Chami v Lane Cove Council

Solicitors: N/A (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10398 of 2014

Introduction

1. SENIOR COMMISSIONER: Bayview Street at Northwood is the final element of a double dogleg cul-de-sac street system. Bayview Street's final section rises at a moderate slope in a generally north-north-westerly direction. At its end, on the high (eastern) side of the street, is located a residential property that has undergone extensive additions and alterations in the last few years - extensive additions and alterations that remain incomplete. This property is 8 Bayview Street (the site).
2. As described in more detail later, although these additions and alterations were carried out after the granting in 2008 of Development Consent DA 325/07 (the 2008 development consent) by Lane Cove Council (the Council), that which has been built varies in many respects from that which was approved by the Council. Those variations range in scale from the minor (such as additional built-in cupboards) through to major elements (such as the relocation of an internal stairwell providing access from the middle to the uppermost level of the dwelling and the consequent creation/expansion of rooms).
3. The site slopes significantly down toward the street and would have had, in its natural state prior to the erection of the original dwelling, a cross slope down from left to right when faced from the street. Although the allotment is not oriented in a strictly east - west direction, as is conventional in plans and their interpretation in proceedings such as this, the various aspects are designated to the four cardinal points of the compass in order to be able to understand that which is described concerning what has or is proposed to take place on the allotment. In these circumstances, the street frontage is thus designated as being to the west with the other three relevant designations flowing from that notional orientation.
4. The surrounding residences are of varying ages and styles ranging from several that are comparatively modern through to the neighbouring dwelling to the south - one that would appear to be from the mid-20th century (but with substantial additions and modifications to its original form). As a consequence, the streetscape at the head of the cul-de-sac in Bayview Street can best be described as eclectic and diverse.
5. Although nothing in particular turns on it, the absence of a turning circle at the head of the cul-de-sac has made it possible for a second vehicle footpath crossing to be installed on the frontage of the site with both such crossings on the site's frontage being parallel to the front boundary fence on the site. At the present time, the southern of those footpath crossings is used as a driveway to access the single vehicle garage constructed in a semi-basement style under the northern edge of the front facade of the dwelling on the site.
6. The more northern of the two footpath crossings presently provides access to a pathway along the northern side of the dwelling. The pathway provides access to the front door of the dwelling and, beyond the front door to an area adjacent to the line of the northern facade of the dwelling, which area, at the time of the site inspection, had had pavers laid out in a spaced fashion indicating the locations at which they might be proposed to be installed but were not, yet, so installed.
7. Immediately adjacent to this area, and under the approved eastern extension to the dwelling footprint, is located an extensive open area. This open area was described during the proceedings has an undercroft. It has a single supporting pillar in its middle on its northern elevation; an unbroken retaining wall on its eastern elevation; partially enclosing walls on the southern elevation but with two separate openings toward the boundary fence with the property to the south; and, to the west, a masonry wall with a double width sliding door leading into the lowest of the three habitable areas of the dwelling. The area accessed by this door, although now modified as later discussed, forms part of the original dwelling on the site.
8. A photograph of the western elevation of the dwelling, as it presents to the street directly to its west, is reproduced below. This photograph was part of Exhibit H.

The planning history of the development

1. As earlier noted, in 2008, the Council granted development consent, subject to conditions, for extensive alterations and additions to the existing dwelling. That consent was granted on the basis of plans prepared by Cheap-A-Plans. These plans were subsequently granted a Construction Certificate by Peter J Boyce & Associates. These plans have required considerable attention and analysis during the course of these proceedings.
2. It is, perhaps, appropriate to observe, at this point, that interpretation of these plans has not been without considerable difficulty and argument during the course of the proceedings. These plans are sufficiently inadequate that, assessed properly at the time of the original development application, it would have been open to the Council to have rejected them and this, perhaps, should have been done.
3. However, the plans were accepted by the Council as providing a proper basis for the granting of the 2008 development consent and thus, as a consequence, there is a valid development consent based on and incorporating those plans that requires to be dealt with in these proceedings.
4. The 2008 development consent was granted to Mr Raymond Ross, the immediate predecessor in title to Ms Chami, the current owner of the property and who is the applicant in the proceedings.
5. The installation of a swimming pool at the eastern end of the dwelling at the level of the middle of the three habitable dwelling levels has been undertaken pursuant to a complying development certificate. Work on this approved swimming pool and an immediately adjacent spa (not subject to the swimming pool's complying development certificate but also not said to be part of this building certificate application) was not complete at the time of the site inspection.
6. The works that have been carried out on the site, in purported reliance on the 2008 development consent, embody significant departures from the approved plans and, in a number of respects relevant to these proceedings, remain incomplete in the form proposed by Mr Ross (either as the owner of the property or, for the reasons later discussed, as the guiding mind for the works continuing to be undertaken on behalf of the applicant in these proceedings).

