Land and Environment Court New South Wales Medium Neutral Citation: Barel v Randwick City Council [2022] NSWLEC 1176 Hearing dates: 21, 22 February 2022 Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed (2) Development Application 551/2020 at 5 Dacre Street Malabar, for demolition of existing structures and construction of a two storey attached dual occupancy development with one dwelling fronting Dacre Lane and one fronting Dacre Street is determined by way of refusal. (3) Exhibits are returned with the exception of Exhibit A, B, L and 2 Catchwords: DEVELOPMENT APPLICATION – Dual occupancy development – site planning and form of dual occupancy – whether the excavation proposed is acceptable – sufficiency of evidence – site suitability – character. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, ss 5, 30 Land and Environment Court Act 1979, s 34AA Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.1, 4.3, 4.4, 6.1, 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy No 55-Remediation of Land, cl 7 Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Michael Barel (Applicant) Randwick City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) S Flannigan (Respondent) Solicitors: Strata Specialist Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/278760 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/551/2020) by the Randwick City Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks development consent for demolition of existing structures and construction of a two-storey attached dual occupancy with one dwelling fronting Dacre Street (unit 1) and the other dwelling fronting Dacre Lane (unit 2). The proposal involves basement excavation (for the dwelling fronting Dacre Street), tree removal, landscaping and associated works. The development is proposed at 5 Dacre Street, Malabar (Lot C DP 961615). 2. On 15 November 2021, the Applicant lodged a Notice of Motion seeking to rely on amended plans and an amended Statement of Environmental Effects. Leave was granted by the Registrar to rely upon the amended plans and an amended Statement of Environmental Effects dated 23 November 2021. 3. The appeal was subject to conciliation on 21 February 2022 (s 34AA of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached, and conciliation was terminated. The proceedings were dealt with as a hearing. 4. At the commencement of the hearing the Applicant sought to further amend their development application in response to the evidence in the joint reports. I am satisfied that the Respondent as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending Development Application and that the amended application has been lodged on the NSW Planning Portal. The amendments were described by the Applicant as follows: * Updated floor space ratio (FSR) calculation * Inclusion of boundary fencing * Addition of a 300mm thick retaining wall to the southern boundary of the subject site * Addition of various retaining walls within the subject site where excavation is proposed to be greater than 600mm * Nomination of RLs to the proposed roof line Unit 1: * Increase in the width of external walls to 270mm * Amendment to the alignment of the internal lift * Windows 03 and 05 amended to fixed obscure glazing * Addition of skylight details over stairwell Unit 2 * Relocation of the master bedroom * Addition of a window to the entry foyer * Addition of a louvred privacy screen to terrace * Inclusion of an additional highlight window to the kitchen Issues 1. Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal, principally on the basis that the subject site is unsuitable for the proposed development. The Respondent argues that: 1. The development requires excessive excavation to facilitate its construction, in part due to the steep and narrow nature of the site. I note that the Respondent further contends that there is insufficient detail of how excavation and retaining walls are to be managed in the proposed development. 2. The scale and form of the proposed development is inconsistent with the desired future character of the locality. That the visual bulk of the proposed development is exacerbated by the rear and side setback non-compliance. Further, that the site planning of the proposed dual occupancy, where the dual occupancies are oriented end-to-end rather than side-to-side, is not a form envisaged by the Randwick Development Control Plan 2013 (DCP 2013). 3. The proposed development will have unreasonable, detrimental impacts on the adjoining properties. (Exhibit 2) The site and locality 1. The subject site consists of one allotment (Lot C DP 961615) with dual frontage to Dacre Street and Dacre Lane in Malabar. The site currently contains a two-storey dwelling house and associated structure. These improvements are proposed to be demolished under the development application. 