Land and Environment Court New South Wales Medium Neutral Citation: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256 Hearing dates: 9, 10 October, 20 November 2014, 11 February, 2, 12 March 2015 Decision date: 10 July 2015 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [153] Catchwords: DEVELOPMENT APPLICATION – Landscaping – Secondary dwelling – Development below foreshore building line - Whether consistent with objectives of applicable environmental planning instruments – Variation of height development standard Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Willoughby Local Environmental Plan 1985 Willoughby Local Environmental Plan 2012 Cases Cited: Chami v Lane Cove Council [2015] NSWLEC 1003 Ireland v Cessnock City Council (1999) 110 LGERA 311 Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Category: Principal judgment Parties: Joseph Screnci and Paula Screnci (Applicants) Willoughby City Council (Respondent) Representation: Counsel: Mr P Larkin SC (Applicants) Mr J Johnson (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicants) King & Wood Mallesons (Respondent) File Number(s): 10972 of 2013,10527 of 2014,10579 of 2014, 10802 of 2014, 10803 of 2014, 10804 of 2014, 10805 of 2014 Judgment 1. The seven appeals heard together in these proceedings concern a property at 57 Minimbah Road Northbridge (the site), owned by Mr and Mrs Screnci. There is a dwelling house and attached garage erected on the site, and a swimming pool and spa at the rear of the dwelling, and landscaping works between the dwelling and the northern boundary of the site at the foreshore of Sailors Bay. 2. On 15 November 2013 the respondent Council issued an Order to the applicants as owners of the property, under s 121B (Order 2, 12, 14, 15) of the Environmental Planning and Assessment Act 1979 (the Act) in relation to alleged non-compliances with development consents issued in 2004 (DA 2003/1260) and 2005 (DA 2004/715) and additional unauthorised works (the Order). The Order recited that an inspection of the subject premises on 27 February 2013 revealed unauthorised development had been carried out within the foreshore yard of the premises, which included (but not limited to): * Demolition and removal of the existing landscaped foreshore garden including the excavation of natural rock outcrops; * Two concrete terraces with masonry retaining walls and 1.4m wide curved concrete stairs adjoining either side of the spa structure; * A series of tiered sandstone retaining walls varying in height from 1.52m-2.5m, forming several terrace levels which have been filled and landscaped; * Extensive hard surface areas including a large 1.5m wide central staircase and a large irregular shaped paved area with a surface area of approximately 65sqm at the lower end of the site, adjoining Sailors Bay; * A new, re-aligned sandstone block seawall up to 1.34m in height and associated reclamation works adjoining the Mean High Water Mark (MHWM); * Numerous inconsistencies with Development Consent DA 2003/1260 involving demolition and removal of existing landscaping features; * Numerous inconsistencies with Development Consent DA 2004/715 involving demolition and removal of existing landscaping features. 1. The Order directed the applicants to undertake and complete works specified in a Schedule of Works within 120 days. The Schedule included demolition works, and landscaping and reinstatement works, and certification and documentation of those works on completion. On 13 December 2013 the applicants appealed against the Order pursuant to s 121ZK of the Act. That appeal is No 10972 of 2013, and is referred to in these reasons as "the Order appeal". 2. On 15 May 2014 the applicants lodged a development application DA2014/197 seeking consent for modifications to the existing landscaping on the site including a new timber stair, pergola, planting of native trees shrubs and ground covers. The applicants appealed to the Court pursuant to s 97 of the Act against a deemed refusal of the application on 4 August 2014. The Council refused the application on 22 September 2014. That appeal is No 10579 of 2014, referred to in these reasons as "the Landscape DA appeal". 3. On 15 May 2014 the applicants applied pursuant to s 149B of the Act for a building certificate for ancillary works in the area between the existing dwelling and the northern site boundary (Building certificate application 2014/26). The applicants appealed to the Court pursuant to s 149F of the Act against a deemed refusal of the application on 4 August 2014. The Council refused the application on 22 September 2014. That appeal is No 10527 of 2014, referred to in these reasons as "the Landscape Building Certificate appeal". 4. On 5 June 2014 the applicants lodged a further development application and an application for a building certificate. Development Application DA2014/252 sought approval for alterations and additions to the dwelling for the purposes of a secondary dwelling and ancillary outdoor terraces with two pergolas. Building Certificate application 2014/38 sought a building certificate for alterations and additions to the existing dwelling and terraces, being retaining walls for two terraces, paving to form terraces adjacent to an existing undercroft area, and stairs around the undercoft area to the rear yard. Those applications were refused on 22 September 2014, and on 26 September 2014 the applicants lodged appeals under s 97 and s 149F of the Act. The appeal against the refusal of DA2014/252 is No 10803 of 2014, and is referred to in these reasons as "the Secondary Dwelling DA appeal". The appeal against refusal of a building certificate is No 10804 of 2014 and is referred to in these reasons as "the Secondary Dwelling Building Certificate appeal". 5. On 25 July 2014 the applicants applied for a Building Certificate (2014/52) for internal alterations of the subfloor for a pantry, home theatre, corridor and relocation of a powder room. On 28 July 2014 the applicants lodged Development Application DA2014/324 which sought consent for internal alterations of the subfloor for the purposes of a pantry, home theatre and corridor and relocation of a powder room. Those applications were refused on 22 September 2014, and on 26 September 2014 the applicants lodged appeals under s 97 and s 149F of the Act. The appeal against the refusal of DA2014/324 is No 10802 of 2014, and is referred to in these reasons as "the Subfloor alterations DA appeal". The appeal against refusal of a building certificate is No 10805 of 2014 and is referred to in these reasons as "the Subfloor alterations Building Certificate appeal". The site and locality 1. The three storey dwelling on the site is set back approximately 4.6m from the Minimbah Road frontage. The site slopes steeply down from Minimbah Road to the waterfront with a slope of approximately 35 degrees, and its northern boundary is mean high water mark to Sailors Bay. The property viewed from the jetty is shown in the following photograph, annexed to the s 121B Order: 1. The following survey plan (8 May 2014) shows the location and heights of the retaining walls and other structures on the site between the dwelling and the foreshore: 1. Mr Dickson and Ms de Carvalho, expert witnesses for the applicants and the Council respectively, agreed that this survey drawing of the existing works shows the as built profile of the foreshore zone and terraces including levels (ex 9, p 4). The numbering of the retaining walls on this drawing (W1-W5, E1-E5) identifies each of the existing walls as referred to in the evidence. 2. The properties on the northern side of Minimbah Road are generally located along the road alignment, with varying extent of vegetation, both remnant open forest/woodland structure with some exotic trees; and with understorey alteration to the foreshore vegetation with native and exotic shrubs; regular stone retaining walls and paths and steps to access the waterfront at Sailors Bay. To the north across Sailors Bay, some 800m away, is Castlecrag. The hearing of the appeals 1. A conciliation conference under s 34 of the Land and Environment Court Act 1979 was conducted for the Order appeal on 6 March 2014 by another Commissioner, and terminated on 27 March 2014. The hearing of the Order appeal was listed for 12 and 13 June 2014. Those dates were vacated on the application of the applicants, having foreshadowed that regularising applications would be made to the Council. Later hearing dates for 13 and 14 August 2014 were vacated on 24 July 2014 on the application of the applicants, on the basis that the regularising applications were pending. Notices of determination of the three development applications and the three building certificate applications were sent by the Council on 1 October 2015 (exhibit 2, tabs 36-41). The hearing of the Order appeal, together the three development application appeals and the three building certificate appeals, commenced on 9 October 2014 with a site view; additional days beyond the two days originally allocated for the hearing of the Order appeal were required. Issues 1. The issues raised in the Landscape DA appeal and the Landscape Building Certificate appeal concern the construction and stability of the structures sought to be retained, from an engineering and geotechnical perspective; consistency of the scale, form and design of the development as now proposed with the planning controls, including compliance with the applicable height control and the requirements for development below the foreshore building line; and adequacy of the information provided. 2. In the Secondary Dwelling DA appeal and Secondary Dwelling Building Certificate appeal, the issues concern the construction and structural adequacy of the structures sought to be retained; consistency of the scale, form and design of the undercroft structure and terrace with the planning controls; whether a secondary dwelling is permissible; and compliance with height and floor space ratio standards. 3. The issues in the Subfloor alterations DA appeal and the Subfloor alterations Building Certificate appeal relate to construction and structural adequacy of the works sought to be retained, and the increase in gross floor space. During the course of the hearing the applicants provided additional specifications and reports of inspections relating to the engineering detail of the home theatre and other internal alterations (exhibit T). The Council is satisfied with that material, and that on the basis of that material these two appeals can be resolved. 4. In the Order appeal, the Council relies on a draft modified order (exhibit 18), which would require demolition of some structures, construction or reconstruction of other structures, and additional planting to include four Angophora costata (referred to in the evidence and submissions as "the Council scheme"). The outcome sought by the Council in its proposed modified order is apparent from the Landscape Plan annexed to exhibit 18: Evidence 1. The hearing commenced on site with a view, which included a view from the water, and from the adjoining property at 55 Minimbah Road. 2. Submissions made on behalf of the owner of 59 Minimbah Road opposing the three Development Applications and the Building Certificate applications 2014/52 and 2014/38 are included in the Council's bundle of documents (exhibit 2, tabs 30, 32, 33, 34, 35). During the course of the hearing the applicants tendered a letter from the owner of 55 Minimbah Road dated 29 December 2014 (exhibit Y), noting that she had authorised access to her property during the view, and that she endorsed the landscaping plans proposed by the applicants in preference to those suggested by the Council, and that she had no objection to the upper curved terrace located below the spa or to the construction of the secondary dwelling in the void space under the spa. 3. The applicants relied on expert evidence from Mr Nigel Dickson (architect), Mr David Malorey (geotechnical issues and structural engineering) and Mr Michael Barnett (landscaping). The Council relied on expert evidence from Ms Noni de Carvalho (planning), Mr Anthony Powe (landscaping), Mr Tony Colenbrander (geotechnical engineering issues) and Mr Guy Paroissen (arborist). 4. A statutory declaration dated 8 October 2014 by Mr Michael Rimac, builder, annexing a number of photographs taken during construction during the period September 2009 to July 2011, is in evidence on a limited basis, as to the technical information relied upon by the geotechnical engineers in their evidence, and for the annexed photographs taken during construction (exhibit 12). Planning controls 1. The Willoughby Local Environmental Plan 2012 (the 2012 LEP) commenced on 13 January 2013. The aims of the 2012 LEP relevantly include: 1.2 Aims of Plan … (2)The particular aims of this Plan are as follows: … (c) for environmental protection: (i) to identify, protect and enhance environmentally sensitive areas such as native vegetation and fauna, foreshore areas, open space and areas of high scenic landscape value, and (ii) to allow development at a scale that is sensitive to environmental constraints, and (iii) to control and manage any adverse environmental impacts of development, and (iv) to prevent loss of life and property by bush fires, by discouraging the establishment of incompatible uses in bush fire prone areas and incorporating as part of compatible developments protective measures that minimise bush fire risk without unacceptable environmental degradation, including: (A) construction techniques and materials to maximise their resistance to bush fire, and (B) adequate measures to enable the safe evacuation of people from the land and enable access to that land by emergency services during a bush fire, (d) for urban design: (i) to ensure development embraces the principles of quality urban design, and encourages innovative, high quality architectural design with long-term durability and environmental sustainability, and (ii) to promote development that is designed and constructed: (A) to enhance or integrate into the natural landform and the existing character of distinctive locations, neighbourhoods and streetscapes, and (B) to contribute to the desired future character of the locality concerned, and (iii) to ensure development design contributes positively to, and wherever possible facilitates improvements to, the public domain, and (iv) to preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including significant gateways, views and vistas, and (v) to ensure that development design takes into consideration crime prevention principles, (e) for amenity: (i) to maintain and enhance the existing amenity of the local community, and (ii) to reduce adverse impacts from development on adjoining or nearby residential properties, (f) for housing—to provide opportunities for a range of housing choice in Willoughby to cater for changing population needs in accessible locations, … 1. Under the 2012 LEP the land is zoned E4 Environmental Living. The objectives of the zone, to which regard must be had under cl 2.3(2), are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To ensure that development preserves and enhances the natural features and bushland within the immediate locality (including natural vegetation, geological features, drainage patterns, the water table and the relationship of development to the natural topography) and does not increase bush fire hazard potential. • To maintain the scale, character and streetscape of individual localities. • To retain and enhance residential amenity, including views, solar access, aural and visual privacy, foreshore setting, landscape quality and heritage value. 