The nature of the proceedings

1. The Environmental Planning and Assessment Act 1979 (the Act) establishes a regime, relevantly, that permits the regularisation of or protection from enforcement for works undertaken where those works are not in a form for which development approval has been granted through one of the aspects of the hierarchy of processes established by the Act.
2. Where development consent has been granted but the works were not in conformity with those approved, s 96 of the Act potentially provides (subject to the limitations in the provision) a path for retrospective approval (Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240).
3. An alternative, here pursued by the applicant, is to apply for a building certificate through the process contained amongst the various matters covered by Part 8 of the Act. In this instance, as discussed later, an earlier s 96 modification application (by Mr Ross - the former owner and now agent for the present owner) was discontinued and the applicant has now made a building certificate application. The refusal of that application provides the foundation of these proceedings.
4. It is to be noted, as well as this hierarchy of approval processes, a statutory instrument under the Act, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 also designates a wide range of very minor works as exempt and removes them from the need for the obtaining of consent through the statutory processes. The policy designates further types of development as "complying' and thus capable of approval through the issuing of a complying development certificate where such certificates may be issued by a private certifier. The scope of the policy and its potential relevance to this dwelling is discussed later.
5. In addition to these approval processes under the Act, the Act also provides a range of enforcement mechanisms for local councils to respond to works that are carried out where they are neither exempt nor subject to an appropriate approval for their execution. Coupled with this enforcement regime, the Act also provides a potential shielding process to protect, in appropriate circumstances, unapproved works from the enforcement mechanisms in the Act. This protective mechanism is effected through the ability of a council to issue, after assessment of the unapproved works and in appropriate circumstances, a building certificate that has the effect of shielding any unapproved works for a period of time. The details of the statutory framework for building certificates are set out in more detail later.
6. At this point, it is sufficient to note several matters with respect to the building certificate process. These are:

• First, if an application for a building certificate is refused (or deemed to be refused) by a council, a right of appeal against that refusal lies to this Court; and
• Second, importantly, appeal proceedings concerning a building certificate application are, in no way, punitive proceedings of any disciplinary nature for the carrying out of unapproved works.

1. With respect to this latter point, it is clear that any punitive function in the Court is to be undertaken by the Court exercising its jurisdiction in a different Class of proceedings (see Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 at [38] - referred to hereafter as Ireland No 2).
2. It is also clear that building certificate appeals, falling as they do in Class 1 of the Court's jurisdiction, are merit appeals and are subject to the procedural informality afforded to them by the provisions of the Land and Environment Court Act 1979 (the Court Act) as discussed in more detail later.

The building certificate application

1. An application by Ms Chami was lodged with the Council for a building certificate for the works as constructed. The form is dated 24 February 2014 and a copy is attached to the Class 1 appeal papers (Exhibit A). The only other document shown in Exhibit A as having been attached to the application is a survey report. A copy of the application form and survey report is reproduced as Appendix A. There is no evidence of any other documents being provided to the Council with the application. The Council's Statement of Facts and Contentions (Exhibit 1) sets out, on pages 4 and 5, court orders for (in proceedings 14/40044) or written requests by the Council for further information concerning the application. None was supplied prior to the Council's refusal of the application.
2. On 29 May 2014, the building certificate application was refused.
3. On 10 June 2014, this appeal was filed with the Court pursuant to s 149F(1) of the Act. Although Exhibit A describes the appeal as being against a deemed refusal, the application had, as noted, actually been refused prior to the filing of the appeal (but nothing arises from this).
4. On 14 October, I had the matter mentioned before me in order to deal with, amongst other things, my preliminary view as to the scope of the building certificate application that had been made to the Council and, therefore, as a consequence of the appeal, the scope of the matters to be dealt with during the course of the proceedings. That preliminary view was that the application founding these proceedings applies to the whole of the built form of the dwelling.
5. Although Mr Ross disputed this preliminary position, in the context of the documentation that had been provided coupled with the non-provision of any further detail (including any document that might otherwise have confined the building certificate application), I am satisfied that that which falls to be determined in these proceedings is a building certificate application with respect to the whole of the built form of the dwelling.

