Land and Environment Court New South Wales Medium Neutral Citation: Hanna v Wollondilly Shire Council [2021] NSWLEC 1372 Hearing dates: 10-11 June 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders are at [100]. Catchwords: DEVELOPMENT APPLICATION – use of unauthorised works being a retaining wall – visual amenity BUILDING INFORMATION CERTIFICATE – regularise unauthorised works – streetscape character – visual amenity – landscaping Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 1.5, 4.2, 4.15, 4.16, 4.69, 6.25, 8.7, 8.25 Environmental Planning and Assessment Regulation 2000, cl 49 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 2.29 and 2.30 Wollondilly Local Environmental Plan 2011, cl 2.3 Texts Cited: Wollondilly Development Control Plan 2016 Category: Principal judgment Parties: Joseph Hanna (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: J Reid (Applicant) A Menyhart (Solicitor) (Respondent) Solicitors: Dignan & Hanrahan Solicitors & Attorneys (Applicant) BAL Lawyers (Respondent) File Number(s): 2020/363134 2021/125038 Publication restriction: No Judgment 1. COMMISSIONER: The Development Application (DA) 2019/493/1 appeal (2020/363134) seeks removal of conditions 1.3 and 1.4 in the consent provided by Wollondilly Shire Council (hereafter the Council) for the use of unauthorised works, being a retaining wall, on Lot 43 DP 270375, also known as 14 Lookout Drive, Orangeville (hereafter the site). 2. Also considered by the Court, is the appeal (2021/125038) against the deemed refusal of a Building Information Certificate (BIC) application 111.2019.47.001 by Council, which seeks to certify the unauthorised retaining wall on the western boundary of the site, a fence above this structure and eight (8) rainwater tanks surrounding the existing shed. 3. The two appeals are interrelated in their contentions and consideration of the works not lawfully commenced. Therefore, the appeals are considered together, although separately determined below. Background DA Appeal 2020/363134 1. Council approved on the site DA10/2014/854/001 (hereafter the 'original DA') for a two-storey dwelling, with a detached shed on 27 February 2015. The conditions that relate to this consent are provided in the attachments to Exhibit B. 2. On 9 June 2016, Council approved a Modification Application (MA) 10/2014/854/002, for the relocation of the shed towards the western boundary of the site (as shown in DA01 and DA07, attached to Exhibit 4). The conditions relating to this consent are provided in the attachments to Exhibit 4. The shed is approved to be located within 5m of the site (western) boundary, on an elevated building pad, and surrounded by vegetation on its western and northern sides. According to the approved MA plans, the height of the shed pad is approved at 212.4m Relative Level (RL), and the (predevelopment) ground surface on the western boundary within the site varies between 211.69m to 207.36m RL (as shown in the DA01). These boundary RL's are 'predevelopment', as similar levels are shown in the plans that support the original DA (Exhibit E). No levels are shown in any of the original DA or MA plans for the adjoining property along the western boundary. The western boundary of the site was originally, and approved to be, separated from the adjoining property by a post and wire fence. 3. The DA under appeal was lodged with Council on 27 August 2019. Council notified residents of the DA and received one resident submission in objection. The issues raised by the adjoining resident relate to: adverse visual amenity; structural integrity; and height of the retaining wall. 4. After internal assessment, Council notified the applicant that it would consent to the DA, which was formally approved on 10 August 2020. 5. The Class 1 appeal was lodged with the Court on 13 January 2021, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal relates to the requirement in condition 1.3 and subsequent purpose of condition 1.4 in the approved conditions of consent, to lower the height of the retaining wall that was 'unlawfully commenced', as described below: "(3) Prior to the issue of the Building Information Certificate for the Retaining Wall (Building Information Certificate Application Reference No. 111.2019.47.001) the following work and information is required to be carried out / submitted to Council, to the satisfaction of Council's Building Certifiers: Works: - The retaining wall shall be reduced to maximum 1.2m in height, measured from the top of the timber to the ground level directly below as existing. The works to reduce the overall height of the retaining wall shall be completed within 3 months from the date of this development consent i.e. by 10 November 2020. - Any gaps between or underneath the horizontal timber slats of the retaining wall shall be closed over and made good. - The existing rural fencing and landscaping between the retaining walls and the existing shed shall be reinstated once the wall has been reduced in height as above. Information: - Upon completion of the required works to reduce the overall height of the retaining wall, an engineer's report of structural adequacy, prepared by a structural engineer, to certify that the entire retaining wall is structurally adequate. (4) The abovementioned information required to be submitted by Conditions 1 (3) of this development consent shall be completed within 3 months from the date of this development consent." 