1. Part 4 of the 2012 LEP provides the principal development standards. Clause 4.3 provides for Height of Buildings by reference to the Height of Buildings Map. Clause 4.3A provides exceptions to height of buildings, including sub-clauses (6) and (7): (6) The height of a secondary dwelling must not exceed 5.7 metres if it is separate from the principal dwelling. (7) The height of a building on land in the foreshore area must not exceed 3.5 metres above ground level (existing) on any part of the lot. 1. Clause 4.4 provides for Floor Space Ratio (FSR), the maximum for the site being 0.50:1. Clause 4.6 permits variation of the development standards. 2. Clause 5.4 provides controls relating to miscellaneous permissible uses, including secondary dwellings: (9) Secondary dwellings If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater: (a) 60 square metres, (b) 10% of the total floor area of the principal dwelling. 1. A "secondary dwelling" is defined: secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. Note. See clause 5.4 for controls relating to the total floor area of secondary dwellings. Secondary dwellings are a type of residential accommodation—see the definition of that term in this Dictionary. 1. Clause 5.7 provides: 5.7 Development below mean high water mark (1) The objective of this clause is to ensure appropriate environmental assessment for development carried out on land covered by tidal waters. (2) Development consent is required to carry out development on any land below the mean high water mark of any body of water subject to tidal influence (including the bed of any such water). 1. Clause 6.2 applies to earthworks, defined to mean "excavation or filling": 6.2 Earthworks (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to other development for which development consent has been given. (3) Before granting development consent for 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, (b) the effect of the proposed 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 proposed 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 watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. Note. The National Parks and Wildlife Act 1974, particularly section 86, deals with harming Aboriginal objects. 1. Clause 6.4 provides: 6.4 Limited development on foreshore area (1) The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. (2) Development consent must not be granted for development on land in the foreshore area except for the following: (a) single storey structures such as boat sheds, slipways and jetties that have a direct functional relationship with the waterway, (b) inclinators, stairs and other structures designed to provide pedestrian access to the waterway, (c) development for the purposes of barbecues, cycleways, fences, garden sheds, pergolas, picnic facilities, public amenities, retaining walls, swimming pools or walking trails. (3) Development consent must not be granted under subclause (2) unless the consent authority is satisfied that: (a) the development will contribute to achieving the objectives for the zone in which the land is located, and (b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and (c) the development will not cause environmental harm such as: (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (d) the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and (f) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) sea level rise or change of flooding patterns as a result of climate change have been considered. 1. The Willoughby Development Control Plan 2006 (the DCP) applies. Part C- General Development Guidelines includes provision at C10 Foreshore Building Line for development below the foreshore building line (FBL). The intent (C10.1) is: 1. To preserve and enhance the natural features and vegetation of the foreshore area for its scenic and ecological value and to ensure development does not detract from the natural character of these areas. 2. To encourage the protection and regeneration of land which forms an integral part of the foreshore setting and to maintain the amenity of foreshore properties. 1. Section C10.2 sets out Performance Criteria. Part A Development below FBL states: The FBL is positioned to retain an area of land between the shoreline and dwellings or significant structures and to retain the amenity, solar access to and views from neighbouring properties. This area is to be predominantly occupied by landscaping and is to be free of buildings. 1. Part B Views and Amenity includes objectives for the design and siting of minor development permitted below the FBL. Section C10.3 Controls includes the statement that land below the FBL, known as the foreshore area, "should be left predominantly for open space or planting", and lists the structures permitted to be erected on land between the foreshore area and the water. Section C10.3 refers to cl 4.3A of the 2012 LEP and notes that the height of a building on land in the foreshore area "must not exceed 3.5 metres above ground level (existing) on any part of the lot". Under the heading "Treatment of structures or works within the foreshore building line", section C10.3 states that the visual impact of minor structures in the foreshore area "should be minimised with screen planting". Extensive earthworks "such as levelling, filling and high retaining walls are not to be carried out in the foreshore area". Paved surfaces within the foreshore area "should be minimised, with the predominance of soft landscaping of native plants". Section C10.3 addresses retaining walls and sea walls, and stairs and pathways, in the following terms: Retaining walls and sea walls High retaining and screen walls should be avoided. These walls should be broken by steps or further terracing to relieve their height. Retaining walls should generally be no more than 1m high above natural ground level. The natural topography of the site should be retained. Seawalls should be avoided where the foreshore is in a natural state unless the absence of such walls will lead to accelerated erosion of the shoreline or generate risk to the existing shoreline. Materials used for terraces, seawalls and retaining walls visible from the water or bushland should be in harmony with the natural vegetation, such as the use of natural sandstone blocks, timber etc., or screened by appropriate planting. Unfinished concrete blockwalls are not permitted. Stairs and pathways • The width of stairs and pathways should be kept to the minimum required for safe pedestrian access. • Materials should be compatible visually with the surrounding landscape, using stone or timber. • Stairs and paths should follow the natural topography of the land and not cut through major rock outcrops or cause major trees to be removed. 1. The site is in the Northbridge residential locality area under Part D1 Dwelling Houses, Dual Occupancies and Secondary Dwellings of the DCP, which notes that geologically the peninsula area is Hawkesbury sandstone; the vegetation of the foreshore areas "is remnant bushland consisting of open forest/woodland structure", and "a partially altered understorey is present in most foreshore areas". The desired future character is to "retain and enhance the qualities of the Northbridge locality …", by a range of measures specified at p 19 of Part D1, including: 7. Retention of significant trees and areas of significant natural vegetation. Plant locally indigenous trees and dense vegetation, both within the site and to the street frontage to maintain the natural landscape characteristics of the locality; 8. Avoiding loss of vegetation between and around dwellings to reduce the prominence of built form when viewed from Middle Harbour and from other vantages; 9. Avoidance of imposing building forms of high wall facades, particularly in close proximity to the streetscape or high fencing to the street with shallow setbacks, having little ability to ameliorate the built form with dense planting and tall trees; … 12. Encouraging indigenous revegetation of foreshore properties to protect the visual amenity of the natural foreshore areas. 1. The performance criteria for Character, Design, Streetscape and View Sharing (section D1.4) include building design "to minimise overshadowing, overlooking and visual impact of the development on the street and adjacent properties" by a range of measures; and the design of buildings "should attempt to break up long lines of walls and bulky or unrelieved facades", including by landscaping. Relevant provisions for landscaping in section D1.8.1 include: 1. Landscaped areas on site will be designed to: i. Be sensitive to site attributes such as significant trees, land capability (soil type and slope), microclimate (especially access to sunlight), views and natural features such as rock formations, watercourses and cliff escarpments; … vii. Minimise the dominance of buildings when viewed from the street, foreshore or bushland; … x. Reinforce the landscape character and important environmental qualities of the locality; 1. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the site. The aims of the SREP include: 2 Aims of plan (1) This plan has the following aims with respect to the Sydney Harbour Catchment: (a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained: (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations, (b) to ensure a healthy, sustainable environment on land and water, (c) to achieve a high quality and ecologically sustainable urban environment, (d) to ensure a prosperous working harbour and an effective transport corridor, (e) to encourage a culturally rich and vibrant place for people, (f) to ensure accessibility to and along Sydney Harbour and its foreshores, (g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity, (h) to provide a consolidated, simplified and updated legislative framework for future planning. (2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles: (a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good, (b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores, (c) protection of the natural assets of Sydney Harbour has precedence over all other interests. 1. It was common ground that the site is within the Foreshores and Waterways Area, referred to in cl 2(2), under the SREP. 2. Division 2 provides matters to be taken into consideration in determining whether to grant development consent. Clause 21 specifies the matters to be taken into consideration in relation to biodiversity, ecology and environment protection, including (e) "development should protect and reinstate natural intertidal foreshore areas, natural landforms and native vegetation", and (f) "development should retain, rehabilitate and restore riparian land". 3. Clause 25 provides: 25 Foreshore and waterways scenic quality The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores. 1. Clause 26 provides: 26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised. 1. Clause 28 constitutes the Foreshores and Waterways Planning and Development Advisory Committee, the functions of which include under cl 29 responding to referral of certain development applications. Under cl 29 the consent authority cannot consent to such development unless it has referred the application and taken into consideration any submission received from the Advisory Committee within 30 days after the date on which the application was forwarded to the Committee. In these proceedings advice from the Committee is in evidence, however it was common ground that this was not received by the Council within the 30 days provided in cl 29(1). 2. The Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (the Sydney Harbour DCP) applies to all development proposals within the Foreshores and Waterways Area under the SREP. The planning principles for that area include: • development should protect, maintain and enhance the natural assets and unique environmental qualities of Sydney Harbour and its islands and foreshores, … • development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores, 1. The relevant performance criteria are provided in Table 4 (terrestrial ecological communities of low conservation value) which include the intent to "conserve and enhance vegetation". Section 3: Landscape Assessment provides the following general aims (3.2): All development should aim to: • minimise any significant impact on views and vistas from and to: – public places, – landmarks identified on the maps accompanying the DCP, and – heritage items; • ensure it complements the scenic character of the area; • protect the integrity of foreshores with rock outcrops, dramatic topography or distinctive visual features; • provide a high quality of built and landscape design; and • contribute to the diverse character of the landscape. 