The role of Mr Ross

1. As has already been observed, Mr Ross was the applicant for and recipient of the 2008 development consent for proposed additions and alterations to the dwelling. He subsequently transferred ownership of the dwelling, apparently in early 2013, to the applicant (nothing, in these proceedings, turns on the timing of that sale).
2. Mr Ross has appeared in the proceedings before me representing the applicant. He has done so as her agent, pursuant to leave granted after consideration of documents sent to the Court by Mr Ross by e-mail on 12 August 2014 that were documents in satisfaction of s 63 of the Court Act and Part 7 rule 7.1 of the Land and Environment Court Rules 2007.
3. In his letter in satisfaction of rule 7.1, Mr Ross wrote, inter alia: (g) I have advised Ms Chami that I will not be charging her for my services on the basis that her interests and mine are aligned.
4. I interpolate that, at a pre-trial mention attended by Mr Ross, I had explained to Mr Ross that, contrary to his then intention, it was not possible to be an agent (thus acting as an advocate) and also act as an expert witness - as the obligations of each role were inherently and fundamentally incompatible. Mr Ross was asked to determine which role he would seek to perform and advise this at the commencement of the site inspection. At the commencement on site, Mr Ross indicated that he sought leave to appear as the applicant's agent and would not seek to give evidence. I granted that leave (there being no objection to this by the Council). I indicated that, under the circumstances, I would provide the appropriate procedural assistance as if Mr Ross were a self-represented litigant.
5. The only relevant distinction that I drew concerning Mr Ross's participation and the fashion in which the Court would ordinarily be expected to treat a self-represented litigant related to the potentiality for Mr Ross giving evidence in the applicant's case. I have, above, set out the circumstances under which Mr Ross elected to be the applicant's agent and act as advocate on her behalf rather than seeking to give expert evidence based on what he described at various times during the proceedings as is extensive engineering and/or building industry experience. As a consequence, although I did consider it appropriate to afford Mr Ross procedural assistance, under the circumstances was not appropriate to extend to him the liberty usually permitted to self-represented litigants of giving (lay) evidence in their own causes whilst also advocating that cause.
6. In the Council's Statement of Facts and Contentions (Exhibit 1), the Council describes the applicant's relationship with Mr Ross in the following terms (at 4(a) of the document): (a) The Applicant is and was at all relevant times the partner of Raymond Ross.
7. Finally, during the course of the hearing, I raised with Mr Ross on several occasions the extent of his instructions from the applicant and his authority to bind her on matters either general or specific (for examples - see transcript 20 August at p 4; 21 August at p 7; and19 November at p 73). He indicated he had the necessary authority.
8. I note that, although the Council's Contentions were the subject of vigorous contest by Mr Ross during the course of the proceedings and although the Statement of Facts and Contentions was tendered, the applicant did not file (and Mr Ross did not seek to tender) any Statement of Facts and Contentions in Reply disputing anything set out in the Council's Facts, generally or specifically, concerning the applicant's relationship with Mr Ross.
9. During the course of the site inspection (discussed later), Mr Ross made a number of observations that made it clear that he was ultimately responsible for the works that had been carried out at the site and would remain so for any future works whilst Ms Chami was the owner of the site.
10. Whatever the precise nature of the relationship between the applicant and Mr Ross, however, I am satisfied that it is reasonable to conclude that not only was Mr Ross the guiding mind for all the works carried out on the site up until the date of the transfer of ownership to the applicant, but that he also remains the guiding mind for any works undertaken since the date of the transfer (if there be any). Although these conclusions may not be of particular importance, I am satisfied that they demonstrate that Mr Ross' participation in the proceedings on behalf of the applicant is on a fully informed basis concerning the scope and nature of the works carried out on the site.