1. The term 'unlawfully commenced uses' is described in s 4.69 of the EPA Act, and relates to works already constructed without prior approval. The Court hereafter refers to these works, as 'unauthorised'. This term is consistent with the description adopted during the proceedings and comparable with the meaning described in s 4.69. 2. It is accepted that the timber slated retaining wall, which is the subject of the DA under appeal, is located within 0.205m of the site (western) boundary and 4.8m from the new shed (which was approved under the MA). A rail and post fence sits atop the retaining wall, which is separated from the shed by newly planted vegetation. The vegetation is elevated above the adjoining property within fill, which supports the retaining wall and shed. The height of the (top) retaining wall, as shown in Site Plan DA02 that supports the appeal DA and BIC applications, ranges from 211.83 to 208.35m RL, and the level of the adjoining land ranges from 210.80 to 207.7m RL. 3. During the hearing, by agreement of the respondent, the applicant amended the Site Plans DA01 and DA02 (attached to Exhibit B) to remove errors and refiled these Plans with the Land and Environment Court (the Court) on 11 June 2021. The Court grants leave to rely on the amended Site Plans (DA01 and DA02) by Envision Group Pty Ltd, dated 11 June 2021, Issue C. BIC Appeal 2021/125038 1. The BIC application under appeal was lodged with Council on 24 March 2021. 2. The applicant filed the Class 1 appeal with the Court against the deemed refusal of the BIC application on 5 May 2021, pursuant to s 8.25(1)(b) of the EPA Act. 3. The BIC application relates to the following works that are already constructed: * Timber slated, steel post retaining wall along the western boundary, * Rail and post fence located atop the retaining wall, * Eight (8) portable water tanks totalling 40,000L capacity surrounding the northern, western and southern extremities of the shed. Hearing procedure 1. The Court ordered a conciliation conference between the parties for both appeals, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act), which was held before me, starting onsite. The conciliation was subsequently terminated whilst onsite, pursuant to s 34AA(2)(b), and the hearing was held forthwith, remotely by MS Teams. 2. The Amended Statement of Facts and Contentions (SoFC, tendered as Exhibit 1 for the DA and Exhibit 2 for the BIC) responds to the amended plans and documents supporting the appeals. 3. Based on the appealed applications, together with the draft conditions/orders (Exhibits 8 and 9 for the respondent, and Exhibit F for the applicant), and evidence provided in the expert reports (Exhibits 4 and 5), the respondent presses the following contentions for the Court's consideration: 1. retaining wall is erected contrary to the EPA Act, 2. excessive bulk and scale of the wall when viewed from the adjoining (western) property, resulting in adverse impact on visual amenity, 3. excessive elevation of the fence and retaining wall, which do not respond to existing topography and are unable to be maintained in existing location, 4. excessive number of water tanks around the shed resulting in adverse visual impact to an adjoining property and the streetscape, and 5. the structures are contrary to public interest due to adverse impact. 1. It is agreed by the parties that based on the amended plans, site view observations and certifications relating to the retaining wall structure, the issue as originally contended, requiring satisfaction of structural soundness of the wall is resolved. 2. The parties accepted that the observations made by the Court during the onsite view and conciliation conference could be considered in the hearing and assessment of the appeals. The Site 1. The site is an irregular shape, fronting to Lookout Drive for 16.76m, which forms the northern boundary, and is surrounded by similar large lot residential developments. The total area of the site is 1.348 Hectares (Ha), and the western boundary, which is the area of interest in these appeals is 46.58m in length. The retaining wall considered under these appeals extends for 27.95m along this boundary. 2. The site has a relatively steep slope falling in all directions away from the site, which is located on a high point in the terrain. Relevant Planning Controls 1. The appeals relating to the retaining wall are considered pursuant to s 4.69 of the EPA Act below: 4.69 Uses unlawfully commenced (cf previous s 109A) (1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except— (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or (b) the granting of development consent to that use. (2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land. 1. The Court must have considered and be satisfied of the relevant requirements of ss 4.15 and 6.25 of the EPA Act to grant consent to the DA and to order the issue of the BIC, respectively. The Court has the power to determine the appeals, pursuant to ss 4.16(1) and 8.25(3) of the EPA Act, for the DA and BIC application, respectively. 2. Development is described in s 1.5 of the EPA Act as follows: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). 