1. The site is included in Landscape Character Type 3, which provides the following Statement of Character and Intent and Performance Criteria: ii. Statement of Character and Intent This area is characterised by the natural interface between water and land with rocky outcrops and steep topography dominating the foreshore. Residential development in the surrounding areas provides a backdrop. The intent in this area is to allow suitable development that is of an appropriate scale and siting to maintain natural shorelines and vegetation. iii. Performance Criteria Any development within this landscape is to satisfy the following criteria: • development at the water's edge has been sited so that the view of the natural shoreline remains predominant; • significant natural features such as rock outcrops, dominance of the tree canopy, native vegetation, ridgelines, rock ledges and platforms are protected and enhanced; • development is sited and designed so that the visual dominance of the tree canopy on the slopes and along the skyline is maintained; • development retains the character of the enclosed waterbody or bay by maintaining the visual dominance of the natural features and preserving key points and entry into these areas in their natural state; and • overall colours should match native vegetation and geological features as closely as possible with trim colours drawn from natural elements such as tree trunks and stone. 1. Section 5: Design Guidelines for Land-Based developments states (5.1): This part of the DCP applies to development that would be located above MHWM. These areas are often covered by other planning instruments. This plan is intended to reinforce existing controls with the specific purpose of ensuring that development is sympathetic to the natural and cultural qualities of the area covered by SREP (Sydney Harbour Catchment) 2005. 1. Section 5.4 Built Form provides that buildings and other structures should generally be of sympathetic design to their surroundings, and includes in its guidelines: • the cumulative visual impact of a number of built elements on a single lot should be mitigated through bands of vegetation and by articulating walls and using smaller elements; 1. Section 5.14 Inclinators, Stairs and Driveways, includes as objectives, to: • minimise the visual intrusion; and • minimise disturbance to topography and vegetation. 1. The site plan DA-001 annexed to exhibit 15 shows the FBL: 1. This diagram was prepared by Mr Dickson's staff, based on Ms de Carvalho's statement that the 1995 LEP and the 2012 LEP show it as 29m from the front boundary on the eastern side and 41m from the front boundary on the western side (ex 15, p 7). It was common ground that this reflects the location of the FBL on the site. 2. The applicable local environmental plan at the time the work the subject of the Order was carried was the Willoughby Local Environmental Plan 1995 (the 1995 LEP). The aims and objectives of the 1995 LEP included: 2 Aims and objectives The aims and objectives of this plan are: … (b) to allow development at a scale that is sensitive to environmental and planning constraints, and (c) to control and manage adverse environmental impacts of development, and (d) to maintain and enhance the amenity of residential areas, for example, by protecting these areas from inappropriate development, and (e) to ensure that residential development conforms with the scale and character of the individual residential development areas, and (f) to accommodate various housing types, and … 1. The site was in the 2(a2) - Residential "A2" Scenic Protection Zone, which had the specific objective: To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas, are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. 1. The general objectives for the low density residential zones (2(a), 2(A2)) were provided in cl 14A: (a) To provide residential environments free from any adverse impacts of non-residential uses, and (b) To maintain the scale, character and streetscape of individual localities, and (c) To retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality, and (d) To retain the heritage values of particular localities, and (e) To minimise the potential for adverse impacts of new development on the efficiency and safety of the road network. 1. Clause 13C provided for tree preservation orders. 2. Clause 16 provided for development below the FBL: 16 Foreshore building line (1) In this clause: foreshore land means land between a water body and the dominant ridgeline that faces the water body. modified foreshore land means foreshore land: (a) on which the natural vegetation structure has been substantially altered or removed, or (b) the topography of which has been substantially modified by human development, such as excavation, retaining walls or similar structures. natural foreshore land means foreshore land: (a) on which the natural vegetation remains or, if altered, is still representative of the structure and floristics of natural vegetation, or (b) the topography of which has not been substantially altered by human development. (2) The objectives of this clause are: (a) to preserve and enhance the natural features and vegetation of those localities where the land meets or is in close proximity to the water, and (b) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development, and (c) to promote a consistent application of foreshore building lines in comparable situations according to the characteristics of sites and foreshores in the localities concerned and with regard to the objectives set out below: (i) for natural foreshore land—to ensure that development retains the characteristics of the natural environment and scenic quality of the foreshores of Lane Cove River, and Middle Harbour and its tributaries, where they are in a predominantly natural state, and (ii) for modified foreshore land—to ensure that the siting of development provides an area which is left clear of buildings and structures, so as to protect the environment and the amenity and scenic quality of the foreshores of Lane Cove River, and Middle Harbour and its tributaries, where they are predominantly developed, and (iii) for residents of foreshore land—to control the siting of buildings and structures on the foreshores of Lane Cove River and Middle Harbour and its tributaries so that the amenity and views of foreshore residents are preserved. (3) Foreshore building lines are shown by red lines on sheets 12a, 12b, 12c, 12d, 12e, 12f and 12g of the map marked "Willoughby Local Environmental Plan 1995 (Amendment No 52)". (4) Except with the consent of the Council granted in accordance with subclause (5), a building must not be erected and work must not be carried out between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed. (5) The Council may, after considering the probable aesthetic appearance and environmental impact of the proposed structure or work in relation to the foreshore, consent to the erection of: (a) single storey structures, such as boatsheds and jetties, that have a direct functional relationship with the water, or (b) inclinators, stairs or other structures designed to provide pedestrian access to the waterway, or (c) structures such as swimming pools below or at the surface of the ground, barbecues, pergolas, retaining walls, public amenities and garden sheds, between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed. 1. It was common ground that the site is "modified foreshore land". 2. Clause 17 applied to land within a "scenic protection area", defined to be land in the 2(A2) zone. Under cl 17(2) the Council could not consent to the carrying out of any development within a Scenic Protection Area unless it had considered the appearance and impact of that development on: (a) the amenity of surrounding properties, including loss of views to and of the foreshore, bushland and any waterways, and (b) the scenic qualities of the foreshore, including whether man-made structures visually dominate the natural landscape through excessive height and bulk and whether buildings, structures and other works are aesthetically and sympathetically integrated with the form and features of the local topography, and (c) bushland within the immediate locality, including loss of natural vegetation and significant geological features, disruption of drainage patterns, alterations to water tables and increased bushfire hazard potential, and (d) achieving the objectives of any development control plan applying to those areas. Prior consents and approvals 1. The development consents and approvals applicable to the site are summarised in the Council's Statement of Facts and Contentions in Reply in the Order appeal (ex 3). In summary, those consents and approvals are: * Development Consent No 89/286 issued by Council on 25 August 1989 for "construction of a slipway, concrete retaining wall and relocation of stone sea wall as shown on drawing dated June 1989"; * Building permit No 976/89 issued with development consent No 89/286 on 24 May 1990 for a "slipway"; * Development Consent No 1997/0765 issued by Council on 12 March 1998 for a "swimming pool"; * Building approval No 971071 (associated with development consent No 97/765) issued on 9 March 1998 for a "swimming pool"; * Development Consent DA 2003/1260 issued by Council on 9 January 2004 (amended in Land and Environment Court proceedings No 10201 of 2004) to "reshape existing swimming pool and construct new spa and surrounds". The conditions included condition 33 requiring that existing gardens and landscaped areas be retained and existing soft landscaped areas not to be substituted for paving unless shown in the approved plans; and condition 43 requiring that any foreshore landscaping to comprise locally indigenous species representing original plant communities; * Construction certificate No CC 2004/388 (associated with development consent DA 2003/1260) issued by Council on 11 June 2004 to "re-shape existing swimming pool and construct new spa and surrounds"; * Development Consent DA 2004/715 issued by Council on 10 March 2005 for "alterations and additions to existing dwelling", subject to conditions including condition 26 in the same terms as condition 33 of development consent DA 2004/1260, and condition 43 granting approval for removal of any trees growing within the building footprint of the approved structures, any declared noxious plant, and any tree species listed in the Council's Tree Preservation Order. 1. Documentation and plans for each of these consents and approvals are in evidence (exhibits 1, 2). 2. In the joint report of the conference on town planning matters between Mr Nigel Dickson and Ms Noni de Carvalho on 3 October 2014 (ex 9), it was agreed that the development covered by the s121B Order is: * Clearing and removal of trees and vegetation * Excavation of foreshore land * Alterations to land levels or topography * Construction of retaining walls forming four terrace levels each side of stairs * Construction of a large irregularly shaped hard paved terrace area adjacent to the water * Construction of a new re-aligned sandstone seawall * Reclamation work with the wall and terrace adjacent to the water * Large central stair within the foreshore area * Curved stairs each side and increased height to the spa pool deck under-croft space * Raised concrete terraces and retaining walls adjacent to the spa pool and deck under-croft space 1. Other development where retrospective approval is sought was agreed to be the use of the subfloor space for habitable purposes – home theatre, powder room, pantry and corridor; and use of the under-croft space below the spa pool and spa deck for habitable purposes. 2. Mr Dickson and Ms de Carvalho agreed that the development so identified required prior consent under the current and former planning controls, and that it did not comply in certain specified respects with the relevant conditions of development consents 2003/1260 and 2004/715 (ex 9, p 3). 3. Mr Dickson and Ms de Carvalho agreed: 1. that the form and character of the foreshore landscape prior to Development Application 2003/1260 for alterations to the pool and construction of the spa pool being built can be determined as depicted on a survey plan lodged with the development application in 2003; 2. the Landscape Plan lodged with Development Application 2004/715 for alterations and additions to the house showed no change to the foreshore area. It showed six trees. Trees 1, 2, 3, 4 and 5 are grouped in the north eastern portion of the foreshore area, and as listed in the drawing are Tree 1: Camellia reticulata (originally from SW China); Tree 2: a Callistemon (identified as dead); Tree 3: Barchychiton acerifolium (Illawarra Flame); Tree 4: Arecastrum romanzoffianum (Cocos palm); Tree 5: Metrosideros excelsa (NZ Christmas Bush). Tree 6 adjacent to the western boundary was a Photinia clabra. Unnumbered at the south western boundary were a clump of banana palms; and 3. the photograph of the site from the waterfront before the house alteration and additions were constructed shows the landscape of the house prior to the construction being undertaken, and apart from those numbered trees there appeared to be a large pine tree shaped form in the middle of the foreshore setback zone and shrubs. Approach to the appeals 1. The Subfloor alterations DA and Building Certificate appeals seek regularisation of existing works, whereas the Landscape DA and Building Certificate appeals, and Secondary Dwelling DA and Building Certificate appeals, seek both regularisation of some existing works and consent for additional works. The Order appeal, and the Council's proposed modified order, relate to the part of the site which is the subject of the Landscape and Secondary Dwelling appeals. 2. The applicants have not contested the basis on which the Order was issued, or the need to regularise the works undertaken on the site and their prospective use, and to approve additional development, by means of the applications for development consent and building certificates. I note at the outset that it is no part of the assessment on the merits of any of the applications the subject of these appeals that unauthorised works or works contrary to the conditions of any previous development consent, or in the absence of development consent, have been undertaken on the site: Ireland v Cessnock City Council (1999) 110 LGERA 311 at [38]. In Chami v Lane Cove Council [2015] NSWLEC 1003 at [154]-[156] Moore SC stated the approach to be adopted: 154 The appropriate position for me to take has been long settled. Commencing with the decision of the Full Court of the Supreme Court of South Australia in Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17, the position has always been clear since then that a consent authority granting an approval for a development subject to conditions is required to assume that those conditions will be obeyed. Past conduct is not a relevant consideration in a merit assessment process; any such issues are confined to enforcement through different legislative mechanisms (and in jurisdictions not able to be exercised by Commissioners of the Court). Bignold J in Ireland (No 1) from (86) made it clear that Kouflidis was equally applicable in circumstances where there was an application for a building certificate accompanied by an application for consent to use such structure as was the subject of the building certificate application. 