Land and Environment Court New South Wales Medium Neutral Citation: Stokes v Waverley Council [2019] NSWLEC 1137 Hearing dates: 18 – 19 February 2019 and 5 March 2019 Date of orders: 03 April 2019 Decision date: 03 April 2019 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are as follows: (1) The appeal is dismissed. (2) Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused. (3) The exhibits, except for Exhibits 1, 2 and K are returned. Catchwords: DEVELOPMENT APPLICATION: owners consent; existing works on adjoining land; dual occupancy; breach in FSR and height standards; excessive excavation; structural integrity; non-compliance with FSR and height. Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Waverley Local Environment Plan 2012 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Texts Cited: Waverley Development Control Plan 2012 Amendment 5 Category: Principal judgment Parties: Stephanie Stokes (Applicant) Waverley Council (Respondent) Representation: Counsel: C Leggat (Applicant) Solicitors: Boskovitz Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/220827 Publication restriction: No JudgEment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 404/2017 by Waverley Council (the Council) seeking alterations and additions to an approved five storey building for use as a dual occupancy and for additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama (the site). The site 1. The site adjoins two streets, with Thompson Street forming the southern boundary having a frontage of 12.95 m and considered the 'front', elevated side of the site. Tamarama Drive, which faces towards Tamarama Park and Beach forms the northern boundary of similar frontage and forms the 'rear', lower side of the site. The western and eastern boundaries adjoin other residential properties for a length of 49.45 m equally. 2. The site is underlain primarily by sandstone which, predevelopment, formed a 'natural' slope with a crossfall of ~17 m towards the north (and Tamarama Beach/Drive). However, currently on this site, the bulk of the sandstone terrain that formed the natural slope has since been excavated to a depth below surface of ~13 m in the south tapering to ~8 m in the centre of the site. The entry point to the site, into the driveway on Thompson Street, remains at the predevelopment elevation. 3. The site currently has steep sandstone rock faces along the southern, eastern and western boundaries. From the southern to central portion of the site the sandstone walls are self-supporting, after which the rock faces are supported by steel joists and shotcrete on the eastern boundary, and piles along the north-western boundary. In the central portion of the site, a mound of (unknown) fill has been placed, although it is unclear how deep this extends. 4. There are currently no structures located on the site. 5. The surrounding area is characterised by a variety of older and modern residential dwellings, many of which have several (3-4) floor levels to take advantage of the views across the ocean and Tamarama Beach, and in response to the sloping nature of the land. 6. The site is located within an R2 Low Density Residential Zone, as identified in the Waverley Local Environmental Plan 2012 (WLEP). Of relevance in consideration of the DA are the following clauses of the WLEP: cl 2.3, zone objectives; cl 4.3, height; cll 4.4 and 4.5, FSR; cl 4.6, exception (variation) to a development standard; and cl 6.2, excavation. 7. The proposed use of the development, as a dual occupancy is permissible with consent in this zone, pursuant to cl 2.3(3) of the WLEP. 8. The relevant sections of the Waverley Development Control Plan 2012 Amendment 5 (WDCP) for consideration are Sections 1.2 and 1.3 of Part C1, which relate to excavation and dual occupancy, respectively. Background 1. DA 404/2017 seeks to retain the building envelope and façade of an approved consent (DA 365/2014), however to amend the internal layout to accommodate two dwellings for dual occupancy use. 2. The proposed development also seeks to deepen the existing excavation for extension of the (car)lift and provide for a sump, and to fill previously overexcavated areas undertaken under a separate approved DA (365/2014). 3. The history of development at this site is complex and mostly irrelevant to the DA that is under appeal, except to say that the applicant seeks to rely on the height, floor space ratio (FSR) and excavation levels of previous approval/s. Relevantly, the site has been subject to approval of three separate DA's and one modification application (MA) since 2011, resulting in additions and modifications to the originally approved DA (494/2011). DA 494/2011 was approved by way of a s34 agreement, pursuant to s 34(3) of the Land and Environment Court Act 1979 (the Court Act), appeal number 12/10256. Subsequent decisions for development approval on this site were made directly by Council. The most significant change through the approvals history at this site, since 2011, is an increase in the excavation depth and its areal extent to accommodate an increase in FSR. 4. Excavation of the site commenced under previous consents. It is understood that excavation commenced and was deepened in response to each of the approved DA's since 2011, with the current excavation levels observed at the site made under DA 365/2014. 5. DA 404/2017 was submitted to Council on 22 September 2017, and after notification, three submissions in objection were received. 6. DA 404/2017 was submitted to the Waverley Development Assessment Panel (WDAP), on the grounds of: a conflict of interest; and departure from a development standard in excess of 10%. The Council report to the WDAP sought to approve the proposed development, however WDAP resolved to refuse the development on the following grounds: * FSR is excessive and results in an overdevelopment that is not in the public interest, * overdevelopment of the site; * retrospective approval is not permissible for (basement) excavation in excess of previous approval/s; and * development is not orderly. 