1. The site is located within the RU2 rural landscape zone, on lands subject to the Wollondilly Local Environmental Plan 2011 (WLEP). For this zone, the following objectives are relevant for the Court's consideration of the DA under appeal: Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide areas where the density of development is limited in order to maintain a separation between urban areas. • To support sustainable land management practices and local food production. 1. The parties agree that there are no relevant development standards of the WLEP for consideration by the Court for the DA under appeal. 2. The parties refer to the Wollondilly Development Control Plan 2016 (WDCP), and specifically objectives relating to visual character and amenity, and controls relating to retaining walls, as described in Volume 4, Sections 1.2, and 3.13, respectively. 3. To direct the issue of a BIC for the works sought, the Court must be satisfied that the requirements of s 6.25(1)(a) of the EPA Act are adequately addressed. To this effect, the Court must consider the structural integrity, height and location of the works on the site. The applicant relies on documents and certifications in attachments to Exhibit B to support the BIC application, and which the parties agree satisfy the requirements relating to structural integrity of the retaining wall. The Court accepts these certifications in consideration of the BIC application. 4. Further to this, the Court accepts that the structures associated with the retaining wall, including the footings, planks, poles and fence, are wholly located within the site, based on the structural certifications provided in the attachments to Exhibit B, the survey plan also in Exhibit B (by JMD Development Consultants, dated 26 September 2019) and relevant footing drawings in Exhibit A. Evidence 1. The Court heard from the following planning experts: Mr Michael Brown for the applicant; and Ms Mairead Hawes for the respondent. In consideration of the appeals, the experts rely on their joint expert report and supplementary expert report, tendered as Exhibits 4 and 5, respectively. Determination relating to the DA 1. According to Council, as explained in the SoFC and the relevant expert report, the DA for the retaining wall is not a proper pathway/process to seek consent for the unauthorised structure (retaining wall) because it is not a 'development' within the meaning described in s 1.5 of the EPA Act. The approval of 'use' of the retaining wall is therefore not appropriate under this DA. The Councils considers that the existence and structure of the 'unauthorised' retaining wall should be addressed through the BIC application. 2. The Council also contends that the bulk and scale of the retaining wall causes adverse visual impact to an adjoining property and does not relate to the context of the site, because it is elevated and located in close proximity to the side boundary. The focus of concern for Council primarily relates to the northern portion of the retaining wall, which is above 1m in height. 3. The Council accepts that it has already approved the DA for the use of the retaining wall, which is now under appeal, however, based on further assessment, the Council now considers that the DA should be refused. Requirement for a DA 1. I will first address the issue of consistency with the EPA Act, and whether the DA is the appropriate consent for the 'use of unauthorised retaining wall'. 2. The parties agree, and I concur that the retaining wall does not satisfy the requirements for exempt development, pursuant to cll 2.29 and 2.30 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 3. It is accepted that no consent was sought by the applicant prior to the construction of the retaining wall, and this wall was not considered in the consents for the original (dwelling) DA or the MA (shed). The conditions of consent attached to the original (and operational) DA for the dwelling, provide for the construction of retaining walls resulting from excavation for the dwelling, with prior approval, as described in condition 5.3. The retaining wall that is subject of the appeal is not shown on any plans that relate to the consents for the original DA or the MA. The retaining wall under appeal also does not relate to the excavation of the dwelling as described in condition 5.3. 4. I consider that the plans approved for the original DA/MA are deficient in showing the predevelopment elevation levels on the adjoining property, which would have made it apparent to Council when approving the MA that a retaining wall or similar structure was required along the western boundary, particularly with respect to the approved elevation of the building pad for the shed. This deficiency in information appears to have incorrectly informed the MA consent with respect to changes in elevation. 5. It is not in dispute between the parties that a retaining wall or similar structure is required between the new shed and the western boundary. The dispute lies in the location of the existing retaining wall (within close proximity to the boundary) and the height of the wall. 6. It is accepted that the Council has already approved the DA for the use of the retaining wall in this location as a conditional consent, which requires the wall height to be reduced to a maximum of 1.2m. This is described in condition 1.3, which is under appeal. 