Brown v Lane Cove Municipal Council [2021] NSWLEC 1525

Land and Environment Court New South Wales

Medium Neutral Citation: Brown v Lane Cove Municipal Council [2021] NSWLEC 1525 Hearing dates: 31 August 2021 – 1 September 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is dismissed (2) All exhibits are returned. Catchwords: MODIFICATION APPLICATION – residential development – retaining walls – insufficient information Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Lane Cove Local Environmental Plan 2009, cl 6.1A Texts Cited: Lane Cove Development Control Plan 2010 Category: Principal judgment Parties: Bianca Brown (Applicant) Lane Cove Council (Respondent) Representation: B Brown (Litigant in Person) (Applicant) J Merlino (Solicitor) (Respondent)

Solicitors: HWL Ebsworth (Respondent) File Number(s): 2021/181467 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant seeks approval under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify DA37/2020 for demolition of existing dwelling house and construction of a split-level dwelling house at 13 Gore Street, Greenwich, 23/2/DP3101. The modification application seeks approval for three retaining walls and minor modifications to the dwelling, and has been refused by Lane Cove Council. This appeal was brought to the court under s 8.7 of the EPA Act following Council's refusal. 2. Specifically, the modification application proposes the following: * Section 4.55 modification for continuation of works partially/fully constructed without development consent including; 1. Constructed 1.5m high sandstone block retaining wall setback approximately 0.4m from the rear northern boundary fence. The wall is approximately 11.5m in length; Additional planter box/balustrade above already constructed retaining sandstone walls at rear boundary; 2. Constructed 1.5m high sandstone block retaining wall setback approximately 0.4m from the western boundary fence with 15 Gore Street. The wall is approximately 5m in length; 3. Back fill behind the walls to raise the natural ground level of the rear yard by a maximum of approximately 1.5m RL 45.700 RL; 4. Partially constructed up to 1.5m high sandstone retaining wall with nil setback to boundary fence western boundary fence with 15 Gore Street. The wall is approximately 15.8m in length. The back fill behind the wall raises the natural ground level a maximum of 1.428m to approximately 48.7 RL; * Modify window WL06 (as shown on architectural plans) into a door to allow direct access to rainwater tanks; * Proposed reduction in size of rear deck by approximately 9.2 sqm; * Removal of door at living room window G.06 to access rear deck at ground floor; * Reduction of kitchen window WG03 in width from 3.6m to 2.8m; * Relocation of powder room to be adjacent to front entry area; * Back fill to raise the ground level of the rear yard; * Replacement of pergola and extension of roof over rear deck area and front entry area adjacent to garage; * Increased FFL of lower ground floor deck by 100mm to 45.84RL from approved RL of 45.740RL. * Increased FFL of ground floor deck by 100mm to 48.9RL from approved RL of 48.8RL; * Extension of front entry foyer; and * Additional steps in front yard adjacent to side boundary with 11 Gore Street. The steps are proposed within the Right of Footway easement (D15) which benefits 11 Gore Street. 1. The focus of the hearing was primarily on the unauthorised constructed retaining walls and backfill in the rear garden and along the western boundary, privacy screening to an elevated deck, and the proposed works within the Right of Footway easement. No other matter was discussed in the hearing despite other modifications being sought. 2. The Council as the Respondent agreed to the substitution of amended plans in proceedings, which lowered the western boundary retaining wall by one sandstone block (the dimension of which was not confirmed). Based on the amended plans, the Respondent maintains the following contentions: 1. The application includes inconsistent documentation and is deficient in detail to the extent that it cannot be adequately assessed, nor approved. 2. The missing information includes stormwater and flooding assessments of the impacts of the retaining walls. The application also lacks any assessment against the relevant development controls within the Lane Cove Local Environmental Plan 2009 (LCLEP) and the Lane Cove Development Control Plan 2010 (LCDCP). 3. Despite the lack of information, it is apparent that the unauthorised retaining walls contravene several key development controls including, inter alia, LCLEP cl 6.1A Earthworks, LCDCP Part C clause 1.6 Cut and Fill, and LCDCP Part O clause O.10 Stormwater Inundation, and will have adverse impacts on the privacy and amenity of neighbours. 1. The self-represented Applicant, Ms Brown, is a lawyer and the owner-builder of the house at 13 Gore Street, Greenwich. She has sought advice from her architect and engineer for these proceedings and, despite being provided with the opportunity to reconsider her position, Ms Brown proceeded with the appeal on the basis that her family's safe and functional use of the house and garden necessitated the construction of the retaining walls. 2. During proceedings, Mr Merlino for the Respondent briefly cross-examined the Applicant's planning expert, Mr Slaviceck, who is also the architect of the dwelling. The Applicant elected not to interrogate either the planning engineering experts, and the parties subsequently rely on the written evidence of the Joint Reports. 3. Given the slope of the land, engineering matters were of particular relevance. The Joint Report of Engineering Experts, Exhibit 4, identifies significant issues with the unauthorised retaining walls located on the northern boundary of the site- works that the Applicant submitted should be approved for the safety of her children. 4. To be clear, in respect of stormwater, in the joint report both the applicant's and respondent's experts agreed that: "… 2. The proposed retaining wall blocks the floodway flow path as it is in the free board zone. This will create a drag on the water flow and cause flood water level to raise more in the existing flow path in rear properties such as 26 St Vincent St. 3. In case of absorption trench fails or overflows, the overflow must reach natural flow path at rear. This retaining wall blocks this overflow from reaching natural flow path at rear. 4. Proposed retaining wall is not only blocking overflows to reach natural flow path and also directing this overflow and natural overland flow towards No. 15 (Gore Street). … 6. (A) Geotechnical report has not been submitted in relation to (the) absorption trench. …" 1. The significant stormwater issues coupled with the fact that the walls raise issues of privacy and amenity, and represent what the Applicant's Architect acknowledged as an 'aggressive' response to managing the slope of the site alone warrant refusal of the application. No evidence was brought that dispelled the Respondent's position on these issues, and this position is consistent with the written and oral submissions of neighbouring residents. 2. It is apparent to me that this application is deficient and the Respondent's contention in that regard justified. Further, it is my considered opinion that for this reason, and the reasons submitted by Mr Merlino for the Respondent, there is no merit in the approval of this requested modification to DA37/2020. 3. Accordingly, the appeal is dismissed. 4. The Court orders: 1. The appeal is dismissed. 2. All exhibits are returned.