2. The subject site slopes steeply from Dacre Lane to Dacre Street. By reference to the site survey, there is a change in level of approximately 11.14m over the 47m length of the site, from approximately RL 29.29 at the rear to RL18.15 at the street boundary (Exhibit D). There is also a cross fall of about 0.5m from the north-west to south-east boundary of the site. (Exhibit 2) 3. The site and the immediately neighbouring dwellings are zoned R2 Low Density Residential pursuant to Randwick Local Environmental Plan 2012 (LEP 2012). The majority of the existing development surrounding the site comprises detached dwelling houses of between two and three storeys. However, there are attached and detached dual occupancy developments along the length of Dacre Lane. 4. The parties disagree whether the surrounding area is undergoing urban renewal and whether that renewal is, or is likely to, result in a replacement of detached dwellings with attached or detached dual occupancies. Public Submissions 1. The development application was notified to adjoining property owners and exhibited for a period of 14 days from 20 October 2020, in accordance with the requirements of DCP 2013. As a result of the notification process two submissions were received. The concerns raised in submissions received can be summarised as follows: 1. That the architectural plans which form part of the development application are inconsistent. 2. That the development will impact the privacy and solar amenity of the adjoining properties. 3. That the development does not comply with the side setback requirements of DCP 2013. 4. Given that the subject site is likely to be sandy, there have been inadequate geotechnical investigations. 5. That the proposed development does not comply with the development controls for garages and driveways. The non-compliance will lead to a loss of on-street parking. 6. That the proposal lacks adequate landscaping. 1. In determining the development application, I have read and considered the submissions received by the public: s 4.15(1)(d) of the EPA Act. Expert Evidence 1. The Court was assisted by town planning experts, Mr John Boers for the Applicant and Ms Rosalind Read for the Respondent. The joint report of these experts was tendered as Exhibit 3 in the proceedings. In addition to their joint report, the experts were called for cross examination. Preconditions to the grant of consent 1. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows. Insufficient information to consider whether the land is contaminated. 1. The first precondition relates to the potential for site contamination. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP (Resilience and Hazards)) came into force on 1 March 2022. Whilst the SEPP (Resilience and Hazards) transfers the provisions of State Environmental Planning Policy No 55- Remediation of Land (SEPP 55) to the new SEPP, the provisions of SEPP 55 continue to have effect to the DA by dint of ss 5(6) and 30(2)(d) of the Interpretation Act 1987. 2. Clause 7(1) of SEPP 55 provides that a consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. Clause 7(2) of SEPP 55 provides that: before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 1. The development application does not seek a change of use. The existing use of 'dwelling house' and the proposed use of 'attached dual occupancy' are both a type of 'residential accommodation' as defined by LEP 2012. However, with regard to the consideration required at cl 7 of SEPP 55, the Statement of Environmental Effects does not address the matter of potential contamination. 2. The development application is supported by a Geotechnical Desktop Study prepared by JC Geotechnics Pty Ltd in July 2020 (the Geotech Report). The Geotech Report does not make any assessment of the potential for contamination on the subject site. In my view, if the development application was to be approved it would be necessary for the Applicant to provide additional information to allow the consent authority to complete a consideration of the likelihood of contamination based on at least an investigation of the previous development application history of the site, perusal of historic aerial imagery and a site inspection to allow the consent authority to undertake the consideration required at cl 7 of SEPP 55. No such information is included with the development application. The precondition is not satisfied. 3. Such a finding is sufficient to dispose of the proceedings, however for completeness, I have considered the remaining preconditions relevant to the proposed development in the following. 4. The development application was lodged with a BASIX Certificate that satisfied the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). An updated BASIX certificate for the amended development application has been filed, satisfying the requirements of SEPP BASIX. 5. Pursuant to LEP 2012, the site is zoned R2 Low Density Residential. Dual occupancies (attached) are permitted with consent in the zone. As required by cl 2.3(2) of LEP 2012, in determining the development application I have had regard to the objectives of the R2 Low Density Residential zone, namely: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. 1. Demolition is permitted with consent: cl 2.7 of LEP 2012. 2. Pursuant to cl 4.1 of LEP 2012, the minimum lot size for subdivision, excluding strata or community title, is 400m². The minimum lot size for dual occupancy attached in the R2 Low Density Residential zone is 450m². The subject site has a total area of 570.7m² and is compliant with these development standards. 3. The maximum height of any building on the subject site is 9.5m: cl 4.3 of LEP 2012. The development is compliant with this development standard. 4. Pursuant to cl 4.4 of LEP 2012, the mapped FSR for the subject site is 0.5:1. The experts disagree as to the correct calculation of gross floor area (GFA), and therefore the FSR of the proposed development. The development complies with the FSR development standard. 