7. According to Ms Hawes, the retaining wall height of 1.2m, as sought in condition 1.3 of the DA, was adopted as a compromise on the WDCP requirement in Section 3.13 for retaining walls within 0.5m of a boundary to be limited to 1m. The location of the existing wall is within 0.2m of the site boundary, which she considers at its height to be characteristic in the streetscape and causes adverse visual amenity to an adjoining resident. 8. The experts accept that there is a large portion of the existing wall that is above 1m in height, as shown in DA02. 9. As explained by Mr Brown, the location and height of the retaining wall is appropriate and reflects an increasing trend in the area to rely on vertical retaining walls rather than stepped/sloped battering to protect properties from elevation changes. He relies on several examples of retaining walls in the surrounding area, citing Council has approved 'similar' structures (photographs in attachment to Exhibit B). He is not aware if these walls are located on boundaries. 10. In consideration of the requirement for a DA, I find that the retaining wall is a 'work' according to the definition in s 1.4 of the EPA Act, below: work includes any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act. 1. The retaining wall is a 'work' that requires development consent, as described in s 1.5 of the EPA Act, and pursuant to s 4.2 of the EPA Act. It is accepted that the 'work' is existing, and that no prior approval was sought before construction, therefore, retrospective consent cannot be granted for the carrying out of the work itself, pursuant to s 1.5(1)(d). Only the 'use' of the land relying on this work can be approved by the consent of the DA, pursuant to s 1.5(1)(a), as sought in this appeal. 2. Whilst I accept that the applicant was obligated to seek approval for the retaining wall prior to its construction, which appropriately could have been considered in the approval of the shed (through the MA), this was not done. I also accept Ms Menyhart's proposition that the pursuit of a DA for the 'use' (of the retaining wall) on the land is not an efficient approach. I disagree that the pursuit of the DA under appeal is not legitimate. 3. I accept that the DA for the use of the retaining wall is an approach the applicant is open to take, which the Court must now consider. Pursuant to ss 1.5(1)(a) and 4.69 of the EPA Act, the applicant has the right to seek the use of the land relying on the existing work (retaining wall). 4. I accept Ms Reid's assessment that the retaining wall serves a purpose to facilitate the primary use of the dwelling on the site (land), which is a permissible use, pursuant to cl 2.3 of the WLEP. The shed is an extension of the use of the dwelling, and the retaining wall is a necessary structure to ensure the structural stability in the long term use of the shed. The primary and permissible use of the land remains as a dwelling house, as permitted with consent in cl 2.3. The retaining wall supports the permitted use of the dwelling house located on the land. The objectives of the RU2 zone are achieved. 5. Pursuant to s 1.5(1)(a) of the EPA Act, I accept that the DA under appeal is reasonable in the circumstances to address the use of the land and its reliance on the unauthorised work. 6. After finding that the DA sought by the applicant is appropriate and reasonable for consideration by the Court, I now must then assess the merits and jurisdictional requirements of the application, pursuant to the provisions established in s 4.15 of the EPA Act, to determine whether to grant consent to the DA under appeal. Amenity - visual impact 1. In consideration of s 4.15 of the EPA Act, the primary contention of Council, which was also raised by the adjoining resident in objection, relates to the location and height of the retaining wall presenting with a bulk and scale that causes adverse visual amenity to the adjoining resident. 2. The experts agree that when assessing the contextuality and setting of the retaining wall, the objectives and controls of the WDCP are relevant for the Court's consideration. 3. The experts refer to Section 1.2, Volume 4 of the WDCP, to inform the assessment of impact to visual amenity, as described below: "Objectives The object of this volume is to ensure that residential accommodation developments achieve the aims of Wollondilly Local Environmental Plan 2011 (WLEP) by ensuring that residential developments achieve excellent planning outcomes. The specific objectives referred to in this volume are detailed below: 1. Visual Character and amenity … 1.2. To enhance the landscape and streetscape character through considerate and attractive design. 1.3. To ensure good urban design through minimising hard surfaces and the provision of adequate landscaping. … 1.5. To create attractive streetscapes and landscapes through quality built form and by ensuring that development does not dominate through excessive bulk, height or inappropriate scale. … 1.7. To encourage well designed development with high amenity outcomes for residents. 