155 In Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408, Preston CJ traced the continuing line of authority from Kouflidis and confirmed that that line remained good law in New South Wales. 1. The powers of the Court in relation to the Order appeal are provided in s 121ZK(4) of the Act: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 1. Determination of the Order appeal, and the exercise of the powers conferred by s 121ZK(4) of the Act specifying works to be undertaken, would authorise the carrying out of those works without requiring any additional consent (s 121O). 2. Section 149F(3) of the Act provides the powers of the Court on an appeal in relation to refusal of a Building Certificate: (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 1. As noted by Moore SC in Chami at [62]-[66], the authorities establish (at least) three different paths for the Court to consider following in determining an appeal under s 149F, depending on whether there is any approved use for unauthorised works which are to be regularised. The discretionary scope given to the Court under s 149F(a) and (c) is wide, and in circumstances where there is no separate application to establish or change a use, the appropriateness or otherwise of regularising the unauthorised works in terms of undertaking any form of planning merits assessment of their impacts is conflated into and forms part of the building certificate application determination process, as a form of notional development assessment: Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276. 2. In the circumstances of these appeals where there are actual development applications relating to the works for which the three building certificates are sought, and in particular where consent is required for additional works to be undertaken, the appropriate course is to determine the two development applications that remain in issue, that is, the Landscape DA appeal and the Secondary Dwelling DA appeal, by undertaking the assessment required by s 79C(1) of the Act. Once those determinations are made, the Landscape and Secondary Dwelling Building Certificate appeals can address the issue of structural adequacy of the as built structures that are proposed to remain, and identify what works if any might be required to rectify any deficiencies, and, to the extent required, undertake the notional planning assessment against the provisions of the controls in place at the time the work was carried out as identified by Bignold J in Ireland v Cessnock City Council (1999) 110 LGERA 311. The Order appeal can then be determined in a form that directs the applicants to undertake works consistent with whatever is approved in the Landscape and Secondary Dwelling DA and Building certificate appeals. 3. That course is consistent with the decision of Pain J in Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74, where her Honour rejected a challenge to a decision of a Commissioner determining whether development consent should be granted for prospective use of a shed and then directing the council to issue a building certificate, there being no issue as to structural adequacy of the shed. 4. Consistent with that approach, and with the agreement of the parties, the remainder of these reasons address the Landscape DA and the Secondary Dwelling DA. Landscape DA 1. The Landscape DA has been amended during the course of the appeal (exhibits AA, DD). The Site Plan (exhibit AA, drawing DA101 B) shows the development as now proposed: 1. In summary, the proposed development now incorporates a lowering of the retaining walls E2, E3, E4, W2, W3 and W4; rebuilding of the side boundary walls and reconfiguration of the stairs; addition of a timber pergola on the existing tiled area at the foreshore; and proposed plantings. The trees included in the proposed plantings are one Acacia floribunda (6m high x 3m wide); two Banksia integrifolia (10m x 5m); three Banksia serrata (10m x 5m); and three Glochidion ferdinandi (10m x 5m). All but four of those trees are to be located along the side boundaries. 2. The outcome of the development as now proposed in the Landscape DA appeal is illustrated in the following photomontage: 1. As noted in paragraph [16] above, the Council has provided a proposed modified Order with a plan for the works and outcome it proposes, which it would seek to have implemented through compliance with that modified order (ex 18). While at times in evidence the experts undertook a comparison between the Council scheme and that proposed by the applicants, that is not the basis on which the Court must assess the Landscape DA appeal. The task of the Court is to determine the particular development application before the Court, by assessing the impacts of the development proposed on the environment existing at the time of determination of the application: Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [55]. Just as that task cannot be undertaken by a comparison with an earlier unimplemented consent, it should not in my view be undertaken by making a comparison with the Council scheme. 2. The applicants submit that in assessing the impacts of the proposed development the correct baseline is the position before the works were undertaken, described as ramshackle retaining walls, a range of exotic species, and a very large dead tree, similar to the current situation on the adjoining property at 55 Minimbah Road at the time of the view. What the applicants propose is far superior to that and is an enhancement and improvement of the foreshore area. There will be good screening of the retaining walls through proposed plantings, which all the experts agree are appropriate and endemic to the area, and no increase in height of the walls at the foreshore level. The applicants submit that the proposed pergola is appropriate as a lightweight structure similar in context to many others. The applicants propose planting of substantial trees however there are concerns with planting Angophora costata as sought by the Council, based on the engineering evidence as to impacts on the retaining wall structures and the potential for containerisation of the trees through confined space: that would need substantial works to create a containerised environment with the risk of mortality and the need to install irrigation. Even if there were to be planting of Angophora, it would not be appropriate to plant them at the harbour wall, but possibly elsewhere on the site. The ongoing survival of such large trees would be dependent on irrigation, and would be a very expensive solution which would create other problems. In relation to the sea level retaining wall, the applicants rely on the original position that it would be inappropriate to raise it. The applicants submit that the Council scheme would have much greater construction impacts than the development proposed in the Landscape DA and would require removal of extensive material by barge which would require approval, be expensive, and have additional impacts. The applicants submit that their proposed retaining walls are appropriate, both in height and angle from the side boundaries. 3. The applicants submit that the proposed development is consistent with the objectives of the E4 zone under the 2012 LEP, which is the primary planning control, as an improvement on consideration of aesthetic values; it is consistent with the natural topography; and there is no issue with streetscape. It must be accepted that it is a modified foreshore environment and cannot be returned to a pre-European settlement state, and the proposal enhances the harbour by breaking up the bare unscreened concrete wall as approved in the earlier development consent. 4. The Council's contentions (ex 5) included contentions that consent should be refused on the basis of inconsistency with provisions of the SREP, the Sydney Harbour DCP, the objectives of the E4 zone under the 2012 LEP, the desired future character for this part of Northbridge under the DCP and the provisions of Part C10 of the DCP, and exceedance of the maximum height control in cl 4.3A(6) of the 2012 LEP for the upper retaining wall. The Council submits that the Landscape DA involves up to 500 tonnes of fill, engineered retaining walls up to 2.5m high, and a staircase and landing, and it is not sufficient to say that it is better than the baseline. The proposal is contrary to the desired future character of the area, a consideration required by the 2012 LEP. The E4 zone is not an ordinary residential zone. In considering the objectives of the E4 zone, while the Council agrees that the issue is primarily about aesthetic values, the proposal is not consistent with the objectives of preserving and enhancing the natural features of the locality including topography, or retaining and enhancing residential amenity, including the foreshore setting and landscape quality. In terms of the proposed plantings, the Council submits that on the evidence planting of Angophora costata is appropriate if the retaining walls are lower and not engineered as the applicants propose. The proposed angle of the retaining walls is not consistent with the original contour lines across the site. There is a need even on the applicants' proposal for excavation and reconstruction of the retaining walls, and it is inappropriate to raise the eastern boundary wall as proposed by the applicants. In terms of the SREP, the proposed development is not consistent with the aims and principles in cl 2(2)(b), and does not meet cl 21(f). The engineering evidence 1. There is extensive geotechnical engineering evidence before the Court, relevant for both the Landscape and Secondary Dwelling DA and Building Certificate appeals. 2. Mr Colenbrander provided a statement of evidence (ex 8) prepared for the Order appeal, in which he provided his opinion on the condition of the retaining walls in the foreshore area based on visual evidence from his site visit, and commented on the applicants' Statement of Facts and Contentions, including in relation to the rock face traversing along the contour on the north east side of the property, by reference to the approved plans for the earlier development consents. 3. Mr Colenbrander participated in conferencing with Mr Malorey, and the experts prepared a joint report dated 8 October 2014 (ex 11), in which they reviewed the state of the retaining walls on the site. As part of that process the experts referred to the statutory declaration by Mr Michael Rimac, builder, dated 8 October 2014; a statement of evidence of Mr Anthony Pellicano dated 24 May 2014; and an analysis of geotechnical and structural stability undertaken by SMEC Australia, of which Mr Malorey is Technical Principal: Rock Mechanics and Major Projects. In that joint report Mr Colenbrander and Mr Malorey identified five types of walls (T1, T2, T3, T4, T5), and provided (Appendix B) a condition assessment of each of the walls. By reference to the annotated survey dated 8 May 2014 (paragraph [9] above), walls W1 and E1 are Type 1; walls W2 and E2 are Type 2; walls W3, E3, and E4 are Type 3; wall W4 is Type 4; and walls W5 and E5 are Type 5. 4. Mr Colenbrander and Mr Malorey provided a Supplementary Note to the joint report, dated 9 October 2014 (ex R), in which they considered the magnitude of height reduction of the Type T1 and T2 terrace walls (walls E1, E2, W1 and W2 on the annotated survey diagram) that would eliminate structural inadequacies associated with the wall stem capacities for those walls; provided additional information regarding the anchored wall system proposed by SMEC in the joint report; and outlined works required to the boundary wall to 55 Minimbah Road. 5. Mr Colenbrander and Mr Malorey provided a further joint report dated 19 November 2015 (ex 17), to consolidate their position in exhibits 11 and R on the structural inadequacies of the Type 1 and Type 2 walls, and the eastern boundary wall remediation; and to review the engineering impact of the proposed revised landscape plans provided by the applicants (17 October 2014) and the Council scheme dated 14 November 2014. That document includes an outline estimation on behalf of the applicants of the earthworks volumes associated with the applicants' proposal and the Council scheme. 6. The SMEC report Outline Interpretation and Assessment – Terraced Wall Structures dated 7 October 2014 is exhibit U. Both experts discussed the SMEC site investigations in detail in oral evidence (10 October 2014). 7. A further report by Mr Malorey dated 30 January 2015 attaching photomontages of wall remediation work is exhibit Z. 8. The experts agree: 1. none of the retaining walls have been engineer designed; some (eg E5, W4, W5) have been designed by Mr Screnci and constructed by a competent and experienced stonemason, while others (eg E1-E4, W1-W3) have been designed by the owner and constructed by the licensed and experienced builder (exhibit 11, 3.5); 2. there are elements in the retaining walls that do not meet BCA or best industry practice (ex 11, 3.14); 3. there is no appreciable risk of destabilising the site if removal of the existing retaining walls is carried out under the supervision of an appropriately qualified engineer, although Mr Malorey noted that some local support measures may be required on removal of the structures (ex 11, 3.20); and 4. the retaining walls have been built up to and adjoining both side boundaries of the site to heights of between 1.48m to 2.92m from existing ground level (ex 11, 3.21). 1. The experts further agreed: 1. as to the work required for height reduction and elimination of the structural inadequacies of the Type 1 and Type 2 walls (ie, walls W1, W2, E1, E2) (ex R); 2. as to the anchoring structure required to strengthen the existing wall stem structures of the Type 1 and Type 2 walls (ex 11, 3.26; ex R); 3. that at least partial removal, inspection and reconstruction of the eastern boundary wall to 55 Minimbah Road is required and that limited reduction in wall height is not adequate to address the construction quality issues or provide stabilisation (ex 11, 3.7; ex R); 4. that the Landscape DA (ex V) is technically feasible from an engineering perspective. It retains all the existing walls, reduces the exposed height of walls by 1.2m for E2 and W2, by 0.36m for E3 and W3 and by 0.3m for E4 and W4; walls E1 and W1 are retained at their existing height with some strengthening (ex 17); and 5. that the majority of the works required for the Landscape DA can be undertaken by using hand tools although the removal of surplus spoil (likely to be mostly rubble fill material currently forming backfill to the existing walls) from the site would require careful consideration: removal by barge would be the simplest system if permitted, or if not possible then hand removal via the steep narrow external stair system on the eastern side of the property would be necessary (ex 17). 