1. By reference to the amended architectural plans, the Applicant asserts that the proposed development has a GFA of 277.45m². The experts agree the subject site has a total area of 570.7m². Therefore, on the Applicant's analysis, the development application has an FSR of 0.486:1. On the Applicant's figures the development is compliant with the applicable maximum FSR under cl 4.4 of LEP 2012 of 0.4706:1. 2. The GFA for a proposed development is calculated in accordance with the definition contained in LEP 2012, as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes— (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes— (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement— (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 1. The planning experts disagree as to whether the area of the passenger lift in Unit 1 should be included in the calculation of GFA. 2. Ms Read argues that applying Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 ('Connoisseur Investments') at [82] and [86], it is appropriate to include in the GFA calculation the area of the base of the internal lift at ground level. To do so would increase the GFA of the proposed development by 3.24m² (Exhibit 3). 3. In considering the competing evidence I agree with and apply the reasoning of Horton C in Connoisseur Investments at [86]. Namely that: "As GFA is calculated at 1.4m above a floor, and as it excludes voids above a floor at the level of a storey or storey above, I accept the method articulated by Mr Betros in relation to stairs and lifts because, at the level at which GFA is measured, stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted." 1. On this basis, I accept and adopt the approach of Ms Read that the area of the internal passenger lift within the dwelling contributes 3.24m² to the GFA of the proposed dwelling. 2. Applying this finding, the GFA of the proposed development is 280.69m², resulting in a compliant FSR of 0.49:1. 3. Clause 6.1 of LEP 2012 addresses acid sulfate soils. The subject site is not mapped on the Acid Sulfate Soils map. As such the provision does not apply to the development application. The development application lacks sufficient detail to assess proposed earthworks and retaining structures. 1. Clause 6.2 of LEP 2012 addresses earthworks. The objective of the clause is to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. Development consent for earthworks is required as those works are not exempt development or ancillary to development which is permitted without consent: cl 6.2(2) of LEP 2012. Subcl (3) of cl 6.2 contains a precondition to consent in the following terms: (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters— (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. As noted at [5], the development application includes a Geotech Report. The report is limited to a desktop study and includes the following explanation of its scope: "This report contains general advice regarding geotechnical factors which are anticipated to be relevant to the proposed development, however we note that no testing or sampling was undertaken to support the assumptions made herein, and thus all inferred subsurface conditions, comments and recommendations should be considered preliminary, and provided as general guidance for concept development purposes only." (Exhibit F) 1. The Geotech Report concludes with a single recommendation, which is to undertake a geotechnical investigation of the site prior to completion of detailed design, to provide confirmation of the design of foundations and retaining structures (Exhibit F). The Geotech Report describes such investigations as incorporating 'hard augered boreholes and DCP testing as a minimum, but preferrable machine drilled boreholes with standard penetration testing and providing of subsurface conditions to at least 2m below the proposed excavation' (Exhibit F). There is no evidence before the Court that this additional investigation has been completed. 2. In many cases no geotechnical investigation of a subject site further than a desktop study is required. However, for the following reasons, I am persuaded that further information was and is required to inform the design of the proposed development and to allow for an assessment of the development application: * The site is characterised by a significant slope, as are the adjoining properties. * The Geotech Report notes that the subsurface conditions of the site are likely to consist of silty sand and/or sandstone bedrock. * The Geotech Report notes that the depth of sandstone bedrock present on the site is unknown. * The development application seeks consent for significant depths of excavation (for example a depth of 5.85m adjacent the lift in Unit 1), some of which is proposed to occur within 1.2m of adjoining properties. * The Geotech Report nominates an extent of 'significant influence' for the excavation as extending a horizontal distance from the excavation perimeter equal to at least twice the depth of the excavation. In considering cl 6.2 of LEP 2012 and applying this 'extent of significant influence' to the development application, I make the following comments. By reference to the architectural plans, the basement of Unit 1 has a proposed RL of 18.88. Utilising a mid-point natural ground level of RL 22.5 from the site survey, the basement