Bluebank Properties Pty Ltd v Willoughby City Council

Tipalea Watson v Ku-ring-gai [2003] NSWLEC 253 North Sydney v Standley 97 LGERA 433 CASES CITED: Vacik v Penrith [1992] NSWLEC 8 Meck v Waverley(2) [2005] NSWLEC 363 Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 par 47

APPLICANT Mr J. Doyle, solicitor with Ms F. Elliot, solicitor, of Doyles Construction Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms H. Irish, barrister Instructed by Ms M. Astridge, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10707 of 2007 Bluebank Properties Pty Ltd v Willoughby City Council

JUDGMENT 1 This is Appeal No. 10707 of 2007 about the refusal of a s 96 modification application for a consent issued by the Court on 19 January 2005 for a three (3) townhouse development at No. 72 Sugarloaf Crescent, Castlecrag. The development had each town house on a separate Torrens Title lot and the subject property is the middle townhouse on Lot 302 DP 13613.

2 I was told this development has been under contention for some time, and there are other proceedings before Justice Biscoe requiring, should I foreshadow dismissal of this appeal, that I defer handing down the judgment until His Honour completes his Hearing. 3 Attending the hearing for the Respondent were: o Ms H Irish, barrister; o Ms M Astridge of Mallesons; o Ms D Laidlaw, town planner; o Dr D Martens, engineer and ecologist. 4 A number of local residents attended on-site and three gave evidence, namely Ms G Spies, Mr T Edye and Mr B Wilson the latter representing the Progress Association of Castlecrag.

5 Attending for the Applicant were: o Mr J Doyle, solicitor, o assisted by F Elliot; o Mr P Kozarovski, engineer specialising in drainage, hydrology and water cycle management. The Site, Locality and Statutes 6 The site is very steep having a fall of about 14m down from the street boundary over a distance of about 40m. The site continues downhill, but due to an extensive foreshore building line (FBL) setback to Middle Harbour, construction is limited to areas near the street, as are the adjoining and nearby houses. The FBL was established under the Willoughby Local Environmental Plan 1995 and the provisions of Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours apply. The site is in a residential suburban neighbourhood on the lower side of Sugarloaf Crescent where there is a single row of houses (except for a few battleaxe lots) between the street and the bushland down to Camp Creek. The proposal 7 The approved development for lot 302 steps down the hill with 3 habitable levels plus a garage and entry level up at the street, and a pool terrace at the foot of the townhouse. The levels are described on the subject Exhibit F drawings as: o Garage and Street level. o Upper floor Plan o Mid Level Plan o Lower Level Plan o Ground Level Plan (pool terrace). 8 In the approved plans at the pool terrace, there is only foundations under the house and an external spiral stair down from the Lower Level to the terrace.

9 This modification application seeks to excavate behind the Family room on the Lower Level to create a Home Theatre/Games room and a Store. On the terrace level it seeks to excavate under the house behind the terrace to create a Rumpus room and En-suite and an internal stair. The external spiral stair is to be kept, and the pool terrace made split level with part up at the Rumpus floor level and part down at the pool level with five steps between. Contentions

1. The development is not substantially the same as originally approved and does not satisfy s 96(2)(a) of the Environmental Planning & Assessment Act 1979. This is due to excessive excavation to convert sub-floor areas to habitable rooms, it increases the floor space of the dwelling by 50%, and changes the building from 3 habitable levels to 4 habitable levels.

2. The SEPP No. 1 objection that was upheld in granting the original consent was based on the breach of the height standard being caused by the desire to minimise excavation and the constraint of the site being steeply sloping and the extent of breach being minor. The bases of minimising excavation and the breach being minor do not apply to this application.
3. The extent of additional excavation will disrupt the sub-surface drainage patterns of the site resulting in an unacceptable impact on the sensitive foreshore and bushland areas of the site. The respondent notes that this contention may be dealt with by way of appropriate conditions.

4. The excavation works will require a significantly greater number of truck movements that would affect detrimentally the amenity of the residential area.

