Land and Environment Court New South Wales Medium Neutral Citation: Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137 Hearing dates: 9, 10 October, 20 November 2014; 11 February, 2, 12 March 2015; 2, 31 March 2016 Decision date: 06 April 2016 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraphs [68]- [74] Catchwords: APPEAL: s 121B Order – Unauthorised works - Demolition – Retaining walls - Landscaping and reinstatement works – Tree species DEVELOPMENT APPLICATION: Secondary dwelling – Whether separate or attached – Amenity and privacy 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 2012 Cases Cited: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256 Screnci & Anor v Willoughby City Council [2015] NSWLEC 1444 Screnci & Anor v Willoughby City Council [2015] NSWLEC 1543 Willoughby City Council v Screnci [2015] NSWLEC 192 Category: Principal judgment Parties: Joseph Screnci and Paula Screnci (Applicants) Willoughby City Council (Respondent) Representation: Counsel: Mr J Johnson (Respondent) Solicitors: Mr C Shaw, Swaab Attorneys (Applicants) Ms K Arthur, King & Wood Mallesons (Respondent) File Number(s): 10972 of 2013, 10527 of 2014, 10579 of 2014, 10803 of 2014, 10804 of 2014 Publication restriction: No Judgment 1. This is the fourth judgment in a number of Class 1 appeals brought by Mr and Mrs Screnci in respect of works undertaken and proposed at their property at 57 Minimbah Road Northbridge. 2. The appeals are: 1. an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an Order under s 121B of the Act issued in relation to alleged non-compliances with development consents granted in 2004 and 2005 and additional unauthorised works, requiring the applicants to undertake and complete specified works (10972 of 2013); 2. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for landscaping and other works including stairs and retaining walls between the existing dwelling and the northern site boundary of the site at the foreshore of Sailors Bay (10579 of 2014, 10527 of 2014); 3. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for alterations and additions to the dwelling for the purposes of a secondary dwelling and ancillary outdoor terraces with pergolas (10803 of 2014, 10804 of 2014); and 4. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, relating to internal alterations of the subfloor of the dwelling for a pantry, home theatre, corridor and relocation of a powder room (10802 of 2014, 10805 of 2014). 1. The seven appeals were heard together, and on 10 July 2015 judgment was delivered: Screnci & Anor v Willoughby Council [2015] NSWLEC 1256 (the July Decision). In the July Decision the background to the applications and the appeals is outlined. Those reasons identify, and provide detail of, the applicable planning controls in the Willoughby Local Environmental Plan 2012 (the 2012 LEP), under which the site is zoned E4 Environmental Living; the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP); the Sydney Harbour Foreshores and Waterways Area Development Control Plan (the Sydney Harbour DCP); and the Willoughby Development Control Plan 2006 (the DCP). In those reasons I concluded that development consent should not be granted to the development applications relating to the landscaping and other works between the dwelling and the foreshore (10579 of 2015) and the secondary dwelling (10803 of 2014). Those reasons should be read together with this judgment. 2. The parties reached agreement on works and certification that would enable the issue of a building certificate and the granting of development consent for the internal alterations to the subfloor area of the dwelling, and orders were made by consent to dispose of the appeals in matters 10802 of 2014 and 10805 of 2014: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1444; Screnci & Anor v Willoughby City Council [2015] NSWLEC 1543. 3. The parties have discussed amendments to the landscaping and ancillary works in an effort to settle a form of a modified Order that could direct, and authorise, works to address the issues raised in the appeals 10972 of 2013, 10527 of 2014 and 10579 of 2014. They have been unable to reach agreement on a final landscaping scheme, or conditions, and the resolution of those appeals depends on which of the alternative schemes is adopted. The applicant has amended the proposed secondary dwelling development application, and the Secondary Dwelling DA appeal (10803 of 2014) must be determined. Landscaping 1. The applicant proposes a landscaping scheme in plans dated March 2016 prepared by Arcadia Landscape Architecture (ex FF). The key elements of the scheme (the Applicants' Scheme) include the removal of the central staircase from the dwelling to the foreshore other than for a small section of steps below the terrace; retention of two terrace areas on the western and eastern side of the site, connected by a timber walkway, for private open space for the proposed secondary dwelling; a proposed new paved path running across the site and then down through proposed new landscaped areas to the foreshore; new timber stairs on the eastern side of the site connecting the terrace to the paved pathway and stairs; privacy gates for the secondary dwelling on the eastern side of the site; and new planting. The proposed landscaping includes one Angophora costata (mature size 20 x 10m) on the eastern side of the landscaped section closest to the foreshore; one Acacia floribunda (6 x 3m) and one Banksia integrifolia (10 x 5m) on the western side of that landscaped section; two Banksia serrata (10 x 5m), one on the western side of the landscaped section immediately below the terrace and the other on the eastern side of the site in the centre of the site; and four Glochidion ferdinandi (10 x 5m), one on the western side of the site immediately below the terrace, two on the eastern side of the site in the centre of the site, and one in the centre of the site in the landscaped section closest to the foreshore. 2. The Council proposes a landscaping scheme in a Landscape Concept Plan prepared by Powe Partnership Pty Ltd dated February 2016 (ex 26). That scheme (the Council Scheme) also proposes access to the foreshore from the dwelling commencing at the eastern side boundary, rather than centrally as presently constructed, and with pathways running across the site connected by short sections of stairs just below the terrace, and on the eastern and western sides of the site. The levels of the pathways, heights of walls, and the stairs, differ from those proposed by the applicants. Both schemes have timber stairs over the rock shelf and retaining wall on the eastern side, and timber decking between the eastern and western terrace. The Council Scheme proposes the cutting back of the existing slab on the eastern and western terraces, to create garden space on the western side and to reveal the remaining rock shelf on the eastern side, and removal of the stairs and wall below the terrace. 3. The Council Scheme proposes three Angophora: one in a similar location to that proposed by the applicants in the landscaped section closest to the foreshore, and the other two on the western side of the site, one in the foreshore landscaped section and the other in the section immediately below the western terrace. The Council Scheme proposes three Banksia serrata, in the central landscaped section on the eastern side of the site; and four Banksia integrifolia, three on the western side boundary and one on the eastern side. 4. Both schemes continue the numbering adopted in the July Decision for the proposed retaining walls, namely walls E1, E2, E3 and E5 along the eastern boundary from the dwelling to the foreshore, and W1, W2, W3, W4 and W5 along the western boundary from the dwelling to the foreshore, and propose the removal of wall E4. 