is proposed to be excavated some 3.7m below the existing natural ground. Applying the Geotech Report findings, the horizontal 'extent of significant influence' of this excavation (setback 1.2m from the boundary of Dacre Street) would therefore be some 7.4m, thereby extending over 6m into the neighbouring property. * The relevant levels are illustrated in the following extract from Section B in Exhibit N: Figure 1:Extract of architectural plans in Exhibit N * The Geotech report identifies the following likely impacts from excavation within the extent of influence: "It is inevitable that the excavation will induce movements of the adjacent ground that falls within the area of influence of the excavation. The actual wall movements are highly dependent on the construction sequence, detailing and quality of installation, and should be closely monitored in critical areas." (Exhibit F) 1. No further detail is provided in the development application detailing how this likely impact on adjoining properties is proposed to be avoided, minimised or mitigated. 2. No other geotechnical evidence is before the Court, nor is the conclusion or findings of the Geotech Report contended by either party as being incorrect or inappropriate. 3. I accept the reasoning and evidence contained in the Geotech Report and have given it weight in considering the matters at cl 6.2(d) of LEP 2012. I am satisfied that the proposed development has the potential to detrimentally affect the existing and likely amenity of adjoining properties to the extent that they fall with the area of influence of the proposed excavations. 4. Further, I find that the development application lacks sufficient detail and certainty to allow the Court as the consent authority to properly consider the matters listed at subcl (3) of cl 6.2, and to be satisfied that the likely impacts of the proposed development will be acceptable. My reasoning follows. 5. The development application plans before the Court for assessment and determination lack sufficient detail to consider the matters that are a precondition to consent at cl 6.2 of LEP 2012. I am satisfied the insufficient information cannot be addressed by conditions of consent, as they give rise to uncertainty and impermissibly defer the consideration of the likely impacts of the development. 6. I note that the issue of insufficient information is contended by the Respondent and the Applicant has been on notice of the Respondent's concerns. Specifically, the Statement of Facts and Contentions filed by the Respondent on 6 December 2021 states: "10. The development application should be refused as insufficient information has been provided to allow for the proper assessment of the proposed development. … (vi) There is insufficient detail of how excavation and retaining walls are to be dealt with along the side boundaries, particularly noting the large amount of excavation proposed." (Exhibit 2) 1. Further, in the joint planning report Ms Read provides the following evidence in relation to insufficiency of information within the development application: "3.2.1 Retaining walls for the dwelling structure RR RR has no comment on the width of the retaining walls required to support the excavation for the dwellings – that is a matter for the Applicant. It is expected that retaining walls would also be required on the ground floor balcony/deck of Unit 1, which is below existing ground level and below what is to be the finished ground level/ The sheer number of retaining walls proposed (for both the dwellings and the boundary areas) illustrates that the level of excavation to achieve a dual occupancy (attached) on this site is unacceptable and demonstrates that the site is unsuitable topographically to the proposal. … 7.2.1 Built for and site width RR … - the applicant has not satisfactorily demonstrated how the excavation levels will resolve with the boundaries to 3 and 7 Dacre Street. The stairway on the boundary of 7 Dacre Street is up to 3.5m (approximately) below the ground level of 7 Dacre Street; … - The plans in Attachment D purport to now show adequate boundary resolutions for the excavated areas using retaining walls. They are inadequate because: - they do not show the heights of the newly proposed boundary walls; - If the walls are only to be provided where there is a ground level difference of 600mm or more between adjacent sites, how is the elevated site to be retained in those sections?; - there will need to be a retaining wall of 1 metre between the private open space of Units 1 and 2 on the subdivision boundary line due to the height difference between RL25.28 (Unit 1) and RL 28.18 (Unit 2). This is no shown on the plans. The plans do indicate a 1.8m high boundary fence. The private open space of Unit 1 will therefore be subject to an overbearing wall and fence of approximately 2.8m high that will negatively impact upon the amenity of the use of the private open space; and - In general, the resolution of the boundaries and retaining walls is a fundamental part of ensuring that this development is capable of being constructed without structurally damaging the neighbouring land or providing such high walls that the amenity for both the development and its neighbours is not unreasonably compromised. The plans have insufficiently set out the lengths and heights and there are no cross sections showing the relevant boundary walls. These