Trenwith & Ors v Sutherland Shire Council & Anor

APPLICANTS Mr A Pickles (Barrister) SOLICITORS Macedone Christie Willis LEGAL REPRESENTATIVES: FIRST RESPONDENT Submitting Appearance

SECOND RESPONDENT In Person

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40937 of 2004 Trenwith & Ors v Sutherland Shire Council & Anor (No 2)

JUDGMENT ON FINAL ORDERS 1 Her Honour: I gave a judgment in this matter on 29 August 2005 (Trenwith & Ors v Sutherland Shire Council and Anor [2005] NSWLEC 143) where I made a declaration that the structure erected on the Second Respondent's land did not have development consent. I said that I would not make final orders for demolition at that stage but allow time for the parties to confer and reach agreement on possible alternative orders.

2 The structure described in the development application is a pergola but as built presents more as a large outdoor room in which a large portable spa has been located. It is approximately 60m2 built on a concrete slab which is supported by 18 concrete piers of varying heights up to approximately 3m. 3 In my earlier judgment I found that several elements had been erected without development consent, namely the concrete piers below the slab and the curved roof, extra colourbond rails and posts, installation of flyscreens and doors, tiles on top of the concrete slab and the spa bath. In my judgment I also found that there were substantial impacts on the three neighbouring properties of the Applicants as a result of the structure being built. The impacts on 48 Casuarina Road were substantial oversight, loss of privacy and glare from the curved roof. For 17 Hibiscus Close I held there were substantial impacts from overlooking and loss of privacy. For 19 Hibiscus Close the impacts were view loss, loss of privacy and glare impacts. I also held these impacts on the Applicants' three properties could not be alleviated by additional landscaping alone.

4 Following my first judgment, the Council engaged a town planner Mr Nash to prepare a report dated 31 October 2005, which was tendered by the Council in a subsequent mention before the Court. It usefully set out a range of alternative options which, in his view, would alleviate the impacts of the structure on surrounding neighbours. Mr Nash also considered there were significant impacts on the Applicants' respective properties including oversight, loss of privacy, glare and noise from use of the spa in the structure, an additional impact to those identified in my judgment. Options canvassed in the Nash report were: Option 1 removal of spa to alleviate noise issues Option 2 removal of curved roof element to reduce glare Option 3 cutting back the eastern portion of the structure and the erection of fixed privacy screen. This would involve cutting back the cement slab by 1500mm to enable a minimum of 3m between the structure and the rear boundary. Structural engineering advice on whether that is feasible is necessary. A revised landscaping plan would also be needed to take into account the greater area for landscaping. Option 4 setback pergola structure from side boundary with 48 Casuarina Rd and erection of fixed privacy screens Option 5 cutting back slab on northern boundary (48 Casuarina Road boundary) by 1000mm and removal of six structural support piers and erection of horizontal louvre privacy screens as detailed in the figure attached to the report.

5 Whether options 3 and 5 could be carried out depended on obtaining structural engineering advice that such options were feasible.

6 Mr Nash's view was that if options 2, 3 and 4 were implemented that would be an acceptable planning outcome in that it would alleviate the major impacts on the three properties belonging to the respective Applicants. The Applicants considered overall reduction in size of the structure was necessary. They did not favour Mr Nash's proposal for setback of the structure only in option 4 with a planter box placed along the whole northern side to fill the gap to the edge of the concrete slab, as that would further add to the bulk of the structure, one of their main concerns.

7 After much discussion, including a meeting facilitated by Mr Nash, it has not been possible for the parties to agree on ameliorative orders the Court could make. In a meeting facilitated by Mr Nash the parties disagreed on what options proposed should be the subject of Court orders. The Applicants want all the options proposed by Mr Nash to be implemented including those options which provide for the cutting of the cement slab.

8 The Second Respondent does not agree with all the options proposed by Mr Nash and argued for an alternative proposal which did not involve, inter alia, any cutting of the slab. This proposal was to set the pergola back 1500mm from eastern end and 1000mm from the northern end of the slab, relocate the spa within the structure, provide louvres on the eastern elevation and horizontal louvres on the northern elevation for privacy purposes.

9 In relation to the cutting of the slab, the Second Respondent supplied a report from a structural engineer Mr El-Zahoud dated 17 March 2006 which states that: This is to clarify that the rear suspended slab has been designed as simply supported slab [sic] and not a canter lever [sic] slab. Therefore by cutting the edges of the rear suspended slab will turn the simply supported slab in to [sic] a canter lever [sic] slab. I hereby certify that the above slab will not be structurally adequate to support the loads imposed on it if it was to be cut back from the edges and turned in to [sic] a canter lever [sic] slab . 10 In a further mention before the Court at the request of the Applicants I agreed with the Applicants' submissions that this report does not appear to address in any useful way the options for cutting the slab raised in Mr Nash's report. I gave leave to the Applicants to tender and rely on a further engineer's report from Forrest Engineering Solutions dated 5 April 2006 (Exhibit H) which commented specifically on options 3 and 5 as follows: … it is our opinion that the Option 3 Works could be readily achieved. These works could be achieved by the installation of less visibly obtrusive steel posts, as compared to the existing concrete columns. The cut edge of the slab would be supported by a steel beam or channel over the steel posts. … it is our opinion that Option 5 Works could be readily achieved. These works could be achieved by the installation of less visibly obtrusive steel posts, as compared to the existing concrete columns. The cut edge of the slab would be supported by a steel beam or channel over the steel posts.