The Evidence 10 A summary of the objectors' evidence is that the extra floor space sought by the modification increases the size of the dwelling by 50% and that would negate the SEPP No. 1 objection upheld by the Court in the proceedings that granted the original consent. They say it is a substantially different development. The impact of the extra excavation required to create the additions has unknown implications for downhill vegetation in the bushland of the foreshore that is considered to have valuable biodiversity. This is especially so if an approval of this proposal sets a precedent for the other two adjoining townhouses (not yet built), and elsewhere for houses on the boundary of the FBL along the escarpment. Some of the proposed rooms in excavated areas do not appear to have any windows for light and ventilation.

11 Dr Martens gave on-site evidence on the first day of the hearing. A summary of his opinions is that the deep excavation is likely to change the sub-soil hydrology and effect vegetation downhill, especially a significant tree at the bottom of the site. The concentration of stormwater drainage discharge could erode the steep terrain. 12 The existing consent plans, after several modification approvals by Council, had overtaken the subject modification's plans tendered in Exhibit F. Council had approved, in the interim, a lift or elevator and relocation of the stairs and this had included changes to the room layout of each floor, compared to Exhibit F. The numbers of rooms and their uses remained similar. I should mention the extra excavation and rooms of this application had not been part of any plans approved by council to date.

13 At the start of this Hearing, Exhibit F held the main plans before me. There were some sections in Exhibit E showing excavation, concrete on-ground slab and load bearing retaining brick walls with sub-soil drainage. Exhibit F did not show the current room, stair and lift layout. 14 The applicant had assured me that the subject townhouse modifications could be built without any affectation of the immediately adjoining approved townhouses that butted up against each other in several locations with zero side boundary setbacks. The modifications proposed needed excavation deeper than the adjoining townhouses, and showed "over-excavation" across the side boundaries into Lots 301 and 303. The subject plans indicated sub-soil drainage outside the side boundary walls of lot 302, and therefore under the adjoining townhouses. Drainage easements or stratums would be needed. The subject plans showed retaining walls three metres high apparently in 100 millimetre thick masonry that would hardly be structurally adequate.

15 Ms Laidlaw said that stairs on the Upper floor level had a headroom problem due to floor level heights shown on the plans. She noted that now sub-soil drainage was shown under the adjoining townhouses close to the side boundaries. She said as a result the adjoining townhouses could not put footings down on their side boundaries as required by their own consents. There would have to be unknown arrangements for structural support. Also she noted that stormwater pipes are underfloor and would need connections through sumps that were not shown. 16 The applicant said it could all be fixed at Construction Certificate (CC) drawing stage. I said with these and perhaps other unknown matters, I could not know the facts of the modification proposal. Development consent drawings and construction certificate drawings had to be co-ordinated to minimise the need for a private or council certifier to guess or interpret wide differences between plans. Using Exhibit F there must be wide differences to any CC plans. I asked for the current CC plans because construction on-site had commenced with significant excavation.

17 The CC plans were produced in Exhibits 11 and 12 and showed pier & beam sub-floor and party wall construction that is a significantly different structural method to separate load bearing walls on footings as in Exhibit F with each townhouse built separate on its own lot. The CC system would also need arrangements for mutual support contrary to the applicant's submission that each building would be independent. Also Dr Martens had not seen these CC drawings and it may have changed his opinions in the evidence he gave on-site. 18 It was put to Ms Laidlaw that the CC drawings show a different means of stormwater drainage to that shown in the subject modification application.

19 She said that Exhibit 11, the architectural plans showed rainwater detention tanks under the garage, and the house and the pool terrace with pipes between much the same as originally approved and the same as the subject modification application. The structural system, shown in Exhibit 11 was load bearing walls on strip footings, some of the walls having to be retaining walls, much the same as the subject modification application.

20 The differences came in Exhibit 12, the engineering drawings that showed no details of drainage, but had a different structural system as described above. 21 She noted according to the structural drawings the Rumpus and Store rooms in Exhibit F would be more than 1m above natural ground level, and therefore, under the applicable "height" and "storey" definitions made the whole of that floor part of the "floor space". She said in the SEPP No. 1 objection upheld to approve the original DA, those levels of the house only had an excavated access corridor that made it 3-storey and that had been considered minor.