matters ought to be resolved prior to any approval." (Exhibit 3) 1. I note that in the alternative Mr Boers argues that the amended plans, annexed to the joint report, firstly adequately show the extent of the retaining walls, and secondly that the depth of excavation proposed by the development application is neither unusual or avoidable. (Exhibit 3) 2. However, in the body of the joint report the experts note, as an agreed position, under the heading of "Excavation" that "further detail is required on the excavation resolution to both boundaries and the retaining wall for the ground floor balcony of Unit 1". (Exhibit 3) 3. Finally, Ms Read provides further evidence in the joint report in relation to excavation before concluding that the driver for the extent and depth of excavation is the desire for Unit 1 to have vehicular access of Dacre Street. It is her assessment that '… the plans require that the external staircase which is literally on the boundary with 7 Dacre Street, will be over 4 metres below the natural ground level of 7 Dacre Street at this point' and that 'the insertion of some notations on the Attachment D plans provides insufficient details on how this level of excavation can be supported, nor how it will appear to the site and neighbours'. (Exhibit 3) 4. As noted at [4], in response to the joint report, the Applicant amended their development application. In part this incorporated additional retaining walls and an increase in the width of the proposed walls in the basement level. 5. Ms Read and Mr Boers were called for cross examination and gave oral evidence on the amended plans. In particular Mr Flannigan, Counsel for the Respondent, questioned Mr Boers in relation to spot levels and the extent of excavation and retained required in the proposed development. Part of his oral evidence is extracted below: … "FLANIGAN: Do you see the plan of unit 1 and the balcony off the rumpus room in relation to unit 1? WITNESS BOERS: Yes. FLANIGAN: That balcony is approximately 1.8 metres lower than the adjoining lot, is it not? WITNESS BOERS: Just a moment. NURPURI: Commissioner we don't have a survey from neighbouring lots, I'm not sure whether or not-- FLANIGAN: We've got the RLs there, you can read the RLs. NURPURI: The boundary on our lot, and not on the neighbouring lot. FLANIGAN: On your lot then. HER HONOUR: Does Mr Boers have access to exhibit D which is the survey? If we can give him that as a reference. WITNESS BOERS: Sorry, 1.8 metres lower than the adjoining lot. FLANIGAN: Well, it's not the adjoining lot, it's at the boundary of-- WITNESS BOERS: It's at the boundary. FLANIGAN: --number 5. WITNESS BOERS: At the boundary of number 5. FLANIGAN: Do you agree with that then? WITNESS BOERS: I would need a minute to-- HER HONOUR: Take that time. WITNESS BOERS: Thank you, Commissioner. I need to qualify that by saying at its highest point. FLANIGAN: Yes. WITNESS BOERS: Because it is a-- HER HONOUR: Mr Flanigan, number 5 has an northern and a southern boundary. Is there one side that is particularly you want to direct him to? Is it the boundary of number 5 and number 7, is that what you're saying? FLANIGAN: It's the boundary of number-- NURPURI: Three, I understood. HER HONOUR: Sorry, I might have missed the beginning of the question. WITNESS BOERS: I can't say for sure, because I only have a spot level at number 3. Given aerial 31.41. I can't say precisely whether it's 1.8 metres because I need more data. I have only a spot level of 31.41 a spot level at number 3, and 31.41 and then the balustrade, the excavation of that balcony which I would take as at the balustrade being a retainable, is 26.5. I can't extrapolate exactly. There is excavation, but I don't have enough data to say it would be precisely. There will be excavation but I can't say precisely what - whether it would be 1.8 meters. I cannot say, I don't have enough spot levels to answer that. FLANIGAN: So your answer to the question is you don't know? WITNESS BOERS: There will - I don't know. There will be some excavation but I can't say it will be 1.8 metres-- FLANIGAN: Why is the retaining wall under the balcony? WITNESS BOERS: Under. I understand the retaining wall is part of the balustrade, I don't understand your question. Under the balcony? FLANIGAN: Well, that's the notation isn't it? WITNESS BOERS: The - yes, the retainer wall continues from the garage below. The garage below being it's external wall being excavated, being a 300 millimetre thick wall continues up and that's for engineering reasons. So, it - yes, I understand your question. If we look at DA07 in the top left hand drawing north east elevation, we can see that the balustrade of that balcony to unit 1, that balustrade is in fact a retaining wall which is a continuation of the retaining wall of the garage underneath. That's what that means. FLANIGAN: You think it's not necessary to demonstrate how the property boundary would be retained? WITNESS BOERS: My understanding is that the amount of excavation at the property boundary on that north eastern side, the - my understanding is the excavation will be 600 millimetres or less. Given that depth of excavation and also the setback to the development itself on that side being approximately 1.2 metres that that is sufficient to-- FLANIGAN: How can you say that when you don't know the finished level? WITNESS BOERS: Of the neighbour's