The outcomes initially sought by the Council

1. Early in the proceedings, a document entitled One Page Summary of Part B Contentions filed 28th July 2014 was tendered for the Council and became Exhibit D. The third element of this document listed seven items under the heading Measures sought by respondent before approval is recommended. Those measures were: 1. Complete removal of all awnings front (West and North) and rear East (reduced to 300 mm) 2. Bricking up of backyard access door between the undercroft area and the main dwelling 3. Reducing side gate from 1500 to 1200 mm 4. Replacement of lightweight construction material with masonry for infill panels below windows on 2nd floor 5. Demolition of the existing ground floor Main entrance and replacement with a 1st floor main entrance including provision of approximately 1.63m wide and 3.5m high masonry stairs including handrails and landings 6. Privacy screens to front corner south west facing windows and across approved 1st floor balcony 7. Demolition of 2nd Floor south face brick balustrade and replacement approved south balcony with open roof space

The site inspection

1. On the first day of the hearing, a site inspection was undertaken. This took place in the company of the parties' representatives and those advising and/or instructing them. At the commencement of the site inspection, I indicated that there were matters concerning evidence proposed to be tendered in the proceedings about which I had concerns. As a consequence, I indicated that the site inspection would be carried out on the basis that, if matters discussed encompassed proposed witnesses and/or proposed evidentiary propositions that were subsequently excluded, I would disregard anything said by or concerning, relevantly, those persons or things.
2. At a pre-trial telephone mention, I had indicated to Mr Griffiths, the solicitor then appearing for the Council, that I considered it desirable that the Council provide three copies of the 2008 development consent plans, in A3 size, to enable a marking up of those areas that had been constructed and which could be observed to differ from those plans when compared to that which had originally been approved in 2008. These copies were provided (one for me, one for Mr Eastman, counsel for the Council, and one for Mr Ross) at the commencement of the site inspection.
3. Mr K Nash, consultant town planner for the Council, sought permission to be able to take photographs during the course of the site inspection. Mr Ross agreed to this, subject to the restrictions that:

• Mr Nash indicated when he proposed to take a photograph;
• Any photographs were not to include any people, including participants in the site inspection or residents at the site; and
• Any photographs taken in the interior of the building were not to include personal effects of the occupants.

1. The Council accepted these conditions. With the exception of one photograph that inadvertently included a reflected image of one participant in the site inspection (and which was excluded when included in a group of photographs sought to be tendered), compliant photographs were later admitted as evidence.

The marking of plans during the site inspection

1. During the course of the site inspection, at each location where a departure from the 2008 development consent plans was observed, we stopped to inspect the departure and I marked, either by lines or words or both, a notation on my set of plans concerning that departure. For a number (but not all) of these departures, Mr Nash photographed that element of the structure.
2. I indicated to the parties that I would provide each of them with a photocopy of the set of plans that contained my annotations (as I intended to use those marked plans as an aide-memoire unless either party sought to tender the copy that I provided to them). Neither Mr Eastman nor Mr Ross raised any objection during the course of the site inspection to the notation process taking place as I had proposed.
3. When we returned to Court after the completion of the site inspection, I provided Mr Eastman and Mr Ross with an A3 colour photocopy of the 2008 plans marked with my annotations. Mr Eastman subsequently tendered a set of these annotated plans, without objection from Mr Ross, and they became Exhibit 3.