1. It is noted that the architectural plans for the proposed development as assessed by WDAP have subsequently changed from what is before the Court in this appeal. As assessed by WDAP, the development sought 185% exceedance in the FSR standard, as set out in cl 4.4 of the WLEP. 2. The final plans before the Court and assessed under this appeal, show amendments to the internal layout, resulting in an FSR exceedance (of standard) of 146%, the same as under previous approvals. It is also noted that the height non-compliance is assumed at the unexcavated ground level at 2011, and which has remained the same as assessed by WDAP and as previously approved. 3. The applicant appealed against the refusal of DA 404/2017, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Court Act 1979, which commenced as a site view on 18 February 2019. 5. As the parties were unable to reach agreement, pursuant to s 34AA(2)(b) of the Court Act, the conciliation was terminated and the hearing of the appeal was held forthwith. The parties agreed to rely on observations and information obtained from the conciliation, to supplement evidence tendered in court at the hearing. 6. The Court, at the parties request, adjourned the hearing to seek further supporting evidence to clarify outstanding issues relating to the actual extent of excavation and proposed dewatering system. The applicant was granted leave with agreement of the respondent to: correct minor editing errors in the architectural plans; amend the survey plan; amend stormwater plans; update the cl 4.6 written requests for FSR and height; and also to address structural integrity, in particular with regards to the excavation and Sydney Water infrastructure. These documents form Exhibit K. 7. In addition, during the adjournment, the respondent sought leave, granted by the Court with no objection from the applicant, to amend the Statement of Facts and Contentions (SoFC) to address the height non-compliance, and to renotify the amended plans to resident objectors. The respondent did not ultimately proceed to amend its SoFC, and was unable to notify residents in sufficient time due to the availability of the amended plans. 8. The (amended) plans and documents provided in Exhibit K did not result in resolution of any issues in contention. The amended survey plan (dated 29/2/2019 by CMS Surveyors Pty Ltd) however confirmed excavation in excess of what was approved under the previous DA 365/2014. 9. The amended survey plan also identified a jurisdictional issue relating to at least two of the piles, used for structural stability along the western boundary of the site, being located on an adjoining property, 19 Thompson Street. The respondent sought leave during the hearing, with no objection from the applicant, and granted by the Court, to provide the adjoining resident with the amended survey plans. No response, and in particular no owners consent has been received by the Court on this issue. 10. Stormwater drainage, specifically the proposed location and excavation of the sump (for groundwater ingress) at the base of the car lift was resolved during the hearing by joint conference between the engineering experts. As a result, the parties agreed with leave granted by the Court, to amend the stormwater plans and relevant architectural plans, to extend the excavation to accommodate the sump, show the OSD (onsite detention) tank located in the front of site and provide water quality treatment of the seepage/ discharge. The amended plans were filed as part of Exhibit K. 11. Before judgement was reserved, at the parties request, the Court granted leave for the parties to provide draft conditions by 12 March 2019. The applicant and respondent provided draft conditions on 19 and 21 March 2019, respectively. 12. The Court sought from the parties and received further submissions by the applicant on the proposed draft conditions in dispute, namely conditions 12(d) and 17. These submissions were filed with the Court on 26 and 28 March 2019. 13. The contentions of Council, as described in the SoFC that remain in this appeal relate to: * sufficiency of the cl 4.6 written requests for variation of FSR and height standards; * structural integrity of the excavation and depth of excavation; and * public interest. 1. It is accepted that the Council have formulated their contentions in relation to the proposed development and were at the time of filing their contentions, not aware of the location of existing piles. However, I must first deal with the jurisdictional requirement of owners consent as it relates to the proposed development, which relies on the existing piles located on 19 Thompson Street, before the Court can issue a consent. This matter alone necessarily disposes of the appeal. 2. For the reasons provided below, I have no power to approve this development without the requisite owners consent. In this instance, the adjoining owners consent from 19 Thompson Street continues to, and remains to this day outstanding and I find that the proposed conditions of consent do not satisfy this requirement. Public submissions 1. A total of six residents were formally heard at the site view for the conciliation, whom expressed concern with regards to the structural integrity to adjoining properties/infrastructure and excavation precedence in the local area. Other issues that arose included: view loss; parking; and compliance with restrictive height covenant with respect to landscaping. The written submissions tendered by residents heard at the site view are provided in Exhibit 4 2. These submissions are in addition to and consistent with the written submissions made by these and other residents in response to the various notification periods that relate to this DA, and are provided in Exhibit 1. Evidence 1. The applicant has relied on Mr Daniel Bliss, Mr Glen James, Mr Vince Betro, and Mr Andrew Darroch for expert evidence on geotechnical engineering, stormwater engineering, structural engineering and planning, respectively. 2. The respondent has relied on Mr Stuart Macdonald for expert evidence on planning. Have the jurisdictional requirements for owners consent to rely on works on adjoining land been satisfied? 