property? FLANIGAN: Of the boundary? How can you determine? How can you say how much excavation will be required? WITNESS BOERS: The excavation is taken at the - the excavation to-- NURPURI: We have a sections plan. WITNESS BOERS: Yes. FLANIGAN: Can he answer the question. WITNESS BOERS: Yes, we have a DA07 sections which show at number 5 in red dotted line, the extent of excavation from the existing ground level at number 5 to the finished ground level; and apart from that bit of balustrade/retainer wall being the balustrade of that balcony to unit 1, otherwise the excavation will be 600 millimetres or less. And I have consulted with the structural engineer in our offices as to how you would retain and my information is that other means are generally acceptable, garden brick beds, or what have you. Garden beds et cetera would be adequate and would not need footings, heavy footings of the type required for retainer walls exceeding 600 millimetre depths. FLANIGAN: You see the notation on the plans hatched area in red shows extent where excavation is beyond 600 millimetres high, to engineer details? WITNESS BOERS: Which drawing are you referring to? FLANIGAN: The plan that you're looking - the drawing that you're looking at right now. Two notations to that effect? … WITNESS BOERS: Yes, it says to engineer details. FLANIGAN: Yes, where is the engineer details? WITNESS BOERS: That hasn't been provided at this DA stage as yet, however a geotechnical report was provided as part of the DA, which gave some guidance as to what would most likely be requested if encountered. So it's not appropriate at this stage to provide detailed engineer drawings; that's more of a construction certificate stage, to provide-- FLANIGAN: So when we're making reference to engineering details requiring alterations to your plan by providing a hatched are in red, no such details exist? WITNESS BOERS: Not at this stage, no." (Transcript 22 February 2022, pg 5) 1. Mr Boers oral evidence does not assist the Court to consider the matters that are a precondition to consent at cl 6.2 of LEP 2012 and serves to highlight the lack of certainty in the development application. The detail cannot be appropriately required as a condition of consent 1. The absence of detail creates uncertainty. The approach seemingly advanced by Mr Boer that it is appropriate for such detail to be provided later at Construction Certificate stage. I am satisfied that this approach is erroneous as it lacks finality, and the resolution of the issue may change the scope or design of the proposed development: Mison v Randwick Municipal Council (1991) 23 NSWLR 734. Further, it results in the consent authority having insufficient evidence to properly understand the likely impacts arising the development. In such circumstances, I cannot undertake the assessment mandated by s 4.15 of the EPA Act. Section 4.15(1)(b) of the EPA Act mandates a consideration of the likely impacts of the proposed development, including its environmental impacts on both the natural and built environments, and social and economic impacts on the locality. I find that there is uncertainty around what retaining structures and earthworks are proposed by the development, and the potential of those matters impacting the amenity of the site, and the amenity and stability of the adjoining neighbours. I am not satisfied that the missing detail can appropriately be dealt with by a condition of consent in this matter, as this results in significant critical elements of the application being uncertain in design, form and impact. 2. The consequence of there being insufficient information before the Court to adequately assess the impacts of the proposed development is that the Court cannot be satisfied that consent ought to be granted. The applicant bears the persuasive burden of so satisfying the Court: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]. Conclusion 1. For the reasons that are set out in the preceding, I have determined that the absence of information on how excavation, retaining and boundary conditions are proposed to be managed mean that the precondition at cl 6.2 of LEP 2012 is not met. Further, I find that there is insufficient information to consider the likely impacts of the proposed development, which is a mandatory consideration in the assessment of a development application, pursuant to s 4.15(1)(b) of the EPA Act. As a result, I cannot be satisfied that impacts from the proposed development are acceptable or can be satisfactorily addressed and managed. I therefore conclude that the development application should be refused on that basis. 2. Further, I find that the precondition at cl 7 of SEPP 55 is not satisfied. I find that it is necessary for the Applicant to provide information to allow the consent authority to complete a consideration of the likelihood of contamination Orders 1. The Court orders that: 1. The appeal is dismissed 2. Development Application 551/2020 at 5 Dacre Street Malabar, for demolition of existing structures and construction of a two storey attached dual occupancy development with one dwelling fronting Dacre Lane and one fronting Dacre Street is determined by way of refusal. 3. Exhibits are returned with the exception of Exhibit A, B, L and 2. ​​​​​​​………………………… D M Dickson Commissioner of the Court *********** 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: 05 April 2022