The matters identified from the first site inspection

1. I have set out above the process that was undertaken during the course of the first site inspection to annotate a set of plans with those matters that were observed, during the site inspection, as being departures from matters depicted on the 2008 development consent plans.
2. During the course of the proceedings that followed, Mr Eastman produced a number of documents that contained lists of what the Council identified as departures from the approved 2008 development consent plans. These documents, which underwent considerable evolution during the course of the proceedings, were marked for identification and used for the purposes of identifying a number of matters that arose during the course of subsequent evidence.
3. The final version of the list was divided into two distinct sections. The first was a list of those matters with respect to which the Council indicated that it did not object to the granting of the building certificate for those works and that the Council did not request that I require anything additional to or modification of those elements prior to them being incorporated in a building certificate. That list was tendered and became Exhibit 8. A copy of that list is reproduced as Appendix B.
4. It is possible that some matters appearing on that list fall within the scope of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as being exempt development for which no consent is required.
5. Other elements might fall within the scope of the complying development provisions of the policy and be able to be dealt with by an accredited certifier (including a private certifier).
6. Finally, some further elements might not fall within the scope of the complying development provisions of the policy as a consequence of the application of exclusionary provisions in the policy. This is discussed later.
7. However, it is unnecessary, in my view, for me to undertake a detailed examination of each of the identified departures in order to classify whether or not they require development consent.
8. I have earlier noted the nature of the application lodged with the Council. I have set out my view, on a proper interpretation of that document, that the application should be regarded as seeking a building certificate for the whole of the dwelling on the site.
9. As the granting of a building certificate embodies a process that is beneficial and protective for an applicant and any successor in title, I propose to require the Council, should a building certificate result from the completion of the second stage of the process in these proceedings, to incorporate all of these uncontroversial elements in a draft certificate without the necessity for an item by item enquiry as to whether the protection afforded by the certificate strictly requires to be given to each of them. Mr Ross indicate his agreement with this course of action (Transcript 18 August - page 17, lines 10 to 20). Despite subsequent statements by Mr Ross that, at various times, sought to modify or resile from this position, I have proceeded on the basis that this is the proper course to follow.
10. The second part of the list prepared by the Council encompassed, for the most part, matters that the Council considered fell within the scope of the 2008 development consent plans but where that which had been constructed was not in accordance with those plans and where the Council considered that, prior to any contemplation by me granting a building certificate, supplementary or remedial works were required to the listed element.
11. An additional portion of this list related to matters which the Council considered required development consent and for which development consent had not been granted and which also fell outside the scope of the plans submitted to and underpinning the granting of the 2008 development consent. This second list became Exhibit 11. It is reproduced at Appendix C.
12. With respect to the matters contained on this list, two observations warrant being made. The first is that, with respect to the matters that are clearly not within any possible construction of the scope of the 2008 development consent (these being set out in the separate section on the final page of Exhibit 11), I do not propose to deal with those matters by treating them as being within the scope of these proceedings. The approach to be taken to Item 99 in Exhibit 11 (the lift well) is subject to separate later discussion. With respect to matters where the Council says a building certificate is potentially able to being required, it is appropriate to deal with them on an item by item basis and I have proceeded to do so in this decision.
13. A copy of page 4 of the plans marked up during the site inspection (Exhibit 3) is reproduced (in small scale) below to provide an understanding of the process that was undertaken. The page chosen (the plan for the uppermost level) has been selected as this level figures prominently in matters requiring determination (and, later, other versions of the plan for this level will be reproduced).
14. The Council originally produced a single, composite list derived from Exhibit 3. It was marked for identification and initially used only as an aide-memoire. This list reflected the totality of the matters observed during the course of the site inspection in August where it was revealed that the various elements on the list did not reflect that which was depicted on the 2008 development consent plans. Exhibits 4 and 11 evolved from this list.

The litigation history involving the site

1. There have been a number of separate proceedings involving the site that have had the Council as either the applicant or the respondent in those proceedings with the opposing party being Mr Ross. Except to the extent that the proceedings before Dixon C are engaged, specifically, in various evidentiary elements invoked in these proceedings (discussed elsewhere), these other proceedings have no bearing on the matters that I am required to consider. A number of decisions have been given (both in this Court and in the Court of Appeal) that provide broad context only for these proceedings but do not bear, in any way, on the outcome of these proceedings. It is not necessary to provide a full list of those decisions for any contextual reason in this decision. Specific decisions will be noted as relevant.
2. In addition, as noted above, relevant in the particular evidentiary contexts later discussed, is the decision of Dixon C dealing with an application by Mr Ross (in his then capacity as the owner of the site) made pursuant to s 96 of the Act to modify the development consent that had been given to him in 2008 for additions and alterations to the existing dwelling on the site (Ross v Lane Cove Council [2012] NSWLEC 1364).

Approaches to building certificate applications

1. Depending on the circumstances that exist as the backdrop to a building certificate application, there are at least three different paths for the Court to consider following in determining any appeal against the refusal or deemed refusal of a building certificate application. The three options of which I am aware (although there may be others) are set out below.