1.8. To ensure design quality of developments and that development is sympathetic to the existing character of the area. 1.9. To ensure the design of any development is suitable to the size, dimensions and topography of the site." 1. The experts agree that the other objectives in Section 1.2 are either not relevant or satisfied, and not in contention. There are no other controls of the WDCP, relied on by the experts, except those relating to retaining walls in Section 3.13. 2. The experts disagree as to whether the elevation of the retaining wall and its proximity to the boundary causes an adverse visual impact, specifically to the adjoining property at 8 Lookout Drive. This resident has raised similar concerns in their submission in objection. 3. The experts agree that the retaining wall height could be reduced by the removal of several planks of timber, particularly where they are not supporting any fill in the southern portion of the wall. I concur that the removal of these timber planks and relative reduction in height of the supporting piles is appropriate. These planks do not serve any purpose and their removal would reduce any perceived adverse visual amenity, due to a reduction in bulk and scale in this portion of the wall. I will address this issue further in the judgment in relation to assessment of the BIC application appeal. 4. With regards to the height of the retaining wall that is above 1m in height (as measured at the property boundary), I find that the height of the wall should be reduced consistent with the contour levels at the boundary, as shown in Exhibit E. This exceedance relates primarily to the northern portion of the wall, relative to the slope of the adjoining land. I give my reasoning below. 5. In assessing the retaining wall and the fence atop, I rely on DA01 and DA02, provided in Exhibit B, and Exhibit E. I also rely on my observations from the site view, as I stood on the site, in the streetscape and on the adjoining property. 6. When viewed from the adjoining property (8 Lookout Drive) and within the streetscape, the wall appears as an anomaly in the landscape, presenting as a hard structure in the softer, more natural rural setting. I accept that retaining walls are a recognised feature of the streetscape, however there appears to be no attempt by the applicant to soften the effect of this vertical retaining wall with an elevated fence located close to the boundary, either by height, setback or landscaping. 7. I accept that the retaining wall is a necessary feature to address the change in elevation levels between the approved shed, boundary of the site and the adjoining property. However, I consider that the wall does not need to be as harsh on the eye or cause adverse visual impact to the adjoining resident and in the streetscape. 8. The applicant has sought to maximise the elevated levels on the site with the provision of landscaping and fencing, without considering a retaining wall structure that could sit more sympathetically in the rural landscape. The height of the wall at this location enhances the effect of adverse visual impact. I agree with Ms Hawes that the provision of landscaping and fencing above the retaining wall accentuates the height of the wall. 9. I however accept that the applicant has placed the retaining wall in a location that has reduced the need for substantial cut on the site. The location of the wall in close proximity to the boundary is therefore, necessary and reasonable. The height of wall however causes the adverse amenity impact. 10. I find that the retaining wall at its current height, in this location, results in unnecessary bulk and scale, causing adverse visual amenity. For the reasons above, I find that the height of the existing retaining wall is inconsistent with the objectives of Section 1.3 of the WDCP relating to visual character and amenity, and specifically objectives 1.5, 1.7, 1.8 and 1.9. 11. I further assess that a reduction in the overall height of the retaining wall consistent with predevelopment (elevation) levels along this boundary, as shown in the plans approved in Exhibits B and E, would achieve the relevant objectives of the WDCP, and mitigate adverse visual amenity. 12. The changes to the wall required to grant consent to the DA are addressed below in assessment of the BIC application. Evaluation of the matters of consideration 1. The parties agree and I accept that the retaining wall satisfies the relevant provisions of the WLEP. I describe above that the retaining wall is an extension of the use of the land as a residential dwelling, which is permissible in the RU2 zone, pursuant to cl 2.3 of the WLEP. The objectives of the RU2 zone are achieved. 2. There are no relevant numeric requirements of the WLEP or WDCP, except those described above relating to the amenity and height of the retaining wall in the WDCP. 3. I find that with the reduction in the height of the retaining wall by condition of consent, the relevant objectives and controls of the WDCP are achieved. Therefore, I am satisfied that the matters described in s 4.15(1)(a) of the EPA Act are achieved. Further to this, the retaining wall is deemed suitable for the site, does not result in environmental impact, satisfying subss 4.15(b) and (c). 4. I have considered the submission of the resident and am satisfied that the issues raised are addressed in the application and by condition, pursuant to s 4.15(1)(d) of the EPA Act. I am satisfied that approval of the DA is in the public interest, pursuant to s 4.15(e). 