5. Mr Anthony Powe, the Council's landscape expert, prepared the landscape concept plans that constitute the Council's Scheme in response to the Applicants' Scheme plans. Mr Powe prepared a Statement of Evidence comparing the two schemes (ex 25), noting three key areas of difference: the extent of removal of the upper eastern terrace slab and exposure of the natural rock outcrop; the proposed levels for walls E2 and E3 and the footpath adjacent to E3; and the number of Angophora to be planted. Mr Powe noted that the Council Scheme seeks to expose the rock outcrop as an extension of the rock outcrop that extends from the adjoining property at 55 Minimbah Road, which is reinforced by raking down wall E1 with the timber stairway as it descends down past the exposed rock. Mr Powe noted that the Council Scheme indicates the height of walls E2 and E3 stepping down with the path and stairs to maintain a height of 1m, which has consequences for the resultant slope of the ground between the walls. Achievement of the 2.5:1 slope considered acceptable by the expert geotechnical engineers was difficult through the central part of the site; and in order to achieve a 1m height for wall E3 adjacent to the stairs, while maintaining a slope batter of 2:1 between walls E3 and E2, the level of the landing below the stairs needs to be raised to RL 4.50, and the Council Scheme plans indicate the additional stairs required for the lower level staircase to achieve that. 6. The Applicants' Scheme shows 9 trees to be planted, being one Angophora and 8 small/medium trees; the Council Scheme shows 10 trees, being three canopy trees (Angophora) and 7 small/medium trees. Mr Powe considered the Angophora preferable in terms of achieving the intent of the planning controls for enhancement of the canopy trees along the foreshore, and noted the tree's habit as an open canopy species enabling preservation of views and sunlight access while also providing for roosting and nesting habitat as well as seed and nectar as food sources for native fauna. The plans provide a soil volume of at least 30m3 in the areas nominated for planting of Angophora, and the provision of non-structural walls facilitates the opportunity for longer term root development as the trees mature. Mr Powe noted that the Applicants' Scheme does not indicate soft landscaping below the timber walkway curving around the front of the drum. He considered the shrub and groundcover species nominated in the Applicants' Scheme to be acceptable species for the site. 7. In oral evidence on 2 March 2016 Mr Powe explained the adjustment to the central walkway across the site necessary to ensure slope stability. He was questioned about the proposed vegetation in front of the rock shelf; his evidence was that the proposed planting, given the height of the wall in front, would not affect the view of the rock. Mr Powe accepted that it was not just Angophora that would be suitable for the site; in his opinion tall canopy trees are required. 8. The Council's engineering expert, Mr Tony Colenbrander, prepared a Statement of Evidence dated 29 February 2016 on review of the Applicants' plans (ex 27), and a further Statement dated 1 March 2016 (ex 28) reviewing a revised set of plans. Mr Colenbrander maintained his opinion that the eastern boundary wall adjoining 55 Minimbah Road should be demolished and rebuilt at a reduced height (discussed at paragraph [89] of the July Decision). He supported the agreed expert geotechnical opinion (ex 17) that a maximum batter slope of 2.5:1 was appropriate for the site; in his opinion localised steepening of the batter slope to 2:1 could be considered where required by space constraints, subject to review of the design of the supporting retaining wall. In that regard, Mr Colenbrander considered (ex 28) that the raising of the walkway level below wall E3 in the Applicants' Scheme creates a very steep slope between walls E3 and E5, which scales at 1.25:1, and which would be unstable. He considered that the TOW levels of walls W2, W3 and W4 in that scheme remain too high, referring to the agreed adjustments between the engineering experts (ex 17). In oral evidence on 2 March 2016 Mr Colenbrander maintained his position that the eastern boundary wall should be rebuilt, noting that the section of the walls connecting to that boundary wall need to be reconstructed in any event. 9. Ms de Carvalho, the Council's planning expert, provided an Addendum Town Planning Statement dated 29 February 2016 (ex 29) and a Further Addendum dated 1 March 2016 following receipt of the applicants' revised plans (ex 30). In Ms de Carvalho's opinion the applicants' amended plans do not adequately address the objectives and controls for the foreshore area, or the structural issues relating to the existing retaining walls. Her concern was for a solution that would involve restoration of the natural rock feature on the site, maximum use of dry stacked stone walls of up to 1m in height, provision of canopy tree planting with the recommended and suitable locally indigenous Angophora; and removal of excess fill to manage and restore the foreshore area and to adequately address the objectives and controls of the planning instruments. Ms de Carvalho accepted that given the extent of the unauthorised construction work the site is unable to be restored to its pre-2002 condition. In oral evidence on 2 March 2016 Ms de Carvalho maintained her position that the rock shelf should be exposed; it is a natural feature existing on the foreshore, part of which is located on the subject site. In her opinion the terrace should be behind the rock shelf and not above it. Ms de Carvalho stated a concern with the plan for the proposed secondary dwelling "Amended Terrace Design 2015" (ex GG) which shows a timber deck connecting the western and eastern terraces proposed as private open space for the secondary dwelling. In her opinion this plan is not consistent with the proposed landscaping plans, with the timber deck being in the order of 1.5-2m instead of 850mm; Ms de Carvalho stated concern as to its support. A timber, or steel, walkway would be acceptable, however her concern was with the bulk of the proposal in exhibit GG and how it would be supported off the drum walls without the addition of supporting columns. Ms de Carvalho accepted that the building would be visible behind the walkway and its balustrade. 10. At the conclusion of the hearing on 2 March 2016 there remained an issue as to the durability of the walls E1, E2, W1 and W2. In their first joint report dated 8 October 2014 (ex 11) the parties' geotechnical experts Mr Malorey and Mr Colenbrander had noted (at 3.26) that assessment by SMEC had determined structural inadequacies with the existing wall stem structures of the Type 1 (E1 and W1) and Type 2 (E2 and W2) walls, and that there was a requirement to strengthen the stem elements. SMEC had identified potential durability issues in relation to the nominated concrete cover to steel reinforcement in the wall base slabs, which required further assessment. In their Supplementary Note to Joint Expert Report dated 9 October 2014 (ex R) the geotechnical experts considered the Type 1 and Type 2 walls in more detail. In considering the magnitude of height reduction in the Type 1 and Type 2 walls that would eliminate structural inadequacies associated with the wall stem capacities for those walls, the experts agreed that both walls consist of a reinforced concrete slab foundation with starter bars and a reinforced masonry wall stem to the height of 2m above the base slab, which then extend vertically through the addition of either an unreinforced masonry/brick extension or a sandstone mortar bound rubble wall by up to 1100mm. The experts agreed on modifications for those walls, which they summarised in the following terms: Specifically with regard to the Type 1 wall, refer to Attachment 2 for modifications which include: 1.full removal of the brick component of the upper wall 2.removal of the backfill behind this element 3.