22 The subject modification makes the Store and the floors above it a full 3-storey, and part of the Rumpus room and the eastern parts of the rooms above it a full 3-storey. The eastern façade is the dominant part of the building seen from public vantage points around the Castlecrag and Camp Creek escarpment. A 2-storey maximum applies under the statute. 23 Also because the design steps down the hill, converting the pool level to a habitable floor makes the house look 4-storeys from the east, or 5-storey if you include the Garage level, and from some of the high public vantage points around the escarpment, the 5 levels would be seen.

24 Ms Laidlaw also noted on Sheets SO2 and SO4 in Exhibit 12, the detail slab drawings, showed continuous concrete slabs and reinforcing across lot boundaries, so the townhouses are not intended to be constructed as independent buildings. The applicant said they were to be independent of each other, with each on its separate Torrens Title allotment. As a result the need for stratums or easements for support arise again. 25 I looked at Exhibits 11 & 12 and compared them to Exhibit F. I note that There were three stormwater detention tanks shown on Exhibit 11. One tank is under the Garage, another on the Lower Floor level in a subfloor space, and another under the pool terrace.

26 The lack of a set of drawings showing all the approved changes to which the modification would apply (if granted), made it difficult to continue the Hearing, and the expert evidence at least of the respondent needed updating, especially Dr Martens. An adjournment was given with Directions. Updated Proposal 27 On resumption, an updated set of subject plans was tendered in Exhibit H, and the council tendered in Exhibit 17, a copy of its latest consent plans issued on 2 January 2008. Exhibit 17 showed the new lift and stairs and the re-arranged room layout.

28 Exhibit 17 is Development Consent No. 2002/1578/C for a townhouse on lot 302 with 4 levels comprising: o Street Level with elevated off-street driveway, Garage, Entry Bridge, stair tower & lift. o Upper Floor with Store under the garage, stair tower & lift, 3 Bedrooms, 2 Bathrooms and Balcony facing east. o Mid-floor with stair tower & lift, combined Living and Dinning Kitchen, guest WC and east facing Terrace (that is on the roof of the Lower Floor). o Lower Floor with stair tower & lift, Family room, Laundry, 4th bedroom & En-suite and a balcony with a spiral stair down to a pool terrace that is partly elevated. 29 Exhibit H reflects the changed room layouts in Exhibit 17 and has added the new rooms sought in the subject application, being the Theatre/Games room and Store on the Lower Floor behind the Family room, and the new Rumpus room level underneath the Lower Floor level.

30 In comparing Exhibit H with Exhibit 17, I note a stormwater detention tank shown in Exhibit 11 on the Lower Floor Plan in a subfloor space (retained in Exhibit 17) below the Kitchen and part of the Living room will be displaced by the proposed new Home Theatre/Games room in Exhibit H. The tank is shown in Exhibit H relocated into an extra excavation on the next level down behind the proposed Rumpus room, meaning there is more excavation at that level to about 4.5m below the sloping natural ground level above, as measured on Exhibit H. The other detention tanks are beneath the Garage and under the pool terrace. 31 Exhibit H shows the pier and beam foundations of each floor level as they step down the site. The underside of each slab closest the ground is kept above the excavated level in a sub-floor space too low for a crawl space. The drainpipes are now shown in section drawings attached to the underside of the slabs. Although there is no drainage plan, the pipes are presumably within their respective lots. Where the sections and floor layouts cross boundaries, there are lines presumably to show structural separation between townhouses. No new engineering plans were tendered to confirm how this is to be done.

32 There is still over-excavation from Lot 302 beneath Lots 301 and 303 to accommodate the new Rumpus room level. No means of retaining the 2.7 metre high excavations there, or 4m high excavation faces, shown in Exhibit H, under and at the sides of the townhouses on Lots 301, 302 & 303 are indicated. 33 The applicant in text attached to Exhibit H says that no easements over adjoining dwellings are needed and there is no effect on them. Also it confirms Exhibit 12 shows the structural system. It says, too, there is minimal impact of drainage on retained trees.

34 I note that Exhibit 12 still shows concrete slabs in places running across lot boundaries. The only retaining wall details are for a 1.5 metre high wall at the street boundary to support the public footpath reserve where the vehicle crossing connects with the driveway suspended concrete slab.