1. The experts addressed the magnitude of height reduction in the Type 1 and Type 2 walls that would eliminate structural inadequacies, summarising the modifications required in the following terms (ex R, pp 1-2): 1. Type 1 walls: * full removal of the brick component of the upper wall * removal of the backfill behind this element * construction of new foundation for future slab extending up to base of new slab on top of reinforced masonry elements and new slab on rock at remote end of slab adjacent dwelling * ensure structural integration of slab footing to reinforced blockwork wall and into bedrock underlying remote end of slab * reinstate structural slab spanning from wall stem to a new foundation adjacent to dwelling * retain void or use polystyrene fill beneath new slab structure down to the top of the reinforced blockwork wall. 1. Type 2 walls: * full removal of the rubble component of the upper wall * removal of the backfill behind this element * construct new nib to a maximum height of 0.1m * ensure integration of nib to top of existing wall * reinstatement landform with a 2.5H:1V vegetated batter between the Type 2 and Type 1 walls. 1. While reaching agreement on the Type 1 and Type 2 walls, the experts differed as to whether Types 3, 4 and 5 satisfy an acceptable industry standard (ex 11, 3.3). Mr Malorey was of the opinion that these walls would satisfy an acceptable industry standard. Mr Colenbrander noted that Mr Malorey had relied on the statutory declaration by Mr Rimac, and in his opinion there remains considerable uncertainty as to the wall designs, and at least one part of W5 is not founded on rock as per the design. 2. The experts differed as to the extent of work required to the eastern boundary wall. Mr Malorey was of the opinion that on removal of sections of the wall shown in the photomontages in Attachment 2 to exhibit 17, an appropriate structural and geotechnical inspection would be required to confirm a suitable foundation material exists on which to construct a new wall footing prior to reconstruction. Exhibit Z provides additional photomontages of required remediation work. Mr Colenbrander was of the opinion that this boundary wall comprises a series of ad hoc, uncoordinated return wall extensions to the main north-facing retaining walls which appear to have been constructed with little thought to design or appearance from the adjoining property; if the walls are to be reduced in height it would be more appropriate to demolish the eastern boundary wall completely and replace it with a new more robust and uniform wall, which would require confirmation of suitable founding conditions and appropriate engineering design (ex 17). 3. Mr Colenbrander and Mr Malorey also addressed the issue of tree planting. They agreed that the development of significant root structures has potential to cause structural damage to the retaining walls, and the vegetation plan needs to prohibit use of invasive root structures or vegetation that may apply uncontrolled loadings to the existing wall elements (ex 11, 3.25). In oral evidence (10 October 2014) Mr Colenbrander explained the impact of trees in terms of the effect of pressure applied by the root bowl of the trees as they grow. In his experience shrubs and small plantings are not a particular problem however trees are. He noted that with low height rubble retaining walls the impact is not so severe because they are flexible and any movement occurring as a result of root bulb pressure would be localised and is repairable. Mr Malorey agreed that intrusive root structures adjacent to and immediately behind walls present issues and develop problems over time. The landscaping and arboricultural evidence 1. Mr Barnett prepared a Statement of Evidence dated 29 May 2014 relating to the original Landscape DA plans (ex Q). He and Mr Powe prepared a joint report (ex 10) addressing the Council's contentions relating to the SREP, the Sydney Harbour DCP, the objectives of the E4 zone under the LEP, and the DCP. Mr Barnett and Mr Powe prepared a Supplementary joint report on the amended Landscape DA plans (ex 16). Mr Barnett and Mr Paroissien prepared a joint report on the issue of the survival of large trees proposed for planting (ex 22). All three experts gave oral evidence. 2. In their consideration of the original landscape DA plans, Mr Barnett and Mr Powe differed as to whether the scale, form and design have sufficient regard to the natural landform and character of the locality as required by the SREP, by reference to cl 2(1)(a) and 2(2) of the SREP. Mr Barnett was of the opinion that the visual effect of the walls can be mitigated through the planting strategy and the landscape planting would contribute to and enhance the foreshore character compared to what was on site before the works began. The central stairs are a major contributing factor to the visual contrast that occurs between the site and others surrounding it, and the proposal to realign the access to the water's edge and break the symmetry of the stairs would reduce the visual impact. Mr Powe considered that the walls, ancillary structures and hard paving do not protect, enhance or maintain the harbour foreshore asset. In terms of the relationship between the development at the water's edge and the view of the natural shoreline, Mr Barnett considered that the shoreline edge has been modified along the entire stretch of Minimbah Road, and the changes to the seawall have been undertaken sensitively; Mr Powe considered that the shoreline in the proposal is dominated by the built and hard elements particularly at the shoreline interface. Mr Barnett considered that the proposed vegetation will complement the adjacent shoreline planting and enhance the character of the bay; Mr Powe considered that all natural features were removed and replaced by constructed elements unsympathetic to the natural foreshore and opportunities for canopy planting are restricted by the inadequacy of soil volume and root growth are available for planting. Mr Barnett was of the view that sufficient tree mass and size will be achieved to adequately screen the walls and that root barriers could be employed to give further confidence about the walls handling pressure from tree roots. The experts differed as to visual impact of the site, Mr Barnett considering it to be low with a small number of properties in the visual catchment, whereas Mr Powe considered that the site is prominent in the enclosed bay increasing the visual impact of the retaining walls, pergolas and hard paving. They agreed that the overall colours proposed match native vegetation and geological features. 3. In terms of the objectives of the E4 zone, Mr Barnett considered that the proposal enhances the ecological and scientific values of the landscape; Mr Powe considered that the proposed works fundamentally change the ecological and aesthetic values of the special locality. In Mr Barnett's view, the proposal aims to mitigate the visual impact of the walls through planting and realignment of the path, creating further planting zones; in Mr Powe's opinion the proposal adversely affects ecological and aesthetic values by replacing natural elements with constructed walls in linear arrangement of terraces with little opportunity for replacement of the range of ecological characteristics of locally native groundcover shrub and canopy due to the narrow restricted terraces and removal of existing rock. Mr Barnett considered that the proposal utilises indigenous and native plantings that will improve habitat and ecological integrity from the pre-development landscape; Mr Powe considered that the proposal does not preserve natural features nor does it enhance natural features and bushland. For Mr Barnett, the influence of the landscape quality will be of the proposed planting once established; in Mr Powe's opinion residential amenity is not retained and enhanced. 4. Mr Barnett and Mr Powe addressed the provisions of the DCP for desired future character of the Northbridge locality. On many elements of the DCP, their disagreement related to whether sufficient tree size and mass would be achieved to adequately screen the walls, with Mr Powe expressing the opinion that there would not be adequate soil volume and width to enable development of root systems for long term tree planting; and the visual impact of the built form, and whether the proposed planting would provide adequate screening. The experts differed as to potential impact of root systems on the structures, with Mr Barnett of the view that decisions could be made to ensure porous pavements and elevated step structures to allow for continuous root growth and spread, while Mr Powe considered that the proposed terraces are in effect contained planters for the tree species selected. In Mr Barnett's opinion the realignment of the access path, and the integration of a lightweight timber stair, addresses the symmetry of the stair running centrally through the site; Mr Powe considered that the proposed development detracts from the natural character of the foreshore area in its construction of high, linear evenly arrayed retaining walls in the area between the building and the foreshore. They differed as to the extent of earthworks, Mr Barnett considering that extensive earthworks have been undertaken to stabilise a very steep site, while Mr Powe considered that the proposal is entirely comprised of levelling, filling and high retaining walls, contrary to the controls. Mr Powe was of the view that the proposal needs to be redesigned to reduce the impact of the hard elements proposed in the form of paving of upper terraces and the levelled area on the foreshore; Mr Barnett noted that proposed pathways could be porous, and the step structures proposed are elevated and timber. 5. Mr Barnett and Mr Powe agreed that the proposal does not comply with section C10.3 of the DCP in relation to the retaining walls, as the proposal intends to retain the majority of the existing wall structures which have been constructed to a height greater than 1m. Mr Barnett considered that while there is some scope to reduce the height of the walls and use sloping planter beds the improvement would be minimal and the current terracing provides a stable approach. Mr Powe considered that the stairs should be redesigned to follow the natural topography of the land enabling them to be integrated with the landscape as a functional method of reaching the waterfront. Mr Powe accepted that the foreshore component of the site is constrained in relation to the steep topography and geographically in relation to its proximity to the foreshore and the proposal completely alters this portion of the site with no consideration of those constraints. Mr Barnett stated that the proposal has not minimised the disturbance of the land due to previous works installing drainage to the edge of the site that resulted in a large amount of erosion and land slippage. 6. In the joint report on the amended Landscape DA plans (ex 16), Mr Powe commented on the amended proposed tree planting and removal of the proposed canopy species Angophora costata and replacement with smaller growing trees. In his opinion while this may address the issue of the limitation of the proposed planting areas, the end result is a landscape treatment dictated to and constrained by the limitations of the structural elements, which in this location and in consideration of the applicable development controls, is an inadequate response. Mr Powe considered there was merit with some minor amendments in the proposed treatment on the western side of the site with regard to the access stairs and reduced wall heights. Mr Barnett supported the proposed reduction in the visible height of the retaining walls as having the benefit of exposing a sloped soil profile covered in vegetation, and maintained his opinion that the wall elements provide planting zones that will not limit the selected tree planting. 7. There was further evidence on proposed tree planting, in particular whether it would be feasible to require (as the Council seeks in its proposed modified Order) the planting of one or more Angophora costata. In the joint report arising from his conferencing with Mr Powe on 26 September 2014 (ex 10) Mr Barnett expressed the opinion that "Angophoras especially are adept at establishing in small amounts of soil on the steep sandstone slopes that surround Sydney and Middle Harbour" (p8). In the subsequent joint report from the conferencing with Mr Powe on 7 November 2014 (ex 16) Mr Barnett considered that the inclusion of Angophoras was "unrealistic" with three specimens proposed within the foreshore terrace zone, which would, in his opinion, require extensive excavation that would put the tree root zone below the high tide water level. 8. Mr Barnett participated in further conferencing with Mr Paroissien on 6 February 2015, resulting in a joint report (ex 22) in which Mr Barnett clarified that the latter statement related to planted specimens. Mr Barnett noted that the condition behind the constructed seawall is assumed to be fill behind an unsealed sandstone block seawall, and it is assumed that this fill would be replaced with a more appropriate growing medium/soil mix before planting. Mr Paroissien acknowledged those comments, and commented that he assumed that the new material would be suitable for root growth, that the landscaped area would be constructed in a manner that minimised the potential for water logging, that once established, root growth from plants including trees in that area would be opportunistic so that the roots would grow where soil conditions are suitable, and that Angophora costata are well adapted to the locality and prevailing soil conditions as the landscape plantings grow and their root systems spread. Mr Barnett and Mr Paroissien agreed that Angophora costata do grow down to the edge of the salt water in Sydney estuaries generally and at Northbridge in the immediate vicinity of the site, and that if there were lingering concerns about potential issues with salt tolerance those concerns could be addressed by using stock propagated from seed sourced locally from trees growing adjacent to the salt water in the vicinity of the site. The planning evidence 1. Mr Dickson provided an individual Statement of Evidence (ex P), and participated in conferencing with Ms de Carvalho. That conferencing produced three joint reports: a joint report from conferencing on 3 October 2014 (ex 9), and two further joint reports from conferencing on 7 November 2014 (ex 14) and 19 November 2014 (ex 15). 