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 4.ensure structural integration of slab footing to reinforced blockwork wall and into bedrock underlying remote end of slab 5.reinstate structural slab spanning from the wall stem to a new foundation adjacent to dwelling 6.retain void or use polystyrene fill beneath new slab structure down to the top of the reinforced blockwork wall With regard to Type 2 walls, refer to Attachment 3 for modifications which include: 1.full removal of the rubble component of the upper wall 2.removal of the backfill behind this element 3.construct new nib to a maximum height of 0.1m 4.ensure integration of nib to top of existing wall 5.reinstate landform with a 2.5H:1V vegetated batter between the Type 2 and Type 1 walls 1. In their Further Supplementary Joint Report of 19 November 2014 (ex 17) the experts provided additional comments on the issues outlined in section 3.26 of exhibit 11, commenting (p 3, item 2.3) on cast in-situ reinforced concrete base slab durability, in the following terms: Colenbrander notes that the cover requirements comply with the 30mm minimum requirement for 25 MPa concrete given in Table 4.10.3.2 of AS3600 but does not take into account Clause 4.10.3.5, which requires an additional 20mm of cover as the footings are below ground and not protected by a damp proof membrane. The reinforcement cover of 35mm, as confirmed in the Statutory Declaration of Michael Rimac, is therefore inadequate. Malorey notes these findings and concludes that other alternative treatments will need to be investigated. 1. The possible use of anodic protection to address the inadequate concrete cover was identified during the hearing on 20 November 2014 and 11 February 2015 as requiring further exploration, and was not clarified at the time of the July Decision. On 2 March 2016 the Council tendered a draft Condition (ex 31) relating to anode protection, in two parts: requiring installation of cylindrical magnesium anodes prior to completion of the construction of the walls to be modified with monitoring on a regular basis (at least once a year) to determine wall movement and need for replacement and replacement with a new anode when the anodes become ineffective; and a s88E notation on the title to alert successors in title of the anode system and the need for monitoring and maintenance. The applicants opposed that condition, on the basis that there was no evidence to suggest that anode protection in the retaining walls is necessary. It was apparent that there may have been relevant correspondence between the parties which needed to be clarified given the change in the applicants' legal representation in February 2016, and the parties were directed to consider further the question of protection of the Type 1 and Type 2 retaining walls. 2. The parties were unable to reach agreement and the matter was listed for further mention on 31 March 2016. On that occasion the applicants tendered, without objection, copies of a memorandum to the applicants dated 11 March 2016 from their geotechnical experts, including Mr Malorey (SMEC), and a memorandum to the Council's representative from its geotechnical expert, Mr Colenbrander, dated 15 March 2016 (ex LL). The SMEC memorandum notes that the installation of cathodic protection within the retained walls had been discussed as a means of addressing the possibilities that the wall reinforcement has concrete cover less than as required in AS3600-2009; and that regard was had to the Arcadia plans of 4 March 2016 and the Powe plans of February 2016, which have similar wall configurations. The conclusion, based on the Arcadia plans, was that on an assessment of the loss of steel through corrosion over the design life of the structures (60 years), even without the required cover of concrete to the base reinforcement to suit Australian Standards, walls W1, E1 and E2 "are expected to be adequate to meet appropriate Australian Standards for structural requirements without the need for the introduction of cathodic protection systems". In the current geometric arrangement provided, the loads imposed on wall W2 result in the structural capacity of the wall being inadequate to meet appropriate standards, however if the backfilled area between the W2 wall top and the W1 wall were revised from an estimated 2.14H:1V to 2.5H:1V (or less) batter profile then W2 would also be adequate without the need for the introduction of cathodic protection systems or supplementary structural remediation. If the batter slope remained as illustrated on the Arcadia plans one approach to overcome structural inadequacy without the introduction of cathodic protection systems would be through the introduction of wall stem tie back (anchoring) systems to support the blockwork wall. 3. In his memorandum to the Council of 15 March 2016 Mr Colenbrander disputed the wall geometries listed in the SMEC memorandum, noting differences in exposed height for wall E1 and W2, and that the backfill behind wall E2 may be steeper than 2.5H:1V; and noted that there are significant differences between the Arcadia and Powe landscape designs which need to be resolved. Mr Colenbrander referred to his evidence that some retaining wall backfill batters could be steepened from 2.5:1 to 2:1 to accommodate site geometry constraints subject to a check on retaining wall stability, and noted the SMEC advice that wall W2 cannot support a steeper backfill batter as was proposed in that area. Mr Colenbrander acknowledged that the design strategy proposed by SMEC to manage the inadequate reinforcement cover is a technically feasible approach, however geometric issues need to be resolved before a final structural assessment is carried out to confirm the design adequacy of the Type 1 and Type 2 walls. Submissions Applicants' submissions 1. The applicants' submissions addressed the three key areas of difference between the Applicants' Scheme and the Council Scheme as identified by Mr Powe (ex 25, p 2). On the first issue, the extent of removal of the upper terrace slab and exposure of the natural rock outcrop, the applicants submitted that the terrace is permissible in the foreshore area pursuant to cl 6.4(2)(b) of the 2012 LEP as "inclinators, stairs and any other structures designed to provide pedestrian access to the waterway". The primary purpose of the terraces is to provide access to the foreshore; and the secondary purpose is as private open space for the secondary dwelling. The development preserves and enhances the natural features and bushland in the immediate locality as provided in the objectives for the E4 Environmental Living zone (cl 6.4(3)(a)). There is nothing special or unique about the rock shelf in the locality. The building and landscaping do not necessarily need to replicate the landscaping of the immediate locality, and that can be enhanced by providing contrast rather than replicating natural features. The applicants' proposal meets cl 6.4(3)(b) because it is compatible with the surrounding area; and meets paragraphs (c), (d) and (e). The site has no natural or aesthetic significance over any other land in the locality (cl 6.4(3)(f)). 2. In relation to the stairs and walls, the applicants note Mr Powe's agreement that a wall up to 1.2m high could be acceptable in order to achieve slope stability; and note Mr Colenbrander's reference to a slope of 2:1 at a minimum. While in some aspects of the applicants' plans that is not provided, that is a matter that can be dealt with in detail at the construction certificate stage. It would be appropriate to address Mr Colenbrander's concerns as to the eastern boundary wall by requiring certification by an engineer of the structural integrity of the wall. 3. In relation to the proposed planting, the applicants are proposing three canopy trees, namely one Angophora with a height at maturity of 20m; and one each of Banksia serrata and Glochidion ferdinandi, with a mature height of 10m. The applicants prefer the Banksia to Angophora, and the neighbours may have concerns that the Angophora would obstruct views. Mr Colenbrander had earlier expressed concerns about the detrimental impacts of Angophora. The applicants oppose Mr Powe's proposed raking down of the retaining wall at E1 alongside the timber stairs, and oppose the removal of the stairs and wall below the central area between the terraces; this is work that would have no practical advantage as it would be screened by landscaping. There is to be landscaping in front of the rock shelf, and the Council Scheme would result in only a minor amount of exposure of damaged rock which is not unique in the locality; the necessity to cut back the slab is questionable. 