35 The applicant said that the structural system of pier & beam allows ground water to flow almost unrestricted under the building so that hydrology would not change, and Mr Kozarovski's report said there is little sub-soil ground water on the site anyway. The collection of surface water in detention tanks and with each lot having a reticulation system to the retained trees, they should survive as well. 36 The respondent put that raising the building on piers does not overcome Dr Martens concerns, and the detention tanks cause more excavation. Conditions framed by Dr Martens should be imposed if any consent is granted. The applicant objected to, those conditions.

37 Cross examination of Mr Kozarovski and Dr Martens ensued.

38 Mr Kozarovski said he had inspected the site and the uphill catchment was around 500 sqm which is small and could only deliver minor water volumes onto the site. Most of the uphill catchment is on the uphill side of the street and the street drainage captures any runoff and drains it away from the site. 39 He had looked at a sandstone outcrop on the uphill side of the street that had been created by a cutting for the road. It is compacted sandstone in layers that slope south away from the site. No vertical cracks were observed there or in the excavated faces on-site. He concluded that NO surface or groundwater would enter the site from upstream.

40 With the subject proposal collecting all roof and paved area rainwater, there would be minor overland flow of rain and ground water. The sandstone on the site if it is the same as the outcrops would absorb little, and he saw no wet spots on excavated faces on-site except where neighbours runoff flowed onto it. So he concluded in pre-development conditions (unexcavated) there would be no infiltration of the sandstone as the steep slope would cause fast runoff. 41 Given the proposed stormwater collection tanks and the overflow dispersal at the foot of the site to maintain predevelopment overland flows he concluded the surface runoff regime would be the same or similar before and after development. In regard to sub-soil hydrology he concluded there would be no change as there is no ground water flows now. This s96 modification would change nothing he said.

42 Dr Martens said the updated s96 plans in Exhibit H showed there would be even more excavation than under the initial Exhibit F plans. There had been no sub-surface geotechnical tests done on the site to know whether the sandstone beneath had the same characteristics as that seen on the surface.

43 Nor, apart from Mr Kozarovski's observations, had there been any tests of groundwater flows, saturated or unsaturated, on-site or uphill and downhill, that may be affected by the large excavation. There may be significant changes that could effect surrounding infrastructure, adjoining properties, vegetation and groundwater dependent ecosystems. 44 Ground vibration limits would also come out of geotechnical tests to minimise potential damage to adjoining infrastructure and houses. Any need for shoring during construction and retaining walls for long term support would also result.

45 In checking Exhibit H he noted there were large excavation faces of up to 4m high proposed, cuts into rock for piers, over excavation from Lot 302 under the adjoining lots. The excavation line on the drawings indicated undercut of strata above, and a hollow on one excavated shelf that would hold water.

46 It was put to him the lines were just indicative. He said if so that would be unprofessional. Even if the line was redrawn to good engineering practice, most of these features even in rock areas would require support of some kind, be it rockbolts, "Shotcrete" walling, shoring or masonry retaining walls. 47 Dr Martens said Mr Kozarovski's evidence came from a look at what could be seen on the surface. His opinion that the sandstone is impervious and there is no ground water movement appears to come without any testing, or observation of 1 in 5 year, 1 in 20 year or 1 in 100 year storms. Sandstone is not impervious, and ground water gets into it in many ways other than vertical cracks. Knowledge of the geology and hydrology and calculations of overland and sub-surface flows are needed.

48 Mr Kozarovski agreed he had not done tests to know what is below the surface of the existing excavation, and there is 2-3m more to be taken out if this modification is granted. He said it is solid rock and he did not expect any problems. If there is a water layer in the rock it will be permanent "old" water and not flowing, he said.

49 When asked if the excavations would need shoring or retaining walls, he said that is not his expertise. 50 Dr Martens said that vertical cracks and rock layer bed planes can be hairline and missed in visual observation. Piezometer testing to identify moisture content is necessary, and to calculate if excavation will lower a water table by "draw down". The sub-surface moisture levels are important for vegetation retention downslope and for water dependent ecosystems in the soil that co-exist symbiotically with the vegetation.