5. I have assessed that the retaining wall, including its footings, is wholly located within the boundaries of the site. The requirement for owners consent for the DA, pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) is satisfied. 6. The parties have not raised, and the Court is not aware of any other jurisdictional issues that require the Courts consideration with regards to the granting of the DA under appeal. 7. In consideration of the evidence before me, I am satisfied, for reasons explained above in this judgment, that the retaining wall satisfactorily addresses the requirements of s 4.15 of the EPA Act. 8. The DA is granted subject to conditions, pursuant to s 4.16(1)(a), and as described below. Determination relating to the BIC application 1. The Court has the power to make a determination on the issue of the BIC application separate from the DA, which is also under appeal, pursuant to ss 6.25 and 8.25(3) of the EPA Act. Pursuant to s 8.25(3) of the EPA Act, the Court also has the power to alter the orders sought in the BIC appeal, and to direct the Council to issue the BIC accordingly. 2. There is no general or equivalent assessment principle to consider the BIC application under appeal, such as required to consent to the DA, pursuant to s 4.15 of the EPA Act. However, the Court must be sufficiently satisfied that "there is no matter discernible by the exercise of reasonable care and skill …" to order the issue of the BIC, pursuant to s 6.25(1). Structural integrity 1. The experts agree, and I concur that there is sufficient information that would satisfy the Court to issue the BIC as sought by the applicant with regards to structural integrity, based on the certifications provided in attachments to Exhibit B. Height of retaining wall 1. As explained above, I find that the existing retaining wall, as constructed and located on the site, causes adverse (visual) amenity impacts to the adjoining resident, and is incompatible in context and character of the streetscape, due to its unreasonable bulk and scale caused by the height of the structure. This assessment specifically relates to the northern portion of the wall, where it extends above 1m in height (relative to the adjoining ground surface). 2. The orders described below are relied on by the Court to direct the Council to issue the BIC, pursuant to s 8.25(3)(a) of the EPA Act. 3. The Court requires an alteration to the height of the existing retaining wall, pursuant to s 6.25(1)(a) of the EPA Act, consistent with predevelopment levels at the boundary. The applicant must reduce the top of wall height to (elevation) levels consistent with that shown in the site plan DA01 and DA02, Revision C, dated 11 June 2021, and survey plan by JMD, dated 26 September 2019. These are assessed as the predevelopment levels along the western boundary of the site. 4. Also, as described above, I order that the wall be altered to remove timber slats which do not support any fill in the southern portion of the wall, together with a corresponding reduction in the height of the posts supporting the structure. 5. I find that there is adequate access from either the applicant's site or the adjoining property (by consent) to assure the Court that maintenance of the wall and the fence is not an insurmountable issue that consent for the DA should not be granted or the BIC should not be issued. Fence 1. I accept the location and style of the fence located above the retaining wall, along the western boundary of the site. However, as the fence is located directly atop the retaining wall and where the retaining wall is adjusted, the fence will be required to be relatively reduced in overall height. 2. The fence that sits atop of the adjusted retaining wall height and any removed vegetation where required, should be replaced at the appropriate level relative to adjusted height of the retaining wall. Rainwater tanks 1. I accept Council's contention that two of the rainwater tanks around the perimeter of the shed present to the streetscape causing an adverse visual impact, although I do not accept that any of the tanks around the shed adversely impact the adjoining property. 2. The two rainwater tanks along the northern face of the shed are of particular concern, as they appear dominant features in the streetscape that are not consistent with the character of the area, and are also located forward of the building line. 3. I note that the MA was approved on the basis that the northern and western faces of the shed would be landscaped, as shown in DA07 (Exhibit B). I consider that landscaping along the northern face of the shed is an appropriate treatment to soften the shed structure to the streetscape. The location of the two large rainwater tanks, irrespective of their colour, along this (northern) face of the shed is not consistent with the character of the streetscape or area. 4. I accept the purpose of the eight (8) rainwater tanks around the shed for firefighting, and that the combined capacity of these tanks is 40,000 litres. The capacity of the tanks is not in dispute or their purpose, however their location as it presents to the streetscape is an issue that requires to be resolved. 