• First, when the works are unapproved and there is no approved use to which the works could be dedicated, the appropriate course for the Court to follow is to deal with the question of the structural adequacy and building code compliance of the works and then to consider any separate development application for approval to use the works for a particular purpose. This is the approach that was taken by Bignold J in Ireland No 2;
• Second, when the works are unapproved additions and/or alterations to approved works and there is, expressly or necessarily implicit in the approval for the approved works, an existing approval for use for a particular purpose attached to that approval and, if the unauthorised works are regularised, approval is sought for a different use, the appropriate process is to consider the structural adequacy and building code compliance of the unapproved works before considering whether it is appropriate to approve the change of use if the unapproved works were to be regularised. This process also necessitates two separate applications, one for a building certificate to regularise the unauthorised works with a second application being necessary for approval for the change of use. These are the circumstances I addressed in Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126.
• Third, and more complex, however, are the circumstances that arise in these proceedings - namely where there is an existing approved use (as a residence), significant departures from the current development consent for additions and alterations to the existing residence but, if a building certificate were to be granted, no separate application to establish or change a use is required as the pre-existing residential use is proposed to be maintained.

1. In these latter circumstances, there is no separate assessment analysis engaged through a second application and thus the appropriateness or otherwise of regularising the unauthorised works, in terms of undertaking any form of broad town planning merit assessment of their impacts (if any) is necessarily conflated into and forms part of the building certificate application determination process.
2. Mr Ross, in his supplementary submissions in reply on behalf of the applicant said, with regard to the process to be undertaken in such an appeal (at page 2 of his emailed letter to me of 10 November appended to those submissions and reproduced exactly as in the original including Mr Ross's notations of his added emphasis): There is no lengthy "merit assessment" of the structure required by section 149D of the EPA Act (emphasis added). All that section requires is an enquiry as to whether there is an entitlement to take action (of the kind set out in S 149(1) (a)) and whether there is an actual intention ("the proposal") to take any action. Where there is no such entitlement or no such proposal the section otherwise imposes a mandatory duty on Council to issue a Building Certificate (emphasis added): Mineral Wealth Pty Ltd v Gosford CC (2003) 127 LGERA 74 etc The Council is not entitled to take any action in respect to the largely untouched existing building which forms the bulk of the structure.
3. The conducting of a notional development assessment is consistent with the approach adopted by Bignold J in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276. Contrary to Mr Ross's submissions, the appropriateness of this approach was not the subject of disagreement by Pain J in Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74 as a proper reading of her Honour's judgment at (43) makes clear her Honour was distinguishing between notional development application assessments and the instance with which she was dealing - namely an actual development application.
4. The Court is sufficiently empowered to adopt a merit assessment process in such third circumstances (circumstances applicable in these proceedings), in my opinion, as a consequence of the discretionary scope given to the Court by s 149F(3)(a) and (c) of the Act, a discretionary range that is wider, in my view, than the more limited role of standing in the shoes of the original determining body that is provided for in s 39(2) of the Court Act (see Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 at (58) - referred to hereafter Ireland No 1). The powers of the Court are not only wider than those of the Council, but, contrary to Mr Ross's submission above, the Act does not mandate the Court as to outcomes in such proceedings.
5. It is for this reason that considerable portion of the hearing days occupied by this matter were taken up by cross examination of Mr Nash by Mr Ross.