51 He said the piezometers needed to be in place for a month, one at the top and one at the bottom of each lot. The test bores for geotech need 4 boreholes in Lot 302, and if a variation between them is found another test bore is needed to check the change. This would give information about long term exposed rock or soil faces, safe batters or need for retaining walls, rockbolts etc. Mere observation of existing rock faces is not enough especially when they are not at the critical points of construction. These tests should have been done at DA stage, in his opinion, not at CC stage as this development has evolved. 52 Dr Martens confirmed his written opinion that with the appropriate tests and engineering and hydrogeological design to protect vegetation and ecosystems, solutions could be found. But it required compliance with his draft conditions in Exhibit 13.

Conclusions 53 The applicant put that the proposed modifications would hardly be seen as it would only show sliding glass windows on the east elevation at the swim pool terrace level. The essence of the original consent is not changed. The building is the same height, it is only what happens under the building that changes, but it remains outwardly, the townhouse as previously approved.

54 In regard to the height exceedance and the SEPP No 1 objection in the original consent that allowed the exceedance, the respondent says that it must stand in this s96 application, on the same bases as it was upheld originally. A new or amended SEPP No. 1 cannot be used in a modification application, a fresh DA would be needed.

55 The applicant says the original SEPP No. 1 was about the height limit as it is defined and relates to "natural ground level" The drawings show various profiles for the "natural ground level". What it was is open to conjecture within a reasonable tolerance by looking at the sides of the existing excavation. The applicant looks to the development control plan (DCP) that measures at each point above natural ground to the ceiling of the topmost floor above it; also a lower floor whose ceiling is less than 1 m out of the natural ground is not considered as a storey. The applicant says that at any point where the ceiling of a floor (as the building steps down the hill) is more than 1m above natural ground, the proposal is only 2-storey. 56 The respondent says that the DCP definition is inconsistent with the LEP and the latter being the statute must be dominant. In it, if any part of a floor is more than 1m above natural ground, the whole floor is counted a storey. Both of the s96 excavated rooms have parts that are more than 1m above ground. Therefore the parts of rooms in this s96 that underlap rooms above, create two locations of 4-storey on the east elevation where it is visually obvious. The original approval allowed by SEPP No. 1 was for 3-storey in a zone that allows only 2-storey. Another consideration in allowing the SEPP No. 1 was the 3-storey component is "minor", and the design minimised excavation in spite of the steep slope, and sat "lightly on the ground. The proposal is substantially different to the original, it is 4-storey, and so heavily excavated to achieve 50% more floorspace that it no longer sits lightly on the ground.

57 The respondent says there are still anomalies in the Exhibit 12 CC drawings that require easements and arrangements for mutual support because there are single beams along lot boundaries supporting concrete slabs that cross lot boundaries even if the walls above them have separate masonry for each town house. The applicant says that an original condition of approval is that all 3 townhouses must be constructed at the same time, so such things can be co-ordinated. 58 Looking at the Exhibit H plans, the respondent noted that the typical section of Unit 302 on Drawing. A4 was taken at a point where only the detention tank on that level creates section that is 3-storey, but 4-levels. Without any original natural ground line surveys to verify that shown on the section, I can only accept the ground line shown to demonstrate the tank space in the subfloor does not create a "storey".

59 But I note that the Willoughby DCP says any foundation or sub-floor space that exceeds 1m above natural ground is a storey. Apart from that, if the section was drawn at the Bathroom off the Rumpus it does create a 4-storey section of the house under the definitions, and the east elevation clearly reads as 4-storeys.

60 Ms Laidlaw in her report in Exhibit 5 prepared graphics to illustrate these points. She agreed that the 4-storey components would be "minor", but the 3-storey components allowed by SEPP 1 objection in the original consent as "minor" are now "major" in size. In considering the updated Exhibit H plans in her further report in Exhibit 16 Ms Laidlaw maintained her opinion and added that the rainwater tank behind the Rumpus and the one under the pool terrace appear to be in new excavations not contemplated in the original application. They increase the excavation even more. The modified townhouse cannot be classified as substantially the same as the original in her opinion. 61 One of the issues is the additional disruption to the road traffic and amenity of the neighbourhood due to the extra trucks needed to carry out the excavation. There was no extensive evidence on this as the applicant agreed to a Construction Traffic management condition. Although not determinative, the fact remains that the consequences of construction of the modification do change and intensify the impacts on the locality.