1. Although not a contention in the SoFC, as a consequence of information received in evidence during the hearing, namely the amended survey plan, the parties agree that there are (at least) two piles identified and constructed as part of commencement of a previous DA consent for the site, which are located on adjoining land, being 19 Thompson Street. 2. A development application must be made by the owner of the land to which the development applies. Relevantly cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) states: 49 Persons who can make development applications (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. 1. A development application must provide relevant supporting information, pursuant to cl 50(1)(a) of the EPA Reg. Relevant information that is required to support this DA includes evidence of owners consent for works that the development relies upon, as specified in Sch 1, Pt 1, 1(1)(b) and (i). 50 How must a development application be made (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, ... Schedule 1 Forms Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information: ... (b) a description of the development to be carried out, … (i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation, ….. 1. The Statement of Environmental Effects (SEE) and the plans (architectural, structural and stormwater) that support the DA, rely on a width of up to 900 mm of sandstone between the designed building envelope and the site boundary, consistent with the most recent DA consent for the site. 2. It is however clear from the amended survey plan, and agreed by the parties that the extent of sandstone relied upon for the proposed development is now primarily a 'void' between the sides of the excavation and the building envelope, particularly in the southern portion of the site. 3. The applicant does not seek to further amend the plans on which this appeal is based, however has chosen to address the issue of reliance on the 'piles' and the 'void' by way of a condition/s of consent. Mr Leggat contends, with no dispute from Mr Patterson, that the piles and overexcavation that has created the void are a result of a previous consent and structural reliance by the proposed development on these factors is resolvable through an engineering design by way of condition. 4. The fact that these works were constructed as part of a previous DA does not nullify the responsibility of the Court to resolve this Class 1 appeal, consistent with the legal principal relating to unlawfulness of past use, as set out in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 before Preston CJ. 5. It is noted that none of the supporting documents to this DA, including those most recently provided in Exhibit K, address the absence of the sandstone rock that now forms this void nor the piles located on the adjoining property. 6. It is fact that the structural assessments do not contend the full extent of the void to the boundary. There is no designed 'treatment' of this void in the architectural plans, except an acknowledgment in the hearing that there is a 'requirement' for it to be addressed, and will be done so by way of a condition. 7. To address the issues generated by over excavation of the site and incorrect location of piling, after the hearing, a condition (12) has been proffered by the parties as follows: "12 EXCAVATION AND BACKFILLING a) The extent of excavation approved is strictly limited to that detailed in the approved drawings for DA-404/2017, including drawing numbers A10.07/1 and A10.08/1. b) To the extent that the site, through previous action prior to the issue of the consent, has been over-excavated greater than necessary to accommodate approved Level 0, as approved under this consent, then the site is to be back-filled to comply with the land profile and levels approved in this consent. c) Geotechnical engineering drawings prepared by a suitably qualified and experienced geotechnical engineer are to be submitted and approved by Council detailing the back-filling consistent with this condition, prior to the lodgement of any Construction Certificate. d) All back-filling, including any approved method of support for the backfilling under (c), is to occur prior to any other works occurring on the site. e) Upon completion of the back-filling, the works are to be certified in writing by a suitably qualified and experienced geotechnical engineer as being consistent with the terms of this consent, including confirmation of finished levels and the structural stability of the fill to sustain the proposed construction of the development. This certification must be issued to the Council prior to the lodgement of any Construction Certificate. f) The issue of any Construction Certificate must include details of the certified approved fill." 1. The applicant has also provided, in communications to the Court on 28 March 2019, a subsequent structural assessment with detail of back filling works to support proposed condition 12, as shown below. The respondent has made no application to the Court to address the applicant's structural engineer's response to the proposed filling of the void. 1. It is noted in the figure above from the structural assessment of 28 March 2019 that the backfill will not extend to the site boundary and that a retaining wall is proposed to be located above a width of sandstone along the boundary. However, this is not an accurate representation for the full length of the site boundaries (eastern and western), particularly in the southern portion of the site where excavation has extended to the boundary. The plans and structural design do not resolve how the retaining wall will be fixed in locations where the sandstone does not exist. The proposed structural solution does not fully address the actual void shown on the amended survey plan, and therefore the proposed condition (12) is uncertain in resolution of this issue. 2. I am not satisfied that the proposed conditions, together with the detail from the structural engineer, adequately address the treatment of the void created by the overexcavation, nor does it address the piles located on the adjoining property from the proposed development. 