The planning controls

1. The relevant local planning context is provided by the Lane Cove Environmental Plan 2009 (the LEP) and the Lane Cove Development Control Plan 2009 (the DCP). The original development application, having been lodged and determined prior to the coming into effect of the LEP and the DCP, was the subject to the planning regime that had previously applied, namely the Lane Cove Local Environmental Plan 1988 (the 1988 LEP) and the Lane Cove Development Control Plan 1988 (the 1988 DCP). The date of issuing of the 2008 development consent was 2 April 2008 with the assessing and determining the application being against the provisions of the 1988 LEP.
2. Although the 1988 documents provided the planning context that gave rise to the approval of the application for additions and alterations to the then existing dwelling on the site, its provisions give no assistance in the present proceedings as the DCP controls that are relevant for my consideration are those that are currently applicable. It matters not, in my view, whether that applicability arises as a consequence of those controls being the relevant controls as at the date of the application for the building certificate or because they were the relevant controls as at the date the various non-compliant elements that have been built were actually constructed or because they apply at the time I come to deal with this appeal (the latter being, in my view, the correct position).
3. The site is now zoned residential pursuant to the LEP. Zoning consistent with the present zoning applied under the 1988 LEP that operated when the development application was made in 2007 that resulted in the granting of the 2008 development consent.
4. Relevant controls relate to the maximum permitted floor space ratio and the maximum height control.
5. In these proceedings, there were two factual issues in dispute concerning these controls. The first was whether or not that which has been constructed exceeds the permitted floor space ratio whilst the second was whether that which has been constructed exceeds the maximum permissible height. Each of these is discussed in separate subsequent sections of this decision.
6. Other, relevant more fine-grained controls are contained in the DCP. It is these current controls that fall to be considered in my assessment of what has actually been built.
7. There are two particular aspects that are raised by the Council as requiring consideration in these proceedings. They relate to bulk and scale issues of the presentation of the built form of the dwelling as constructed in its streetscape context and, second, issues of amenity impact on the dwelling immediately to the south at 6 Bayview Street. Each of these aspects is also discussed in a subsequent separate section.

Exempt and complying development

1. On several occasions during the course of the proceedings, Mr Ross indicated that some elements of that which had been constructed work, in his opinion, exempt or complying development and thus amenable to benefit from the facultative provisions of the State Environmental Planning Policy (Exempt and Complying Development) 2008. Mr Ross made it clear that he advanced the view on behalf of the applicant that the provisions of this policy meant that some elements of that which had been built did not require any consent whilst other elements were capable of approval by a private certifier as they were complying development as set out in one of the elements of Part 3 of the policy.
2. In light of the approach that I have taken to dealing with the areas where the Council raises no concern about the departures from the 2008 development consent plans, it is unnecessary for me to express a concluded view on this point as I am taking an expansive attitude on including those matters for which a building certificate will be required once I am satisfied that that which is set out in Schedule 1 has been completed.

General evidentiary issues

1. The Council filed and served two documents that it proposed to rely on as statements of evidence in the proceedings. They were a statement of evidence from Mr Nash and a document that purported to be a statement of evidence jointly authored by two engineers employed by the engineering consultancy retained by the Council. This latter document purported to be a statement of evidence dealing with structural engineering issues. The applicant filed and served statements of evidence from two architects, Mr Michalandos and Mr Sweeney. All aspects of the proposed evidence required procedural consideration before the documentary evidence, such as it resulted, could be accepted as exhibits.
2. It is convenient to deal with each of these four intended evidentiary documents in turn.
3. With respect to the proposed statement of evidence from Mr Nash, I expressed my concern to Mr Eastman about two aspects of the document. First, at some seven separate points in the document, Mr Nash expressed the opinion that the application for a building certificate should be refused. I indicated to Mr Eastman that I did not consider it appropriate for Mr Nash to be expressing that opinion as that final matter was the matter that required determination by the Court. In response to those concerns, Mr Eastman did not seek to tender any of those seven statements and they were struck through in the document. Second, one comment by Mr Nash constituted the expression of a legal (not a planning) opinion and this comment was also struck out. On that amended basis, Mr Nash's statement of evidence became Exhibit 4.
4. With respect to the hybrid engineering document with joint authorship (a document written, for the most part, in the first person plural but with at least one instance of the first person singular incorporated within it), Mr Eastman was granted leave to call Mr Leedow, one of the authors of the joint document, to give evidence of its provenance. In essence, his evidence was that the document had, in its original form, been drafted by a colleague who had had earlier involvement with the site, but the document had been reviewed and reworked by Mr Leedow. As I considered I would not be able to be certain whose opinions were those expressed by which author if the document were to be admitted, I rejected the tender of this document.
5. However, as later set out, a statement by Mr Leedow alone was admitted and became Exhibit 10.
6. With respect to the two statements of evidence proposed to be tendered on behalf of the applicant, Mr Eastman objected to the tender of both of them, cumulatively, on the basis that the documents were from experts from the same discipline (architecture) and substantially traversed the same areas within that area of expertise. In response to the objection, I considered that one element of overlap between the statements of evidence existed, that concerning the awnings that had been constructed outside the scope of the development consent and I struck out that section of the statement of evidence of Mr Michalandos. Mr Michalandos' statement of evidence became Exhibit C and that of Mr Sweeney became Exhibit B. Mr Sweeney, I observe in passing, had accompanied us during the course of the site inspection.