4. In further submissions made on 31 March 2016 addressing the durability and stability of the Type 1 and Type 2 walls, the applicants propose a draft condition as an alternative to the Council's draft condition in exhibit 31 (ex MM), requiring that within 60 days of undertaking the works each wall is to be the subject of a structural engineer's inspection to certify structural integrity. The applicants submit that while SMEC had suggested cathodic protection for durability based on the earlier plans, on the new plans there is no need for it, and if required there is an alternative approach using wall stem tie back systems. The applicants would prefer a requirement to rebuild the walls rather than the Council's proposed condition in exhibit 31. Council submissions 1. The Council submits that while the two schemes are conceptually close, the applicants' plans will not work, and demonstrate design on the run. It is difficult to reconcile the landscape plan (ex FF, drawing 04) with the sections (ex FF, drawing 06); and the applicants' plans show batter of slopes contrary to the agreed position of the expert engineers. In contrast, the Council Scheme can work. There is no reason not to reconstruct the eastern boundary wall as the walls will no longer intersect with it at the location where the applicants' expert Mr Malorey considered at least part of it could be kept. The engineers agreed on significant work that needed to be done to bring the retaining walls to an acceptable standard. Leaving a small section of the existing wall would be a poor solution. The Council submits that the planting of Angophora would best meet the aims of the 2012 LEP, the DCP, and the SREP; they have an open canopy and provide filtered views, and there is no evidence that the neighbours are concerned. The Council relies on the evidence of Mr Paroissien that the Angophora would grow and prosper, and they are the predominant canopy tree in the locality. The rock shelf is a natural feature that has aesthetic significance, and it should be exposed. 2. In relation to the issue of anode protection for walls E1, E2, W1 and W2, the Council submits that it was the applicants' idea to deal with the durability issue by anode protection, and that the draft condition in exhibit 31 was prepared to assist the applicants. If that approach is abandoned, doubts remain, and design verification will be required with information as to the final amount of fill above and in front of each wall. The Council submits that there is still doubt, based on Mr Colenbrander's evidence, as to the consistency of construction throughout the site. Findings 1. In paragraphs [71]-[125] of the July Decision I considered the development application for landscaping and other works including stairs and retaining walls between the existing dwelling and the northern site boundary of the site at the foreshore of Sailors Bay, as then proposed in the plans in exhibits AA and DD. At paragraph [74] I noted that the appeal in respect of the development application (the Landscape DA appeal) required assessment of the impacts of the development proposed on the environment existing at the time of the determination of the application, and not a comparison with the alternative scheme proposed by the Council in exhibit 18. In the July Decision I gave reasons for concluding that the development application should not be approved. 2. At the resumption of the hearing on 2 March 2016, the applicants were granted leave to amend the development application the subject of the Landscape DA appeal to rely on the Arcadia Landscape Architecture plans now exhibit FF. Those are also the plans that the applicants are seeking to have adopted as the basis of a modified s121B Order. 3. The Council's Order of 15 November 2013 (the Order) specified the alleged non-compliances with development consents issued in 2004 (DA 2003/1260) and 2005 (DA 2004/715), and additional unauthorised works, on which the decision to issue the order under s 121B of the Act was based, in the following terms: • 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 Council provided in the Order a Schedule of Works which in summary required, within 120 days, the following: 1. Demolition works: demolish and remove unauthorised sandstone retaining walls, sandstone block seawall, unauthorised irregular shaped hard surface paving area from foreshore areas, unauthorised 1.5m wide central stairs within the foreshore area and curved stairs adjoining the lower walls of the spa structure, unauthorised concrete terraces and associate perimeter masonry retaining walls, unauthorised planter boxes and associated perimeter masonry walls (all highlighted on an attached plan); and remove fill material; 2. Landscaping and reinstatement works: reinstall informal sandstone retaining walls and ground levels within the foreshore yard in accordance with approved plan; submit detailed Landscape Plan & Planting Schedule; undertake and complete works detailed in approved Landscape Plan & Planting Schedule; and reinstate finished ground levels and provide alignment and height of stone retaining walls and seawall and associated stairs in accordance with previous development consent; and 3. Certification and documents: provide specified certification and documentation of the above works. 1. The Council accepted that in some respects the terms of the Order could not be complied with, and proposed in the context of the appeal pursuant to s 121ZK of the Act (10972 of 2013), a modified order (ex 18). The Council now proposes a modified order in the terms stated in the Draft Order Version 1 (ex 32), requiring works in accordance with the February 2016 plans prepared by Mr Powe (ex 26). 2. The Order relied on orders 2, 12, 14 and 15 of the Table to s 121B of the Act. As noted in the July Decision, the parties' planning experts agreed on the following: 58 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 … 60 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). 1. As noted at paragraph [63] of the July Decision, the applicants have not contested the basis on which the Order was issued. Given the agreed position of the planning experts, and having regard to the previous consents (ex 2), and the applicable planning controls including the 2012 LEP which requires development consent for all development other than that for the purpose of home occupations, I am satisfied that the circumstances for the issue of order 2, 12 and 15 of the Table to s 121B are satisfied. The powers of the Court on hearing an appeal under s 121ZK of the Act include the modification of the order (s121ZK(4)(b)) or the substitution of "any other order that the person who gave the order could have made" (s 121ZK(4)(c)). 2. It was common ground that the site cannot be restored to its state before the landscaping and other works the subject of the Order were carried out. The appropriate starting point is the provisions of the earlier development consents, summarised at paragraph [56] of the July Decision. The landscape plan included in Development Consent DA 2004/715 (drawing 0290a, May 2004), on which Mr Dickson relied in his oral evidence, did not provide a continuous staircase or pathway from the dwelling to the foreshore. That plan shows small sections of stairs at angles across the site connecting sections between low retaining walls, with stairs at the eastern side of the pool and spa area, described by Mr Dickson in oral evidence on 11 February 2015 as providing access to the waterfront by the "irregular stairs". 3. Two alternative, conceptually similar, schemes are now proposed. While neither scheme replicates the approved landscaping, both are generally consistent with that plan in providing for access from the dwelling to the foreshore by a series of pathways and short sections of stairs, with landscaping in between lowered retaining walls, rather than the dominating central staircase and uniform, high, retaining walls across the site as presently constructed. The issue for the Court to determine is whether it is appropriate to modify or substitute for the Order an order in the form as proposed by the Council, or an order in the form proposed in the Applicants' Scheme. 4. I agree with the Council that it is appropriate to have regard to the provisions of the applicable planning controls. In the July Decision I noted the agreed position that the Foreshore Building Line (FBL) runs diagonally across the site from a point mid way along the eastern terrace down to just below wall W4 on the western boundary, and summarised the relevant controls: 107 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. 