2. Exhibit 9 was prepared before the hearing, and before the amendment to the Landscape DA which incorporated some of the matters discussed between the experts. In exhibit 14 Mr Dickson expressed the opinion that the modifications adequately address concerns around visual impacts because the bulk of the structures on site have been reduced, the extent of soft landscaping has been increased, and the proposed planting regime has been amended to achieve adequate screening and a native character appropriate to the foreshore location. He and Ms de Carvalho disagreed as to whether the proposed lowered retaining walls were appropriate; whether the central stairs as amended were prominent; whether the proposed plantings would screen bulk and scale sufficiently and achieve compatibility with the character of the foreshore; the visibility of the curved stairs below the spa pool under-croft; the impact of the bulk and scale of the sea wall and terraces adjacent to the waterline; and the appropriateness of the proposed timber pergola at the paved foreshore area. 3. In exhibit 15 Mr Dickson and Ms de Carvalho considered the Council's proposed modified Order. They agreed that it was reasonable to accommodate large tree species near the waterfront by increasing the area of the soil and width of soil between retaining walls. Mr Dickson considered that the Council scheme would require significant works but would achieve little difference in what the garden would look like, and would require significant demolition and construction and significant volumes of soil to be removed from the site and additional sandstone brought to the site; the proposed curves of the retaining walls did not appear to follow the natural contours of the land or relate to the position of the walls depicted in the 2004 plan which were predominantly perpendicular to the side boundary; the proposed planter to the seawall on the eastern side of the site increases the height of the sea wall by 570mm, contrary to earlier concerns about seawall height; substantial reduction of the paved area at the western foreshore to a width of approximately 1.5m would create an unusable space significantly less than available on adjoining properties; removal of wall E1 would not reduce the number of retaining walls on the site; exposing the rock shelf is unnecessary as it was likely damaged during construction and would likely not be visible due to planting; and removal of the terrace would impact on private open space for the proposed secondary dwelling. Ms de Carvalho was of the opinion that the Council scheme would enable provision of appropriate significant large tree planting along the foreshore, and would improve the presentation of the site when viewed from the water; while she considered that the acceptance of the seawall and additional height of approximately 570mm to the seawall on the eastern side was not ideal it was a compromise to facilitate increased landscaped area, reduced hard paving and adequate planting areas to provide for canopy tree planting of two Angophora costata. In her opinion removal of the eastern terrace to reinstate the rock feature is appropriate and provides a natural retaining wall and enables increased soft landscaping adjacent to the spa under-croft. 4. It is necessary at this point to address a challenge made by the applicants to the evidence of Ms de Carvalho. The applicants submitted that in the joint reports and oral evidence Ms de Carvalho had sought to justify the Council's requirements for the Order as reasonable in circumstances where she had acknowledged that performance of those requirements was impossible to achieve and that failing to do so would expose the applicants to criminal liability. In those submissions the applicants referred to Ms de Carvalho's statements in exhibit 9 in relation to the retaining wall and stairs and walls in the foreshore area that in the context of the Order the required demolition work to reinstate "must defer to what has approval by Council", and that Council requirements "are not unreasonable noting the unauthorised earthworks and construction was unreasonable". At the same part of that joint report, Mr Dickson had commented that the demolition of retaining walls "is unreasonable due to lack of detail of works sought to be reinstated". In oral evidence on 10 October 2014 Ms de Carvalho accepted that it was impossible to reinstate the site to the condition that existed immediately before the work. In later oral evidence on 20 November 2014 Ms de Carvalho stated it was reasonable to commence proceedings from an order, from a point at which there is an approval in place, and that was a reasonable basis upon which to issue an order. In final submissions in reply, the applicants referred to asserted discrepancies identified in Ms de Carvalho's evidence as to levels. 5. In the applicants' submission, this would be a sufficient basis on which the evidence of the applicants' witnesses should be preferred to that of Ms de Carvalho, or, as put in submissions in reply, a basis on which to be very concerned about accepting her evidence. I do not agree. It was clear from much of Ms de Carvalho's evidence that she had a concern with the unauthorised works that had been undertaken on the waterfront, and that she had a significant role in the development of the Council's proposed modified Order. In oral evidence on 20 November 2014 Ms de Carvalho explained her opinion that the requirements specified in the s 121B Order issued on 15 November 2013 were a starting point, as the Order had to refer back to what had been approved. That approach accords with the legislative basis for the issue of an order under Orders 2, 12 or 15 of s 121B of the Act. In this instance the applicants have exercised their right to appeal under s 121ZK of the Act, which provides broad powers for the Court under s 121ZK(4) to vary or modify the terms of the Order. The Council accepts in submissions that there are internal contradictions in the terms of the Order, and has, during the course of these proceedings, proposed variations to the terms of the Order. The issue in the Order appeal is whether, and to what extent, the requirements of the Order should be modified or varied or the Order confirmed. Whether or not it is impossible, as Ms de Carvalho accepted, to restore the site to its form where there is no development on the land at all, is not to the point. 6. While not the subject of final submission, in cross examination Ms de Carvalho was challenged as to her change of position on whether the height of the wall at W5 on the western side of the foreshore should be increased. In cross examination on 20 November 2015 Ms de Carvalho commented that her initial response to the increase in height of 570mm as proposed in the Council's proposed modified Order was that this was unacceptable, however on balance, she had looked at this in its entirety of the outcome, not in isolation, and that while it was a compromise it was a worthwhile compromise. That is consistent with her statement in the joint report of 19 November 2014 (ex 15, p 7) that acceptance of the additional height of 570mm was not ideal "but a compromise to facilitate increased landscape area, reduced hard paving and adequate planting areas to provide for additional canopy tree planting of two Angophora costata". I agree with the Council that it is appropriate to describe this as a considered, and appropriately reasoned, change in professional opinion. 7. Having regard to the totality of her evidence, both in the joint reports and in oral evidence, I am satisfied that Ms de Carvalho demonstrated the capacity to bring the requisite degree of impartiality to her opinions and reasons in the context of the complex interrelationship between the various appeals. In my view, the applicants have not demonstrated a basis on which the evidence of Ms de Carvalho should be rejected in favour of that of their witnesses; whether her evidence should be accepted on any particular issue where there was a divergence of expert opinion is a separate question. Findings 1. There are four aspects of the Landscape DA which were the subject of expert evidence and submission: the retaining walls generally; the height of the sea wall; planting of Angophora costata; and the timber pergola. As noted above, undertaking the assessment required by s 79C(1) of the Act is not an exercise in comparison between the proposed development and the outcome sought by the Council in its proposed modified Order, or a comparison between the proposed development and the existing structures and landscaping on the site. The proposed development must be considered as reflected in the detailed plans and drawings, assisted by the photomontages (the accuracy of which was not questioned), and observations of the site and its locality on the view. I accept the agreed evidence of the planners (paragraph [61]) as to the relevant documents that establish the form and character of the landscaping prior to the works being undertaken (ex 1, tab 17; ex 2, tab 20; ex 9). 2. Accepting the agreed position as to the location of the FBL (see paragraph [47] above), the land below that line, as foreshore land, is subject to the provisions of cl 6.4 of the 2012 LEP and section C10 of the DCP. The relevant controls applicable to development on land in the foreshore area under cl 6.4, and in section C10.3 of the DCP are outlined above. Clause 6.4 requires that the consent authority be satisfied that proposed development will "contribute to achieving the objectives for the zone". The objectives of the E4 zone include the preservation and enhancement of the natural features within the immediate locality and to ensure that residential development does not have an adverse effect on, among others, the aesthetic values of the area. The intent of the DCP provisions is preserving and enhancing natural features and vegetation of the foreshore area and ensuring that development does not detract from the natural character. The site is within the Foreshore and Waterways Area for the purposes of the SREP. The aims of the SREP include protection and enhancement of the foreshores of Sydney Harbour, while the planning principles of the Sydney Harbour DCP include that development along the foreshore should maintain, protect and enhance the unique visual and environmental qualities of Sydney Harbour and its islands and foreshores. 3. Having regard to those provisions, and the provision of the relevant matters for consideration in cl 6.4(3) of the 2012 LEP, and in cll 25 and 26 of the SREP, I agree with the Council that between these three levels of planning instruments there is a consistent recognition that there is a need to reinstate, rehabilitate, and restore foreshore areas. 4. Permitted structures within the foreshore area under cl 6.4 of the 2012 LEP include stairs or other structures to provide pedestrian access to the waterway (cl 6.4(2)(b)), and retaining walls (cl 6.4(2)(c)). The applicants submit that that part of the terrace above wall E1 that is below the FBL is also permissible, as the edge of the terrace falls within the description in part under cl 6.4(2)(b) as "stairs", and in part under cl 6.4(2)(c) as included in "…barbecues,… pergolas, … retaining walls, …". The Council disagrees, and submits that if the terrace is considered alone rather than associated with the Secondary Dwelling DA, it is not permissible under cl 6.4(2). In reply, the applicants submit that the terrace is an amalgam of the purposes referred to in cl 6.4(2)(c); it is part of the private open space for the secondary dwelling and therefore approvable under cl 6.4. The applicants raise an alternative basis for permissibility being the absence of such a restriction under the 1995 LEP and the former use of the yard all the way down to the waterline before the 2012 LEP commenced giving rise to rights protected under s 108 of the Act. 5. Leaving to one side the question of permissibility, the approval of that part of the Landscape DA forward of the FBL, including the terrace structure, would depend on the assessment required by cl 6.4 of the LEP and under the DCP. As noted above, cl 6.4(3)(a) provides that consent cannot be granted unless the consent authority is satisfied that the development will contribute to achieving the objectives for the zone. Those objectives include provision for "low-impact" residential development, and ensuring that the development does not have an adverse effect on, relevantly, aesthetic values. The DCP provides detailed guidance, consistent with s 74BA(1) of the Act, as to how that can be achieved, through its provision in C10.3 that the visual impact of minor structures should be minimised with screen planting; extensive earthworks such as levelling, filling and high retaining walls are not to be carried out; paved areas should be minimised; and high retaining and screen walls should be avoided, and should be broken by steps or further terracing to relieve their height; and the width of stairs and pathways should be kept to the minimum required for safe pedestrian access and materials should be compatible visually, using stone or timber. 