroachment, which is contrary to its power to revoke any Roads Act approval and creates issues should the Council wish to carry out works in the road reserve.

The certificate appeal should be dismissed

The certificate appeal should be dismissed, for a number of reasons. First, there are no plans setting what structures are sought to be the subject of the building information certificate in the event that the modification application is refused. In circumstances where I have determined to refuse the modification application, and the only plans before the Court are for the proposed mailbox wall, I do not consider it appropriate for a building information certificate to be issued for the existing structure.
Second, it is clear that the Council is entitled to take proceedings in relation to the encroachment by the mailbox wall into the road reserve. This is clearly a matter discernible that precludes the issue of the building information certificate in accordance with s 6.25(1)(a)(iii) of the EPA Act.
Third, the reasons upon which I have determined that the modification application should be refused, form the basis upon which the Court's discretion ought not be exercised to direct the Council to issue a building information certificate. That is, the fact that the mailbox wall, either as constructed or as proposed, does not minimise encroachment and creates an appearance of a private entrance, means that the discretion under s 8.25(3) of the EPA Act should not be exercised to direct the Council to issue a building information certificate.
For those reasons, the certificate appeal should be refused.

The final orders

In proceedings 2020/314960, the Court orders that: 1. The appeal is dismissed. 2. The building information certification application BC2020/0099 in relation to the mailbox structure located on the road reserve adjacent to 173-175 Riverview Road, Avalon Beach, is refused. 3. The exhibits are returned, except for exhibits B, D, E, F and G,
In proceedings 2020/314961, the Court orders that: 1. The appeal is dismissed. 2. The application to modify the development consent 2020/0332 for the construction of the dwelling house at 173-175 Riverview Road, Avalon Beach, to incorporate a mailbox structure on the adjacent road reserve, is refused.

Amendments 03 May 2021 - Corrected typographical error at [58]. Added the word "not" to final sentence so the sentence reads: "Accordingly, its design does not minimise the horizontal and vertical extent of the encroaching structure." 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: 03 May 2021

(2006) 144 LGERA 408

(2001) 115 LGERA 373

At a glance

Court

Decision date

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Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (6)