108 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. 1. In my view that consistent approach across the three levels of planning controls is an appropriate guide in determining whether the Council Scheme or the Applicants' Scheme should form the basis of any modified Order. 2. I accept the evidence of Mr Colenbrander, and find that the Applicants' Scheme is not consistent with the agreed position of the geotechnical experts in relation to the batter slope of 2.5:1 at the walkway at wall E3, and the TOW levels of walls W2, W3 and W4; and that as shown on the sections (drawing 06), between walls E5 and E3 the slope is unstable, and that between E5 and E6, and that between E2 to E3 (section B), is also steep. Mr Colenbrander accepted that these matters could be addressed with a retaining wall; however, it is not clear on the plans provided what consequence that might have for the resulting heights of the retaining walls. 3. Mr Colenbrander assessed the plans prepared by Mr Powe (ex 27), and I accept his evidence that the retaining walls on those plans comply with the requirements for retaining wall heights as agreed between the geotechnical experts. I accept Mr Powe's evidence that the adjustments he has made to the walkway between E3 and E5, and to the area between E2 and E3, as shown on drawing SK 1 C and the sections in exhibit 26, to achieve a slope of 2.5:1. Mr Powe acknowledged that with the proposed slope batter for the area between W1 and W2 a greater extent of the wall may be exposed; however he considered that with the increased volume of space for planting, the landscaping would mean that visually a height in the order of 1.2m would not make much difference. I accept that evidence. I accept the evidence of Mr Powe that otherwise his plans achieve the maximum retaining wall height of 1m sought in section C10.3 of the DCP (see paragraph [32] July Decision). 4. Based on those findings, I am satisfied that the plans prepared by Mr Powe address the question of achieving appropriate levels for the retaining walls and walkways consistent with the agreed expert evidence and the planning controls, and are to be preferred to those in the Applicants' Scheme. 5. In their Joint Expert Report of 8 October 2014 (ex 11) the geotechnical experts identified five types of walls on site and provided a condition assessment for each of the walls. As noted at paragraph [88] of the July Decision, the experts differed as to whether Types 3, 4 and 5 walls satisfy an acceptable industry standard. Walls W3, E3 and E4 are Type 3; wall W4 is Type 4; and W5 and E5 are Type 5. The experts agreed that the Type 3 walls are of a design that satisfy an acceptable industry standard; however while Mr Malorey was of the opinion that the Type 4 and 5 walls would satisfy an acceptable industry standard, Mr Colenbrander's evidence was that there is uncertainty about assumed wall sections, founding conditions and uncertain wall drainage which does not satisfy acceptable industry standard: Mr Malorey had relied on the statutory declaration by Mr Rimac, and in Mr Colenbrander's 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. Mr Malorey in oral evidence on 10 October 2014 acknowledged a degree of uncertainty as to the foundations of the present walls, commenting that there is a greater degree of uncertainty as to the western side of the site, where there is fill placed behind the walls, more so than the eastern side, which he thought would probably be on rock: that could not be established until all the materials had been removed. 6. Walls E5 and W5 require substantial work to achieve the outcome in the Council Scheme, with the removal of the central staircase, and the addition of stairs at the eastern boundary replacing part of E5. Part of the tiled area below both walls is to be removed, and replaced by a landscaped area with a lower retaining wall constructed below. In oral evidence on 10 October 2014 Mr Malorey considered that the paving should be taken up, commenting that just because the area is paved he would not necessarily say that it is solid. Wall W4 is to be lowered and requires reconstruction where it presently joins the central staircase, and will join that part of the walkway running across the centre of the site. The geotechnical experts agree that none of walls E3, W3 or W4 (formed of a concrete wall base with an unreinforced mortared stone wall stem), or E5 and W5 (which also have no reinforced concrete elements), require a cathodic protection system (ex LL). 7. The evidence as to Types 1 and 2 walls, which do contain reinforced concrete and reinforced structural elements, is considered above at [15]. The SMEC assessment of structural adequacy in exhibit LL was based on assumptions as to the proposed geometric arrangement of the walls which, as noted by Mr Colenbrander, are not accurate. There was no dispute that inadequate concrete cover for steel reinforcement is an issue for longer term durability, with the SMEC memorandum acknowledging that one of the functions of concrete cover is to protect steel reinforcement from environmental effects and corrosion, and thus a potential consequence of achieving lower concrete cover than AS4678-2002 (Design of Earth Retaining Structures) requirements is the onset of reinforcement corrosion before the end of the design life of a structure. That memorandum states that cathodic protection systems enable the potential corrosion of steel elements that may result from their burial within soil environments, to be prevented or reduced; and if not adopted, an assessment of the potential impact of corrosion of steel elements can be taken into consideration during determination of structural capacity. On the evidence before the Court, a cathodic protection system would require monitoring and replacement. 8. In addition to the lowering of all of walls E1, E2, W1 and W2, wall E2 requires modification where it joins the eastern side boundary. Based on the agreed geotechnical evidence, it is clear that the work required for all those walls is extensive. The SMEC memorandum of 11 March 2016 (ex LL) acknowledges that due to the limited information available, assumptions had been made regarding the brick properties, mortar strength and position of the steel reinforcement within the concrete sections. Notwithstanding Mr Colenbrander's acceptance that the design strategy proposed by SMEC to manage the inadequate reinforcement cover is technically feasible, given the extent of the remedial work required, and the identified concern as to durability, the appropriate course to achieve certainty as to structural adequacy is to require the demolition and reconstruction of all those walls as part of compliance with a modified Order. 9. Having regard to the photographs of the eastern boundary wall (ex 17, attachment 2; ex Z) with the notations as to the extent of the wall that requires removal and reconstruction, and the plans now before the Court, I accept the evidence of Mr Colenbrander that the connections with the reconfigured walls E2 and E3 across the site would need to be reconstructed. Mr Malorey acknowledged in oral evidence on 20 November 2014 that whether the approach was to completely reconstruct the wall, or his preferred more limited removal and reconstruction, what he described as a "dedicated effort" involving access onto the neighbouring property would be required. Given the work required, I accept Mr Colenbrander's evidence that there is little if any practical utility in attempting to retain those parts of the boundary wall that Mr Malorey considered could potentially form a suitable foundation material for a reconstructed wall. On that basis, I accept Mr Colenbrander's conclusion that it would be a better structure to build one continuous wall down the eastern boundary and tie that into the eastern retaining walls. The modified Order should include a requirement that the eastern boundary wall be demolished and rebuilt at a reduced height. 