6. In his contribution to exhibit 14 Mr Dickson provided calculations for the proposed reduction in height of the retaining walls and consequent finished wall heights as now proposed in the Landscape DA. Those calculations were not challenged, and I accept them. On that basis, the proposed heights of each of the retaining walls would be: * E1: no reduction in height, height of wall from finished ground level: 2.92m; * E2: reduction in RL height 1.20m, 1.31m reduction in finished wall height, height of wall from finished ground level: 1.18m; * E3: reduction in RL height 0.36m, 0.61m reduction in finished wall height, height of wall from finished ground level: 0.95m; * E4: reduction in RL height 0.39m, 0.49m reduction in finished wall height, height of wall from finished ground level: 1.05m; * E5: reduction in RL height nil, 0.81m reduction in finished wall height, height of wall from finished ground level: 1.30m; * W1: no reduction in height, height of wall from finished ground level: 2.92m; * W2: reduction in RL height 1.23m, 1.34m reduction in finished wall height, height of wall from finished ground level: 1.18m; * W3: reduction in RL height 0.36m, 0.66m reduction in finished wall height, height of wall from finished ground level: 0.95m; * W4: reduction in RL height 0.24m, 0.43m reduction in finished wall height, height of wall from finished ground level: 1.05m; * W5: reduction in RL height nil, 0.77m reduction in finished wall height, height of wall from finished ground level: 1.35m. 1. As explained by Mr Dickson, the visible wall height is reduced by reducing the wall heights and by increasing the visible landscape by battening of soil. The additional retaining walls north of E5 and W5 are to a height of 0.57m, and reduce the extent of hard paving near the seawall by approximately 15%. 2. All but one of the retaining walls proposed within the foreshore area would exceed the 1m considered appropriate under section C10.3 of the DCP. The photomontage for the Landscape DA (drawing DA-000), which Mr Dickson stated shows a 3-5 year landscape maturity (ex 14), shows screen planting for a substantial part of the site, however the central stairs leading up to the drum are prominent. Based on the Plant Schedule and Landscape Plan in exhibit AA, the proposed planting of larger trees that might assist in screening the central stairs and the other elements of the retaining walls is intended to be close to the side boundaries, rather than more centrally located. While the impact of the central stairs is to be ameliorated somewhat by the diversion in the central part of the landscaped area, substantial parts are retained. In assessing the proposal, I prefer the evidence of Mr Powe to that of Mr Barnett, which to a significant extent was based on a comparison between the existing structures and those proposed. While the proposal might be seen as an improvement on the existing structures, I agree with Mr Powe that the overall visual impact of the retaining walls, pergolas and hard paving is significant, and I accept his evidence that the proposed landscaping is dictated to and constrained by the limitations of the structural elements, rather than considered in the context of the objectives of the planning controls. When considered in that context, I am not satisfied that the proposal contributes to achieving the first two objectives of the E4 zone as required by cl 6.4(3)(a) of the 2012 LEP. 3. In oral evidence Mr Barnett and Mr Powe agreed that there is scope for deeper soil and accordingly a large tree planting if E4 is removed. Mr Barnett accepted (T 10/10/14, p 51) that the lower the walls the more screening there would be, and that wider planting beds would allow for some larger tree growth such as the Angophora costata; Mr Barnett indicated that the bed between W3 and W4 could be widened, and that E4 could be removed or brought forward to incorporate that into the landscaped area proposed for the sea wall level. Mr Powe agreed that wall E4 could be moved forward to the foreshore line (T 10/10/14, p 54). Mr Dickson and Ms de Carvalho had also discussed further increasing deep soil at the north eastern portion of the site to accommodate a larger tree species such as an Angophora, and Mr Dickson supported that in principle (exhibit 14). 4. A central element of the applicants' arguments in support of the Landscape DA proposal is the work required to reduce the height or to relocate and reconfigure the retaining walls as contemplated by the Council in its proposed modified Order. However, it is clear from the evidence of the geotechnical engineers that extensive work is already required to bring the retaining walls to an acceptable standard. The agreed work required for walls E1, E2, W1 and W2, which are Type 1 and 2 walls, is summarised at paragraph [87] above, and I accept that evidence. Mr Malorey and Mr Colenbrander disagreed as to the Type 3, 4 and 5 walls (E3, E4, W3, W4 and W5). Mr Malorey relied on the Rimac statutory declaration and SMEC testing for his opinion that the Type 3, 4 and 5 walls meet an acceptable standard. While in oral evidence (T 10/10/14, p 73) Mr Malorey commented that the SMEC drilling had not identified anything materially different to that stated in the Rimac statutory declaration, Mr Colenbrander doubted whether the SMEC testing in fact confirmed the technical information in the Rimac statutory declaration, for example in his comment (T 10/10/14, p 74) that he would not have expected to see fill in the rubble and mortar wall construction stated to have been used for the Type 3 wall for E3 and E4. In response to Mr Colenbrander's comment (T 10/10/14, p 70) that the SMEC drilling results were inconsistent with the Rimac statutory declaration, Mr Malorey outlined (T 10/10/14, p 71) some of the limitations of the testing process, noting the restricted site and the relatively short time frame to undertake the works; Mr Malorey acknowledged that there was a limit in the drilling method. Mr Malorey later stated that on average there were 2 drill holes made for each wall, with a couple of walls having three and on one wall a single hole (T 10/10/14, p 73). 5. Having regard to the limitations of the testing process, the diversity of structures found (as acknowledged in Mr Malorey's evidence, T 10/10/14, p 72); and the agreed absence of engineer design for any of the retaining walls, I am of the view that there is sufficient uncertainty as to the present structure and construction of walls E3, E4, W3, W4 and W5 that it would not be unreasonable to include in the work required to those walls a reduction in height to bring those walls into compliance with the DCP. The proposed height when considered together with the proposed landscaping scheme do not address the provisions of the DCP consistent with the intent of that part of the DCP as expressed at C10.1, and I am not persuaded that a departure from those provisions has been justified. 6. The various estimates of the amount of fill and other material that would need to be removed were ultimately inconclusive, and on the evidence before the Court would not provide a basis for not requiring compliance with the DCP provisions. Mr Malorey estimated (ex 17, p 4-5) that the in place volume of soil for removal under the Landscape DA proposal equates to in the order of 71-85 tonnes, while the Council scheme would equate to in the order of 187-215 tonnes. Both engineers agreed that some material presently on the site could be reused if the dry stack wall construction sought by the Council were adopted (T 10/10/14, p 45). They agreed that such a construction would be easier to construct than the engineered form proposed in the Landscape DA (T 10/10/14, p 38). I accept that evidence. 7. The Landscape DA includes walls E1 and W1 and that part of the terraces immediately adjacent to the top of those walls, and the landing at RL9.74 at the top of the central stairway from which the two curved stairs run on each side of the spa undercroft (ex AA, drawing DA-101 rev B). The proposed development retains the as built section of the central stairway leading to the landing and the two curved stairs, and retains walls W1 and E1 at their present height of 2.92m. The photomontage (DA-000) shows some proposed landscape screening of the curved stairs, but no screening of the landing and central drum. 8. The plans approved in Development Consent DA 2004/715, as discussed by Mr Dickson in his evidence on 11 February 2015, did not include work for access between the dwelling as then approved and the waterfront, leaving very high sheer walls (ex 2, tab 20). It would not be consistent, however, with the objectives in cl 2(1)(a) or (g), or cl 21(e) or (f), of the SREP, or with the landscaping provisions in section D1.8.1 of the DCP, to approve development that continues the dominance of this built element, particularly in the absence of landscaping such as the planting of large screening trees that might assist in minimising that dominance when viewed from the foreshore. While there was disagreement as to the viability of planting Angophora close to the foreshore, Mr Barnett agreed (T 11/2/15, p 15) that there would be no issue with such plantings higher up the site. 9. To the extent that any doubt remained as to the viability of the planting of Angophora close to the foreshore, I prefer the evidence of Mr Paroissien to that of Mr Barnett, Mr Barnett having acknowledged that he is not an arboricultural specialist and had relied on the advice of others (T 11/2/15, p 13). Mr Paroissien has tertiary qualifications in horticulture including arboriculture, and extensive experience in tree assessment and landscape management. Mr Paroissien was of the opinion that if the areas are constructed properly and are free draining, the trees are planted into a constructed landscape area with suitable growing media, with excavation to a depth of 500-600mm and preferably 1m, the trees would survive, and once established the roots would grow where there were pore spaces in the soil, adequate moisture and nutrients, and would exploit the adjoining areas (T 11/2/15, pp16-19). Mr Paroissien was of the opinion that there would be no limitation to planting Angophora, apart from watering during establishment, and permanent irrigation would not be required (T 11/2/15, p 21, 22). I accept that evidence. 10. While the paved area at the foreshore is proposed to be reduced on the eastern side of the site, the Landscape DA proposes retention of the extensive paved area on the western side of the site, with the addition of a timber pergola. That is not consistent, in my view, with the performance criteria C10.2 (A) in the DCP that the foreshore area is "to be predominantly occupied by landscaping", and in C10.3 that paved surfaces be minimised. 11. A "pergola" is included in the list of structures permissible in the foreshore area (cl 6.4(2)(c)). As shown on the plans, it is doubtful whether what is proposed could serve the intended use described in oral evidence by Mr Dickson as being to provide an attractive area for the occupants to use to sit under in the waterfront location, or as described by Mr Barnett (ex 16) as offering amenity and sun protection. Mr Dickson and Mr Barnett were of the opinion that the pergola would not have a strong visual impact from the water. I do not agree. In the context of the proposed retention of the area of hard paving and the retaining wall W5 at 1.35m, and based on the photomontage (paragraph [73] above), I agree with Mr Powe that this structure does not have a relationship to the natural assets of the foreshore, and with Ms de Carvalho that it adds unnecessary bulk. It is not consistent with the first dot point of the E4 zone objectives, or the intent of the DCP as expressed in C10.1, and should not be approved. In that regard, a further increase in the height of Wall W5 as proposed by the Council in its modified Order would exacerbate that impact, and would not in my view be consistent with the performance criteria in C10.2(A) of the DCP. 12. The engineering experts agreed that the eastern boundary wall requires partial removal, inspection and reconstruction using an appropriate engineer solution and that limited reduction in wall height alone would not be adequate to address construction quality issues or provide stabilisation to distressed sections (ex R, p 2). They differed as to how extensive the work needs to be. Whether the wall should be rebuilt in its entirety is a matter that can be considered in the context of the Landscape Building Certificate appeal, depending on the outcome of any amended Landscape DA. 13. The Landscape DA leaves unresolved the work proposed at the north eastern corner of the site, at the foreshore. While Mr Dickson (T 11/2/15, pp 49, 70) considered that this could be addressed in construction drawings, given the sensitivity of the foreshore area as identified in all the planning controls, in my view this is a matter that needs to be clearly identified and addressed as part of any consent. Conclusion 1. For the reasons above, I am not satisfied that the Landscape DA proposes development that contributes to achieving the objectives of the E4 zone, and, applying cl 6.4(3)(a) of the 2012 LEP, cannot be approved. Secondary dwelling 1. The extent of the works proposed in the Secondary Dwelling DA is shown in the following drawing (ex M, drawing DA-101): 1. In oral evidence Mr Dickson confirmed that the Secondary Dwelling DA includes the dwelling and the terraces on either side (T 11/2/15, p 53). I note that based on drawing DA-101, the Secondary Dwelling DA also includes the two as built walls E1 and W1, the final few central stairs and the landing at RL 9.74, and the two curved stairs leading up from that landing around the drum; and it proposes the addition of a timber pergola on each of the eastern and western terraces. There is an overlap with some of the works included in the Landscape DA (identified in ex AA, drawing DA-101 rev B). 2. Details of the secondary dwelling and terraces are shown on drawing DA-201: 1. The Council contends in its Statement of Facts and Contentions (ex 7) that consent to the Secondary Dwelling DA should be refused on the basis of inconsistency with the provisions of the SREP and the Sydney Harbour REP, and having regard to the provisions of the 2012 LEP including non-compliance with the FSR and height provisions in cll 4.4, 4.3A(6) and 4.3A(7) of the 2012 LEP, and the provisions of the DCP. 2. Mr Dickson did not dispute Ms de Carvalho's opinion that the height of the drum form, and therefore the secondary dwelling as proposed, is in the order of 7.1m (T 11/2/15, p 55). If the proposed secondary dwelling "is separate from the principal dwelling", it exceeds the 5.7m height limit in cl 4.3A(6) of the 2012 LEP, and in the absence of a variation under cl 4.6 of the 2012 LEP consent could not be granted. 3. The Council submits that the secondary dwelling is separate from the principal dwelling, as it is separated by a swimming pool and spa which are structures the subject of their own consent. In the Council's submission the definition of "secondary dwelling" does not refer to the relationship of the secondary dwelling with a dwelling house which is the building within which the dwelling is located, but to a dwelling, which is a suite of rooms within a building. In the absence of a request to vary the standard in cl 4.3A(6) upheld under cl 4.6, the secondary dwelling cannot be approved. 