11 This report clearly suggests that it is technically feasible to cut the slab as proposed in options 3 and 5. 12 I consider that Mr Nash has provided a useful report which proposes a number of options which would ameliorate the impacts of the structure on the Applicants' properties. The alternative to not making orders allowing additional work to be done in a set timeframe is that I order demolition of the structure entirely. I consider it is appropriate that I make most of the orders sought by the Applicants, which largely implement the options identified by Mr Nash. The only order sought by the Applicants I will not make is in relation to the complete removal of the spa from the structure. Spas are generally complying development under the relevant environmental planning instrument according to the Council. The spa will have to be moved within the structure if the further work is undertaken by the Second Respondent. If the Second Respondent decides that he does not wish to undertake this work for whatever reason the structure will need to be demolished. 13 The Second Respondent has represented himself since the substantive hearing in which he was represented by counsel. I realise that these orders involve the Second Respondent in further expense if he chooses to undertake the work and that could involve financial hardship. He submitted I should order the Council to pay the costs of complying with any orders. My power to make such an order is unclear and I decline to do so. It is up to the Second Respondent to consider if he has a claim against the Council in another forum in light of the extra expense he incurs in complying with these orders. I will allow a longer period than the period sought by the Applicants in which to undertake this work. Following a further submission from the Second Respondent concerning financial hardship caused by the cost of the additional work, I consider ten months is an appropriate period to allow for the work to be done, whether alterations to the structure and landscaping, or demolition. 14 It is important that if the Second Respondent does undertake the work set out in proposed Order 2 that he is placed in a position that he can apply for, and have a high likelihood of obtaining, a building certificate under s 149D of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") from the Council. Once a building certificate is issued s 149E sets out the protection afforded to the holder of a certificate against any action by a council in relation to the repair, demolition, alteration, addition or rebuilding of a structure the subject of a certificate. An application for such a certificate is made under s 149B of the EP&A Act. Counsel for the Council has proposed that a mechanism to achieve this result is that the works in Order 2 must be supervised by an appropriately qualified structural engineer who at the conclusion of the works should provide both Respondents with a certificate certifying the adequacy of the works. This certificate would be the basis for the Second Respondent applying to the First Respondent for a building certificate. Given this approach emerged from discussions in the course of determining what final orders ought be made it is preferable that the Second Respondent be advised in writing that this course of action is appropriate to the First Respondent. Any additional matter the First Respondent anticipates requiring if a building certificate is applied for by the Second Respondent should also be identified now in writing. For example, will the First Respondent require the engineer to say what inspections he or she has conducted in the course of the work being undertaken? A letter to the Second Respondent stating that the use of a qualified structural engineer is appropriate, outlining his or her supervisory role, and identifying any additional matters the Council is likely to raise if an application for a building certificate is made by the Second Respondent should issue forthwith. What I am seeking to achieve is complete clarity for the Second Respondent as to what is required for the building certificate application so that there is a high likelihood that it will be issued by the Council if the requirements specified in the letter are complied with. If necessary I can make an order requiring that the letter be written but if the Council is able to attend to this within say two weeks there is no need for an order in my view. I have been informed that the Council has agreed to provide the required letter to the Second Respondent within two weeks. 15 As referred to in the previous paragraph, to ensure adequate supervision of the works and to increase the likelihood of a building certificate being obtained the works referred to in order 2 below should be supervised by an appropriately qualified structural engineer who, at the completion of the works, should provide both the First and Second Respondents with a certificate certifying the structural adequacy of the works as altered. I will not require this in an order but note that it is an appropriate course in the circumstances. 16 I also note there is an order giving liberty to the Second Respondent to apply to the Court for the amendment of any time specified in the orders. Orders 17 The Court makes the following orders:

1. The Second Respondent obtain, within two months of this order, the opinion of a suitably qualified structural engineer to determine a means of cutting the slab of the pergola in the manner set out in order 2(b) and (c) below whilst enabling the remainder of the pergola slab and supporting piers to remain.
2. In accordance with the recommendations of the structural engineer's report obtained pursuant to order 1, the Second Respondent carry out the following works within eight months of the date of this order: (a) Remove the curved roof element of the pergola structure and erect a flat roof in lieu thereof. (b) The eastern portion of the slab and supporting columns are to be cut back to a point 3000mm from the eastern boundary and the pergola structure set back by 3000mm from the eastern boundary. (c) The slab of the pergola is to be cut back by 1000mm and six structural support piers removed from the northern edge of the pergola. The pergola structure is to be set back by 1000mm on top of the slab in accordance with the attached sketch ("Annexure A"). (d) Lattice screening of 1000mm in height is to be erected from the underside of the slab along the northern face of the slab. (e) The balustrades on the northern side of the pergola are to be replaced with non-reflective material. (f) Erect fixed horizontal louvres of 600mm in height above the railing of the pergola in accordance with the attached sketch ("Annexure A"), along the entire length of the northern side of the pergola and fixed louvres angled upwards at 45 degrees along the eastern side and for 2m along the southern side of the pergola from the south-eastern corner. (g) Carry out landscape planting along the northern boundary of the site in accordance with the report of Narelle Sonter "alternative screen solution" dated 3 March 2005. (h) Carry out supplementary landscaping along the eastern boundary of the site with lilly pilly trees in order to screen the pergola structure.

3. If the Second Respondent prefers not to comply with the above, the pergola structure including the piers and slab is to be demolished within ten months of the date of this order.

4. Liberty to apply is reserved to the Second Respondent to seek an amendment of any time period specified by these orders.
5. The exhibits are to be returned.

15/02/2007 - Correct Annexure subsituted - Paragraph(s) image 08/03/2007 - Order 2 sub paragraph (h) omitted - Paragraph(s) 17

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