10. The extent of removal of the upper eastern terrace slab and exposure of the rock shelf remained in dispute. The photographs annexed to Mr Rimac's statutory declaration (ex 12) show the rock shelf extending from the eastern boundary below what is now the terrace level to approximately the centre of the site during excavation of the area underneath the spa undercroft (MR-01); and remaining at the time of construction of the curved walls now E1 and W1 (MR-11, MR-14). Photographs JS-30 and JS-31 (provided by the applicant to Mr Rimac) appear to show some damage to part of the rock shelf (ex 12, annexure H). Based on the view, the rock shelf is a continuation of the rock shelf visible on the adjoining property at 55 Minimbah Road. 11. The part of the site in which the rock shelf is located is in the foreshore area, below the FBL. Clause 6.4(3)(a) of the 2012 LEP directs attention to the objectives of the E4 zone if the consent authority is considering whether to grant development consent; those objectives include ensuring that development "preserves and enhances" the natural features and bushland in the immediate locality. Section C10.2 of the DCP provides that the area below the FBL "is to be predominantly occupied by landscaping and is to be free from buildings". Clause 21 of the SREP requires consideration, again in the context of development consent, that development should "protect and reinstate", inter alia, natural landforms. In the context of the consistent approach of the planning controls, I agree with Ms de Carvalho that the rock shelf, as a natural feature existing on the foreshore, should be exposed, and the remaining eastern terrace should be cut back so that it is behind the rock shelf and not above it. 12. It is not known the extent to which the rock shelf may have been damaged in the course of the construction work undertaken by the applicants. Mr Malorey's oral evidence on 10 October 2014 was that on his assessment of the photographs, and based on what is visible on the adjoining property, if the rock shelf was to be exposed the subject to what the conditions are underneath it may require refacing; Mr Colenbrander considered that it is possible that the underside of the rock face may need some propping. A modified Order should include provision for inspection and if necessary, support works, to be undertaken by a suitably qualified person, during the course of the works required to cut back the terrace slab. 13. The applicants oppose the Council's proposal that the stairs below the terrace be removed. Those stairs on either side of the terraces were constructed without prior consent and contrary to the approved plans, and, as Mr Dickson acknowledged in oral evidence on 11 February 2015, reduced the landscaped area of the site. Removal would, based on Mr Powe's plan CON 1 C, enable soft landscaping below the terraces. That would minimise the visual impact of the structures underneath the spa undercroft, which is preferable to that part of the Applicants' Scheme. The modified Order should include provision for the removal of the stairs. 14. The parties remained in dispute as to the planting of canopy trees. The geotechnical experts had earlier agreed that development of significant root structures has potential to damage retaining walls. Mr Barnett had earlier raised concerns as to the adequacy of soil volume and width to enable development of root systems for long term tree planting. Both the Applicants' Scheme and the Council Scheme increase the volume of landscaping area between the retaining walls across the lower part of the site with the removal of E4, and both schemes propose planting an Angophora (20m x 10m at maturity) in that enlarged landscape section close to the foreshore. 15. The Council proposes a second Angophora in that part of the landscaped area, closer to the western side of the site: the Applicants' Scheme has a Glochidion ferdinandi (10m x 5m at maturity). In the landscaped area below the western terrace, the Council proposes a third Angophora and a Banksia integrifolia (10m x 5m at maturity) and the applicants a Glochidion ferdinandi and a Banksia serrata (10m x 5m at maturity). 16. Mr Powe's evidence based on the Council Scheme was that the areas nominated for planting of Angophora provide a suitable soil volume and that the proposed non-structural walls facilitate longer term root development. I accept that evidence, which is supported by the earlier evidence of Mr Colenbrander that low height rubble retaining walls provide flexibility so that any root bulb pressure is localised and repairable. Based on the expert arboricultural evidence of Mr Paroissien there would be no barrier to the establishment of the two Angophora proposed by the Council near the foreshore. As to the planting below W1, on both schemes the difference between the top of wall W2 (RL 8.56) and the western terrace slab (RL 12.35) is 3.79m. The difference in mature height and spread means that an Angophora would provide substantially greater screening of the dwelling, including both terraces, from the foreshore, while still providing an open canopy for views. The position is similar for the Council's proposal for an Angophora between W5 (RL 3.95) and W4, close to the centre of the site, approximately 8m below the terraces. The greater spread of the Angophora would assist in screening what Mr Dickson described in oral evidence on 11 February 2015 as the problem of having very large concrete walls facing the waterfront. A Glochidion ferdinandi as proposed by the applicants would provide minimal screening of the drum and terraces. 17. Having regard to the objectives of the E4 zone, which include ensuring that residential development does not have an adverse effect on aesthetic values of the area, and the intent of the DCP provisions to preserve and enhance natural features and vegetation of the foreshore area, I am satisfied that the canopy tree planting proposed by the Council best meets those objectives. The modified Order should include the planting scheme proposed by Mr Powe in drawing CON 1 C (ex 26). Secondary Dwelling 1. In paragraphs [126]-[151] of the July Decision I considered the development application for the Secondary Dwelling, the relevant plan being drawing DA-201, ex AA. At paragraphs [141]-[150] I considered the applicants' request under cl 4.6 to vary the development standard in cl 4.3A(7) of the 2012 LEP in relation to that part of the eastern terrace, boundary wall and proposed pergola which exceeded the 3.5m height limit for land forward of the FBL, and concluded that cl 4.6(4)(a)(ii), which requires the consent authority to be satisfied that the proposed development will be in the public interest because is it consistent with the objectives of the particular standard and the zone objectives, was not met, and that consent could not be granted. That conclusion meant that it was not necessary to determine whether the secondary dwelling is separate from, or attached to, the principal dwelling for the purposes of the height limit in cl 4.3A(6) of the 2012 LEP or whether the cl 4.6 variation for the exceedance of the FSR standard represented by the Secondary Dwelling DA should be upheld. 2. At the resumption of the hearing on 2 March 2016 the applicant was granted leave to amend the development application for the Secondary Dwelling to rely on the plans now exhibit GG. Those plans provide for the cutting back of the terraces each side of the spa pool undercroft, removal of any proposal for pergolas above the terraces and provision of a suspended/cantilevered timber walkway around the spa pool undercroft to connect the two terraces with provision of landscaping below to screen the structure below. The proposal includes a privacy and security gate at the top of the stairs leading from the north-eastern corner of the principal dwelling and a privacy and security gate at the top of the stairs located on the eastern boundary at the end of the terrace; and four additional access points from the proposed dwelling to the terraces around the curved edge, in addition to the doorways at the kitchen on the eastern side and the bathroom on the western side. 3. Ms de Carvalho considered the secondary dwelling application in her Addendum Town Planning Statement of 29 February 2016 (ex 29) and Further Addendum Town Planning Statement of 1 March 2016 (ex 30), and in additional oral evidence on 2 March 2016. In Ms de Carvalho's