4. The applicants submit that the proposed secondary dwelling is attached to the principal dwelling. The most natural manner in which a dwelling may be "attached to" the principal dwelling yet not be "located within" nor "separate from" the principal dwelling (being the alternatives in the definition of the term "secondary dwelling"), is where there is substantial physical attachment such as by the structure of the relevant building itself. In the present case, the rear wall of the secondary dwelling is the same structural wall which forms the rear wall, at higher levels, of the primary dwelling. It is not to the point that a terrace or pool is also "attached to" both dwellings, or that there might have been a separate development application in respect of the pool or spa. If a secondary dwelling is within or is attached to the principal dwelling, the relevant height control is the height control for the relevant location, and only if a secondary dwelling is separate from the principal dwelling is there a rationale for a separate height control. 5. It was common ground that part of the eastern terrace, boundary wall and proposed pergola exceed the 3.5m height limit for land forward of the FBL in cl 4.3A(7). The applicants have provided a written request for variation of that development standard (ex CC). 6. The FSR for the existing dwelling together with the secondary dwelling, which has a gross floor area of 36.7sqm, would be 0.61:1. The applicants have provided a written request for variation of the FSR development standard in cl 4.4 (ex L, tab 5). The Council submits that the proposed development must comply with both cl 5.4(9) and cl 4.4. 7. The Council submits that the amenity of the secondary dwelling is poor, it has poor access and no vehicle access, and the private open space is compromised. The space may be suitable as a habitable space in conjunction with the principal dwelling such as a studio, which would not require private open space, however it is not suitable for approval as a secondary dwelling. 8. The applicants submit that the privacy for the proposed secondary dwelling should be assessed in the context that while it could be separately let, it is more likely that there would be a close relationship. Any privacy issues created by the ability to look into the dwelling can be easily dealt with to the required degree by the occupant. The planning evidence 1. Mr Dickson and Ms de Carvalho considered the secondary dwelling in their first joint report (ex 9), and gave further consideration to the terrace wall E1 in their joint report of 19 November 2014 (ex 15). They disagreed as to the terraces. Ms de Carvalho was of the opinion that they are excessive in height, mass and bulk; increase site cover at the expense of landscaped area; cover the significant rock outcrop feature under the eastern terrace; and have a small width of connection to the secondary dwelling and are separate by the stairs and path of travel leading to the waterfront. Mr Dickson considered that they provide an appropriate area for outdoor use and suitably extend the interior living spaces; and the pergolas as proposed above both terraces provide suitable scale to these areas and permit shading. In relation to the retention of the spa undercroft space and alterations for habitable use, Ms de Carvalho considered there are unacceptable privacy relationships between the primary and secondary dwelling; the additional floor space adds to the GFA and non-compliance with the FSR control; and the structure within which it is to be located exceeds the height control. Mr Dickson was of the opinion that the secondary dwelling is permissible, and it provides housing choice. 2. In oral evidence Mr Dickson stated that the proposed secondary dwelling is below the existing dwelling, within the bulk of the overall building as constructed, and in the void areas within a drum space. He agreed that the terraces add bulk, however in his opinion they are minor structures. Mr Dickson accepted that the top of the terrace wall is approximately 4.5m above the adjoining land at 55 Minimbah Road. He accepted that when considered against the drawings for development consent DA 2004/715, the construction of the terraces and stairs reduces the landscaped area of the site, and that the addition of the stairs increases the height of the drum form by excavating underneath it (T 11/2/15, p 55). In his opinion the vertical surface, while visible, is not a dramatic change as there was always a large area of drum shown. The secondary dwelling seeks to cure part of the problem of access to the waterfront with the very large concrete walls facing the waterfront that were approved in the 2004 DA. In his opinion the occasional movement of people from the primary dwelling to the waterfront would not create an undue issue that could not be dealt with by curtains and the occupant of the space could make arrangements as to a suitable level of privacy (T 11/2/15, p 68). The north eastern outdoor area is preferable to having only the terrace on the south western side which would be in the vicinity of the bathroom accessible through the bathroom. The access from the street on the eastern side of the building is a clear direct line of movement, wide enough to bring furniture, and gives privacy in not having to access the primary dwelling. 3. Ms de Carvalho did not consider that privacy was possible in the context where the terraces are separated by the access means to the waterfront which is also the access from the primary dwelling. She was also concerned about the number of stairs required for access from Minimbah Road on the eastern side of the building where the alternative was to enter the primary dwelling and then move out of that dwelling down the stairs beside the pool concourse to get to the secondary dwelling (T 11/2/15, p 59). The engineering evidence 1. As discussed above, the geotechnical engineers were in agreement that Walls W1 and E1 are Type 1 walls, and require strengthening or height reduction (ex R, attachment 1); and that the eastern boundary wall requires at least some work, or, in the opinion of Mr Colenbrander, demolition and replacement (ex Z, 14). Findings 1. It was common ground that the part of the eastern terrace forward of the FBL exceeds the 3.5m height limit in cl 4.3A(7). It is not necessary in my view to determine whether the Council is correct in its submission that this structure is not permissible under cl 6.4(2) of the 2012 LEP, or, as the applicants submit, is permissible as part of the Secondary Dwelling DA or pursuant to existing use rights. Even if it is permissible, in order for there to be power to grant consent to that part of the Secondary Dwelling DA that retains that part of the existing structure and the proposed addition of a pergola, the development standard in cl 4.3A(7) must be varied under cl 4.6 of the 2012 LEP. For the reasons which follow, I am not satisfied that the requirements of cl 4.6 are met. 2. Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. 1. The written request (ex CC) states that, based on the site plan from DA 2004/715 which provides periodic spot levels prior to the alterations and additions to the existing dwelling, and which shows a change in ground level from approximately RL 8.8 at the base of the cliff/rock face to levels of around RL 12.4 at the upper part of the cliff/rock face: * only a small portion of the terrace is forward of the FBL; * the terrace retaining wall E1 does not form part of the area of non-compliance; * the terrace slab at RL 12.35 and RL 12.45 does not exceed the 3.5m height limit; * the open ironwork balustrade along the northern edge of the terrace exceeds the height limit, over a length of approximately 3.6m; * the height non-compliance is approximately 890mm towards the west and increases to approximately 980mm at the north east corner of the terrace; * the solid eastern boundary wall exceeds the height limit for a length of approximately 900mm (forward of the location of the rocky outcrop), being a height of approximately 4.48m; * the portion of the proposed timber pergola north of the rocky outcrop exceeds the height limit by approximately 2.8m for a length of approximately 3.6m; and * with the proposed finished ground level at the base of Wall E1 being at RL 9.53 and the top of the balustrade at RL 13.35, the total height of the wall including balustrade would be 3.82m, 320mm in excess of the 3.5m height limit, and the pergola would exceed the height limit by 2.175m. 1. The written request assesses the departures from the standard against the objectives in cl 4.3A (at section 2.1), and the zone objectives (section 2.2), and concludes: From the above, it follows that the proposed development satisfies the objectives of Council's Height of Buildings standard and the objectives of the E4 zone. The proposed structures which encroach into the 3.5m height limit forward of the Foreshore Building line are ancillary in nature, visually unobtrusive, and the extent of non-compliance is minor. The consent authority should be satisfied that the request is justified. 1. The written request refers to the matters specified in cl 4.6(3)(a) and (b) in the Introduction, but otherwise does not address those matters. The Council submits (written submissions, [41]) that the written request is defective and the Court could not be satisfied that it has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicants submit (written submissions, [24]-[25]) that it is sufficient if the statement can properly be described as seeking to justify the matters referred to in sub-cl (3)(a) and (b), that the request lists those matters by reference to both the objectives of the height of buildings control and the broader zone objectives as requested by sub-cl (1), and that it cannot be said that seeking to demonstrate consistency with such a broad suite of planning objectives does not justify that there are sufficient environmental planning grounds for the contravention for the purposes of sub-cl (2). In oral submissions the applicants further submit that the consideration required by cl 4.6(4) as to whether there has been adequate demonstration of the cl 4.6(3) matters is not limited to the terms of the written request, and regard can be had to any of the evidence that goes to the matters in cl 4.6(4). 2. It is not necessary to decide whether or not the failure of the written request in these proceedings expressly to address the matters in cl 4.6(3)(a) and (b) would preclude my reaching the satisfaction required by cl 4.6(4)(a)(i), as I am not persuaded in any event that cl 4.6(4)(a)(ii) is met. 3. The objectives of the E4 zone are set out at paragraph [22] above. In addressing the first two dot points, the request states that the terrace balustrade, side boundary wall and pergola "are ancillary structures and minor in their overall visual impact in the context of the built form on the site", that the timber form of the pergola "helps to screen the concrete rendered walls of the existing dwelling behind and has a positive effect in terms of filtering the landscape at the lower levels of the site with the dwelling at the upper portion of the site", and that "the exposed nature of the structures in the current condition shall be diminished as the proposed landscape matures". 4. However, the proposed landscaping, as identified in the plant schedule in exhibit AA, provides for only one tree in the area immediately below the eastern terrace with a mature height of 10m (Glochidion ferdinandi); the maximum height of any of the other proposed plantings is 1.5m. Having regard to the height difference proposed between Wall E1 and the retaining walls below it, I am not persuaded that the landscaping will operate to screen the structures. In the context of the proposed retention of Wall E1 at a height of 2.92m I am not persuaded that the presence of the additional structure and the additional bulk are consistent with the objective of providing "low-impact" residential development, or the objective of ensuring that the development does not have an adverse effect on the aesthetic values of the area. 5. Further, I am not satisfied that the proposed development is consistent with objective (c) of the height development standard, which is "to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores". The boundary wall is 4.5m high and visible from the adjoining property at 55 Minimbah Road, and based on the view, will dominate. I agree with the Council that the views of the present owner of No 55, as expressed in exhibit Y, should be given limited weight in circumstances where the visual impact would continue under any consent granted regardless of any future change in property ownership. Based on the view, the terrace and balustrade are already highly visible from the waterway, and the addition of the pergola would not provide the high visual quality expected in that objective. 6. I am not satisfied that the requirements of cl 4.6(4) are met, and accordingly consent cannot be granted. Further, I note that even if that part of the application that does not comply with the development standard were amended, that would have consequences for the provision of private open space for the proposed secondary dwelling. On the evidence of Mr Dickson, there would be an issue as to the appropriateness of providing private open space for the secondary dwelling limited to the western terrace accessed from the bathroom. 7. In those circumstances, it is not necessary to determine whether the secondary dwelling is separate from, or attached to, the principal dwelling for the purposes of the application of the development standard in cl 4.3A(6), or whether the cl 4.6 variation for the exceedance of the FSR standard represented by the Secondary Dwelling DA should be upheld. Conclusion 1. For the reasons above, consent cannot be granted to either the Landscape DA or the Secondary Dwelling DA. As discussed during the hearing, it is appropriate that the parties have the opportunity to consider, having regard to the findings in these reasons, their respective positions, including whether either development application can or should be amended. 2. The parties are directed to communicate by eCourt by 12.00 on Friday 18 July 2015 with an agreed date, preferably in the weeks commencing 20 and 27 July 2015, for a mention to discuss the further progress of the seven appeals. Linda Pearson 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: 10 July 2015