3. The proposed conditions do not respond at all to the issue of reliance on the piles which are located on the adjoining property. The conditions are silent with respect to this issue. It is unclear from the plans or the structural assessment how the backfilling relates to the piles located on the adjoining property and whether there are structures, such as the retaining wall, that would be placed upon the piles. The plans before the Court appear to suggest that this would be the case. 4. I am not satisfied that the proposed conditions of consent provide a solution to structurally isolate the piles located on 19 Thompson Street. There is sufficient uncertainty as to whether the piles have been isolated and that would remove the proposed developments' reliance upon them. Therefore, the proposed conditions do not resolve the requirement for owners consent from the adjoining property. 5. The reliance on such a poorly defined condition of consent that defers detail to the construction stage of development is inconsistent with the legal principal established in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison), where Preistley JA, Clarke JA and Meagher JA concluded that a condition cannot leave open the possibility that a development may be carried out not in accordance with the consent granted. Clarke JA states: "Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final." 1. Preistley JA, Clarke JA and Meagher JA, in their opening statements of the Mison. judgement recognise the significance of ensuring conditions complement the consent being sought, as described below: [1] If a condition imposed upon a purported consent to a particular development application pursuant to s 91(1) of the Environmental Planning and Assessment Act 1979 has the effect of significantly altering the development in respect of which the consent is made or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made then the purported consent is not a consent to the application. 1. I find that the proposed development relies on the piles located on an adjoining property and therefore requires evidence of owners consent for application of the DA before development consent can be granted by the Court, pursuant to cl 49(1) of the EPA Reg. 2. The legal requirements for requiring owners consent, is explored by Basten JA, Leeming JA and Preston CJ in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha). At [90] of this judgement, Preston CJ explains the requirements to satisfy s 4.15(1) of the EPA Act: "[90] The consent authority determines the development application that has been made (s 80(1) now s 4.16(1) of the EPA Act). In determining the development application, the consent authority takes into consideration such of the matters in s 79C(1) now s 4.15(1) of the EPA Act as are of relevance to "the development the subject of the development application." 1. Preston CJ in the Al Maha judgement at [91] goes on to explain the relevant information that must support a development application: "[91] The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including "a site plan", "a sketch of the development", and "a statement of environmental effects" (in the case of development other than designated development or State significant development) or "an environmental impact statement" (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, "the location, boundary dimensions, site area and north point of the land" (cl 2(2)(a) of Sch 1 of the Regulation). ... … [93] These accompanying documents describe the development to be carried out and the land on which the development is to be carried out." 1. Importantly, Preston CJ in the Al Maha judgement describes what is required to satisfy a consent authority when a proposed development relies on works beyond the land to which the applicant of the DA owns: "[94] If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63]. [95] The giving of owner's consent to the making of a development application with respect to the owner's land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority's determination of the application. That is to say, the giving of owner's consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so. On an appeal from a determination of the consent authority, the Land and Environment Court cannot uphold the appeal and grant development consent to the development application unless the owner's consent to the making of the application has been given: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)]." 1. I find that the proposed development relies on existing piling including piles located on 19 Thompson Street and that there is no owners consent provided to do so. This is a fundamental jurisdictional hurdle that has not been overcome. 2. I need evidence at the time of the assessment to be satisfied that the works can be isolated to the applicant's land and that impacts on the adjoining properties are satisfactorily addressed, particularly in circumstances where an adjoining owner has raised a concern about cracking of structures on his site and suggested generated by the excavation to date. There is insufficient information before me to satisfy the assessment of s 4.15 of the EPA Act. 3. I find that I have no power to grant consent to DA 404/2017, as cll 49(1)(b) and 50(1)(a) of the EPA Reg have not been satisfied. Conclusion 1. I have determined that the DA does not satisfy the requirements of cll 49(1)(b) and 50(1)(a) of the EPA Reg. I therefore find that the DA does not comply with s 4.15 of the EPA Act. 2. I am not required to address the other contentions raised by Council, as they relate to this DA, and I make no decision as to their resolution. 3. As I am not satisfied that the proposed development is lawful as it does not comply with the relevant provisions of the EPA Act, I am unable to grant consent to DA 404/2017. Orders 1. Consequently, the orders of the Court are as follows: 1. The appeal is dismissed. 2. Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused. 3. The exhibits, except for Exhibits 1, 2 and K are returned. ……………………. Sarah Bish 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: 03 April 2019