opinion the increase in size of the openings on to the terrace and the change from windows to stackable door openings around the face of the spa undercroft is not acceptable, as it adds to the prominence of the built form especially in connection with the proposed new connecting deck. Ms de Carvalho noted that approval of a secondary dwelling enables occupation and use by unrelated persons, regardless of the stated intention of the present owners that it be used by family members. In her opinion there are amenity issues with the use of the spa undercroft as a dwelling including inadequate private open space and privacy concerns for the occupants, as the terraces are the paths of travel to the waterfront and the plant room of the primary dwelling, and access to the street is via long steep stairs on the eastern side of the primary dwelling or through the primary dwelling which is unacceptable. The terraces are built to the boundary and no screen landscaping or separation is provided or proposed to mitigate adverse impacts on visual and acoustic privacy of the neighbours with increased intensity of use of that part of the site. Ms de Carvalho considered that while alterations and habitable use of the spa undercroft space is not suitable for use as a separate dwelling, it would be acceptable to consider alterations and use for a habitable purpose ancillary to the primary dwelling such as a studio or rumpus room. The use of the spa undercroft is adding a fourth storey to the perceived height of development of the site when viewed from the foreshore, and as a result acceptance of habitable use of the spa undercroft as potentially a studio space would be subject to and in conjunction with planting of canopy trees to soften and provide a degree of balance to the mass, bulk and scale of development on the site. 4. The applicants submit that the secondary dwelling is not "separate from" the principal dwelling as the structures are tied together. The amenity concerns previously raised by the Council have been addressed with extra access to the terrace from the secondary dwelling and the privacy and security gates; if any privacy concerns remain there could be a fence added, as shown on a further amended design (ex KK). Such privacy screening would not add to bulk because it would not be visible from the foreshore. The connecting timber deck would break up the bulk of the structure it sits in front of. If the proposed use as a secondary dwelling is not considered appropriate, the applicants would seek an opportunity to use the space as a habitable purpose ancillary to the primary dwelling such as a studio or rumpus room. 5. The Council submits that the proposed secondary dwelling is not "attached" to the principal "dwelling" as defined, as it is separated by a pool and spa. If the secondary dwelling is not approved, any amendment to the application to use the space as a studio or rumpus room would not be within power, as it would constitute a new development. The Council submits that even with additional privacy screening as foreshadowed on exhibit KK there would still be privacy impacts. There are other issues in relation to the secondary dwelling including the access to the street and management of garbage. Findings 1. If the proposed secondary dwelling "is separate from the principal dwelling", it is subject to a 5.7m height limit in cl 4.3A(6) of the 2012 LEP; and in the absence of a request to vary the standard in cl 4.3A(6) upheld under cl 4.6, the secondary dwelling could not be approved. 2. The term "secondary dwelling" is defined in the 2012 LEP: 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. 1. The earlier submissions as to whether the proposed secondary dwelling "is located within, or is attached to, or is separate from, the principal dwelling", for the purposes of paragraph (c) of the definition, were summarised in the July Decision in the following terms: 131 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. 132 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. 1. The submissions made on 2 March 2016 essentially confirmed those respective approaches to the issue. 2. As noted at paragraph [130] of the July Decision, the earlier evidence was that the height of the drum form and thus the secondary dwelling is in the order of 7.1m. A modified Order will adjust the levels of the walls, pathways and landscaped areas. The amended secondary dwelling floor plan in exhibit GG shows the slab for the eastern terrace at RL12.35, and the top of wall E1 at RL11.25. Section A on drawing 06 of the Arcadia Landscape plans shows also shows TOW for wall E1 at 11.25 at the landing before the stairs continue across the site to the pathway at RL9.06. Reference was made to Sheet No 14 of the construction certificate plans dated 4 December 2009, which shows that lower pool terrace at RL 16.56, and RL12.46 at the base of the drum, a difference of 4.1m at that point. 3. Paragraph (c) of the definition poses three alternatives for the location of a secondary dwelling and its physical relationship with the principal dwelling. Neither party was able to identify any previous consideration of the terms used in paragraph (c). The dictionary definitions are of limited assistance. The online Oxford Dictionary defines "separate" as "parted, divided, or withdrawn from others; disjointed, disconnected, detached, set or kept apart", and defines "attached" as "joined or connected physically", and, in architectural usage, "directly adjoining; joined to a wall, etc, rather than standing clear; sharing a wall, not detached". 4. In the case of this application, there is a physical connection through the rear wall which is the same structural wall forming the rear wall at higher levels of the principal dwelling. While there is a swimming pool and spa between the proposed secondary dwelling and the principal dwelling, that would not of itself mean that the secondary dwelling is not "attached"; it is not difficult to envisage two dwellings, one principal and the other established in conjunction with it, that are physically connected but separated by some non-habitable space such as a garage. The existence of a separate consent for the swimming pool and spa would also not in my view be determinative, as whether or not there is a separate consent would not assist in an understanding of the physical relationship, but rather in many instances could reflect a matter of timing as to when the decision is made to construct that additional element. The significant factor would appear to be the physical relationship between the dwellings, as is demonstrated by the concern in the 2012 LEP as to the height of any secondary dwelling (cl 4.3A(6)), and its size (cl 5.4(9)). 5. In the circumstances of this structure, there is much to be said for the applicants' submission that the proposed secondary dwelling is not "separate from" the principal dwelling. However, it is not necessary in my view to express a concluded view. Even if the applicants are correct, and the proposed secondary dwelling is not "separate from" the principal dwelling so that the 5.7m height limit in cl 4.3A(6) does not apply and there is therefore no requirement for a variation under cl 4.6, having regard to the amenity issues raised by its location and design it would not, in my view, be appropriate to approve the secondary dwelling, for the following reasons. 