5. To address the adverse presentation to the streetscape, I order that the two rainwater tanks located along the northern face of the shed be removed (or relocated to an appropriate location on the site as agreed with Council) to allow landscaping around the northern side of the shed, consistent with the approved MA. Conditions and orders 1. Based on the findings described above, I grant conditional consent to the DA. I adopt and amend the conditions of consent proposed by Council as described in Exhibit 8, and specifically that described in condition three (3). I amend Council's condition 3 based on my determination made above for the overall reduction in the retaining wall height consistent with predevelopment levels, rather than that proposed by Council to 1.2m. The other conditions sought by Council are accepted. I agree that the changes to the wall should be made before the issue of the DA. 2. In addition, I amend condition two (2) of Council's proposed conditions to refer to the (most recent) plan granted leave of the Court for the applicant to rely on. 3. The conditions of consent relating to the grant of consent for the DA are provided in Annexure A. 4. In relation to the BIC application, I direct the Council to issue the BIC. In directing the issue of the BIC, I adopt Council's conditions/orders sought (in Exhibit 9), except to amend order 1, as follows, which are described in Annexure B: 1. The top of the retaining wall along the western boundary of the site is to be reduced in height to predevelopment levels at the boundary as shown in Site Plans DA01 and DA02, Revision C, dated 11 June 2021 by Envision Group Pty Ltd. 2. The timber planks in the (southern portion of the) wall that are not retaining any fill and are exposed on both sides, are to be removed and the supporting piling cut back to the height of the remaining timber planks. 3. The existing rural fencing is to be re-installed at the relative wall level, where removed to reduce the wall height, and any removed landscaping is to be replanted in its current alignment at the amended elevation, located between the wall and the existing shed. 4. The two water tanks located on the northern face of the shed, are to be removed or relocated elsewhere on the property, as agreed between Council and the applicant. 1. Council proposed (BIC) order 5 is also amended to refer to "… all rainwater tanks connected to the shed…". Conclusion 1. The Court, after assessing the evidence and documents supporting the DA and BIC application appeals, must be satisfied of the jurisdictional requirements to grant consent to the DA and direct the issue of a BIC, as sought by the applicant. 2. The Court must undertake a merit and jurisdictional assessment of the facts and evidence when determining the appeals. DA Appeal 2020/363134 1. Based on my assessment of the evidence before me, I approve the grant of consent to the DA under appeal, pursuant to s 4.16(1)(a) of the EPA Act. The consent is conditional, as described in Annexure A. 2. For the reasons provided above in this judgment, I find that the application satisfactorily addresses the matters for consideration described in s 4.15(1) of the EPA Act. Therefore, pursuant to s 4.16(1)(a), the DA is approved with conditions. BIC Appeal 2021/125038 1. The Court's discretion to assess and direct the issue of the building certificate is broad under s 8.25(3) of the EPA Act. The applicant is seeking the Court to direct the Council to issue a BIC, which I find is reasonable in the circumstances. 2. All supporting plans/documents have been assessed by the Court. I find that the works described in the BIC application satisfy the requirements of the relevant planning instruments, specifically s 6.25 of the EPA Act. 3. In this appeal, I direct the Council to issue the BIC as sought by the applicant, with orders in Annexure B to: reduce the height of the retaining wall; adjust the associated fence, fill and vegetation; and remove two tanks from around the existing shed. Orders 1. Consequently, the orders of the Court are as follows: DA Appeal 2020/363134 1. The applicant is granted leave to rely on Site Plans DA01 and DA02, Revision C, dated 11 June 2021 by Envision Group Pty Ltd. 2. The appeal is upheld. 3. Development Application 2019/493/1, for the use of land relying on the retaining wall that was unlawfully commenced on Lot 43 DP 270375, also known as 14 Lookout Drive, Orangeville is approved subject to conditions in Annexure A. 4. The exhibits, except for Exhibits 1, 4 and A are returned. BIC Appeal 2021/125038 1. The Applicant is granted leave to rely upon Site Plans DA01 and DA02, Revision C, dated 11 June 2021 by Envision Group Pty Ltd. 2. The appeal is upheld. 3. Pursuant to section 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, Wollondilly Council is directed to issue a building information certificate for application no. 111.2019.47.001 to the applicant for the retaining wall, fence and rainwater tanks on Lot 43 DP 270375, also known as 14 Lookout Drive, Orangeville, subject to the orders made in Annexure B. 4. The exhibits, except for Exhibits 2, 4 and C are returned. ……………………. Sarah Bish Commissioner of the Court Plans (4143294, pdf) Annexure A (262218, pdf) Annexure B (125346, pdf) ********** 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: 25 June 2021