62 Another issue was compliance with BCA and BASIX requirements for light and ventilation of the new rooms that are essentially underground. But the respondent was content to put a condition that would require that to be dealt with at Construction Certificate stage.

63 This brings me to the fundamental issue in this case. Even though it might be possible to build the modification as proposed, can it be lawfully approved as a s96 modification application. The respondent says the original consent, and the reasons for its approval are substantially different to this modification application. The respondent says the only lawful process for its consideration would be via a fresh application. 64 The applicant's contention in Exhibit H that the structural method for the modification is the same as Exhibit 12 and that each townhouse will be separate is not borne out by Exhibit 12 or Exhibit H. As the respondent showed there would have to be easements and possibly stratums for mutual support as the structure crosses Torrens Title lot boundaries. The original approval on the architectural plans is for load bearing walls separate on each lot; so structurally the modification is substantially different.

65 The reasons Commissioner Brown for granting of the SEPP 1 objection to the exceedance of the height limit in the original consent were: The LEP does not identify the objective of the development standard although the SEPP 1 objection describes the underlying objective as a means " to limit the bulk and scale of the built form and the height of dwellings when viewed from the road or district waterways". The SEPP No. 1 objection states that the desire for minimal excavation and the steep topography of the site is largely responsible for the breach of the height standard. The resulting dwellings do not impact on, nor is the area of the variation visible from either the street or adjoining reserve and adjacent waterway. For this reason the variation can be supported. Mr Byrnes agrees that the variations to the height development standard is well founded. He states the non-compliance with the height requirement arises in an area that is for all practical purposes an underground hallway connection between permissible floorspace. 66 The words appear to confirm the respondents submission that part of the SEPP 1 justified the height exceedance on the basis of minimising excavation in this Zone 2(a) Scenic Protection Area where cl 17(2)(c) of the Willoughby Local Environmental Plan applies to "consider…the impact on bushland…..disruption of drainage patterns, alterations to water tables…".

67 The respondent says having justified the height exceedance on that basis, the modification seeks to use the higher position of the building to get 50% more floorspace by extensive excavation. A SEPP 1 cannot be used in a modification application, and the original SEPP 1 must remain valid for the modification.

68 I agree with the respondent that Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 par 47 applies and the particular circumstances must be considered. Also the relevant part of Meck v Waverley(2) [2005] NSWLEC 363 is that consistent plans must be provided that enable a proper consideration of the application. It took considerable effort to get reasonable architectural plans during this hearing, not before, and there are still inconsistencies particularly given the structural system proposed versus the architectural plans.

69 Meck referred to Vacik v Penrith [1992] NSWLEC 8 that established that the way a development is carried out is an implicit part of any consent, and clearly the applicant is intending a different method of construction compared to the original approval.

70 From North Sydney v Standley 97 LGERA 433 the respondent put that this modification represents a "creep factor" and Mason CJagreed with the Vacik position.

71 So it is not just what may or may not be seen outside a development that determines whether a modification is substantially the same. Qualitative and quantitative aspects also apply, as supported by Tipalea Watson v Ku-ring-gai [2003] NSWLEC 253.

72 As a result of these cases as put by the respondent and the facts of the subject modification application, I find that the original building approved would not remain substantially the same as required under s 96(2)(a) of the Environmental Planning & Assessment Act 1979. Therefore I foreshadow dismissal of the appeal, but in accord with His Honour Justice Biscoe's orders dated 28 September 2007, I shall adjourn these proceedings 73 Therefore the Orders of the Court are: 1. This Hearing is adjourned to a date to be fixed following a determination by His Honour Justice Biscoe as a consequence of his orders dated 28 September 2007. 2. The exhibits are returned to the parties except Exhibits 5, 13, 15,16, F, H & L.

      K.G. Hoffman
      Commissioner of the Court
      kb/ljr

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