6. The proposed secondary dwelling occupies the space in the spa undercroft. Access from the principal dwelling to the foreshore is by stairs along the eastern side of the building, across the eastern side of the terrace adjacent to the spa undercroft which is to be used as private open space for the secondary dwelling, and then continuing down stairs proposed from the eastern side of that terrace. Access to the secondary dwelling from the street is down the stairs along the eastern side of the dwelling, or through the principal dwelling. I accept the evidence of Ms de Carvalho that the path of travel to the waterfront raises privacy concerns for the occupants of the secondary dwelling, and that the privacy relationships are not acceptable for a dwelling which, as defined in the 2012 LEP, is "a self-contained dwelling" established in conjunction with the principal dwelling. If additional privacy screening is erected as shown on exhibit KK, that would, as was the case with the pergolas originally proposed, provide additional bulk on a structure that is, based on the view, already highly visible from the waterway. That would not be consistent with the objective of the E4 zone to provide "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. Further, the plans in evidence do not establish to any degree of certainty how the area of private open space on the western terrace is to be connected to that on the eastern terrace; if, in an attempt to increase useable private open space for that dwelling, the connection is other than a narrow timber walkway, I agree with Ms de Carvalho that that of itself has potential adverse visual impacts through an increase in bulk. 7. In her Addendum Town Planning Statement (ex 29) Ms de Carvalho stated that while alterations and the habitable use of the spa undercroft space is not suitable for use as a separate dwelling, it would be acceptable to consider alterations and use of the spa undercroft for a habitable purpose ancillary to the primary dwelling such as a studio or rumpus room. In her Further Addendum Town Planning Statement (ex 30) Ms de Carvalho stated that if that were the case, there should be no kitchen and cooking facilities. I agree with the Council that it would not be appropriate, assuming it to be within the power of the Court if there were a request for leave to amend the development application, to consider in these proceedings a change from proposed use as a self-contained dwelling in the form of a secondary dwelling to an ancillary habitable space. It is a matter for the applicants whether they wish to pursue that course in a fresh application. Conclusion Appeal 10972 of 2013 – the Order appeal 1. For the reasons above, I conclude that the appropriate outcome is to modify the Council's order of 15 November 2013 to substitute a Schedule of Works requiring demolition and removal of retaining walls, paving and stairs and cutting back of the terraces, and construction of new retaining walls and structures including timber stairs in accordance with the plans prepared by Powe Partnership Pty Ltd in exhibit 26, and consistent with the findings in paragraphs [39], [43], [44], [46], [47], [48] and [52] above. The modified Order should include landscaping and planting in accordance with drawing CON 1 C prepared by Powe Partnership Pty Ltd dated February 2016. In addition to the planting of three Angophora, three Banksia serrata and four Banksia integrifolia, that plan incorporates shrub and groundcover species as per Plant Schedule Sheet 09 prepared by Arcadia Landsape Architects dated February 2016, and specifies that additional planting areas are to be planted with species selected from that Planting Schedule at a minimum rate of 1 shrub and 4 groundcovers/grasses per square metre. It would be preferable in the interests of certainty for a final landscape plan incorporating those requirements to be prepared and approved by the Council, as was required at paragraph 9 of the Council's Order. The final modified order should include certification and documentation requirements as set out at paragraph 16 of the Order, and specify requirements for the carrying out of the works as specified in paragraphs 17-29. The proposed order in Draft Order Version 1 (ex 32) requires re-drafting to incorporate those requirements. 2. The Council's Order specified 120 days to carry out the required works and provide certification and documentation to the Council. Draft order Version 1 specifies 6 months. The applicants seek a period of two years, on the basis that the cost of the proceedings so far, and the need to engage suitable contractors, make it difficult for the applicants to carry out the work within 6 months. The applicants tendered documents (ex JJ) outlining the legal and expert expenses incurred by them in the Class 1 appeals and the related Class 5 proceedings (Willoughby City Council v Screnci [2015] NSWLEC 192); those costs are substantial. The Council submits that while a period of 8 months might be appropriate, there is no evidence as to any practical difficulty in carrying out the works, and no financial evidence to support the documents in exhibit JJ. Having regard to the substantial work required for the demolition and removal of much of the existing structures on the site, the reconstruction of retaining walls and stairs, and the establishment of plantings, it would be appropriate to allow a period longer than the six months proposed by the Council; however, in the absence of detail to justify the 24 months sought by the applicants, a period of 12 months from the date of orders in proceedings 10972 of 2013 would be reasonable. Appeal 10803 of 2014 – the Secondary Dwelling appeal 1. In relation to the secondary dwelling, for the reasons above, I conclude that development consent should not be granted for the alterations and additions to the dwelling for the purposes of a secondary dwelling, as proposed in the amended application (ex GG). That means that the appeal in proceedings 10803 of 2014 against the refusal of consent for the secondary dwelling (the Secondary Dwelling DA appeal) should be dismissed. Appeals 10579 of 2014, 10527 of 2014 – the Landscape DA and Landscape Building Certificate appeal 1. The outcome of the Order appeal is that a modified Order will require compliance with works contained in the Council's Scheme plans, and not those proposed by the applicants in their amended Landscape DA (ex FF). That means that the appeal in proceedings 10579 of 2014 against the refusal of development consent for modifications to the existing landscaping on the site, in the amended plans in exhibit FF, should be refused. Given that the carrying out of work in compliance with a requirement of an order does not require development consent (s 121O), there appears little utility in proceeding further with that application, and on that basis I am of the view that the Landscape DA appeal should be dismissed. 2. Very little if any of the structures presently on the site will remain in their present form after the works required by a modified Order are carried out, and there seems little utility in proceeding further with the application the subject of the appeal in proceedings 10527 of 2014 against the refusal of a building certificate for ancillary works in the area between the existing dwelling and the northern site boundary. The appropriate course would appear to be to dismiss that appeal, and for the applicant to make a fresh application under s 149B of the Act for a building certificate on completion of the works required by the modified Order. Appeal 10804 of 2014 – the Secondary Dwelling Building Certificate appeal 1. The application under s 149B of the Act the subject of the appeal in proceedings 10804 of 2014 (the Secondary Dwelling Building Certificate appeal) 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 undercroft area to the rear yard. The terraces are to be the subject of further works and the stairs are to be removed, pursuant to the modified Order. The development application for the use of that space for the purpose of a secondary dwelling is to be refused. In those circumstances there seems little utility in proceeding further with the present application for a building certificate, and the appropriate course would appear to be to dismiss that appeal, and for the applicants to make a fresh application under s 149B of the Act for a building certificate on completion of the works required by the modified Order. Outcome of the appeals 1. I propose to allow time for the Council to re-draft the Schedule of Works to modify the Order issued on 15 November 2013. On receipt of the modified Schedule of Works I propose in proceedings 10972 of 2013 to uphold the appeal, and to make an order pursuant to s 121ZK(4)(b) of the Act, modifying the terms of the Order and specifying a period for compliance of 12 months. Subject to hearing from the parties as to whether any alternative course is preferable, I propose to dismiss the appeals in proceedings 10579 of 2014, 10527 of 2014, 10803 of 2014 and 10804 of 2014. 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: 13 April 2016