The applicant's town planning material

1. I have earlier briefly noted there has been an extensive litigation history involving the Council, on one hand, and Mr Ross and/or the applicant, on the other hand, concerning the works being undertaken by Mr Ross to the dwelling now owned by the applicant. One of those other proceedings was the modification application made by Mr Ross pursuant to s 96 of the Act. The modification application proceedings were conducted before Dixon C. These modification application proceedings provided material for a deal of the cross-examination of Mr Nash. This arose in unusual circumstances during the first phase of the hearings, circumstances now appropriate to note.
2. In the modification application proceedings, Mr Ross had retained a consultant town planner, Mr Turrisi. Mr Nash had then, as now, been retained by the Council to provide expert town planning evidence. Mr Turrisi and Mr Nash each provided an expert report in the earlier proceedings and, after a joint expert conference, produced a written joint expert report. Use in these proceedings of Mr Turrisi's statement and the joint expert report from the modification application proceedings is discussed in more detail below.
3. At the commencement of the hearings in these proceedings, Mr Ross foreshadowed his desire to tender Mr Turrisi's statement and the joint expert report from the modification application proceedings to become evidence in these proceedings.
4. That course was opposed by Mr Eastman and, after foreshadowing the reason why this objection was made and the evidence that would be available in support of the objection, an affidavit of Mr Eastman's then instructing solicitor, Mr Griffiths, was provided later that day and read over the objection of Mr Ross. In that affidavit, Mr Griffiths deposed the terms of a conversation that he had had with Mr Turrisi during the course of which Mr Turrisi had said, amongst other things, as follows (in response to Mr Griffiths' question "Are you engaged in the matter?"): No. Mr Ross approached me about a month ago. He showed me the Contentions. I declined to act in the matter.
5. It was on the basis that Mr Turrisi had declined to take part in these proceedings that Mr Eastman objected to any tender of Mr Turrisi' statement of evidence and the joint expert report from the modification application proceedings.
6. Because I had earlier indicated to Mr Ross that, although he was appearing as the agent for the applicant, I proposed to treat him as if he were a self-represented litigant, I indicated to Mr Ross that, if he were to seek leave to issue a short service subpoena on Mr Turrisi to attend and give evidence, I would grant leave for that purpose. Mr Ross sought that leave and, without demur from Mr Eastman, leave was granted on Friday 15 August on the basis that any such subpoena would have to be served, personally, on Mr Turrisi no later than 5 pm on Monday 18 August with the return date and place being 10 am before me on Wednesday 20 August.
7. At the time for return of the subpoena, setting aside the strict procedural requirements for Mr Ross to call on the subpoena (and without demur from Mr Eastman), I had the court officer call Mr Turrisi three times outside the Court as there had been no attendance by him in the Court. There was no response to those calls by the court officer. Although there was no affidavit of service proposed to be read by Mr Ross, the transcript (Transcript 20 August page 1 line 44 to page 3 line 6) records the following exchange taking place concerning the subpoena issued to Mr Turrisi: SENIOR COMMISSIONER: I also infer, unless he is outside, that Mr Torrisi either has not been served with the subpoena or has been served with the subpoena and he'd decided not to answer it. Have you served him, Mr Ross? ROSS: Yes, Senior Commissioner. I have served him. I have spoken to him. I have served him by email. It's been served in the first person as well, and yes, it has been served. SENIOR COMMISSIONER: Do you have any indication from him as to whether he proposes to answer the subpoena? ROSS: He hasn't responded. EASTMAN: Ms Schofield is just leaving the courtroom just to check if there's anyone on the floor waiting. SENIOR COMMISSIONER: I need to, depending on what Ms Schofield says when she comes back, I suppose - EASTMAN: She shakes her head to indicate there's no-one outside. SENIOR COMMISSIONER: Rather than going through the formal process at this time of inviting Mr Ross to fall on the subpoena, unless you have any objections I just propose to ask Mr Ross some questions about manner and timing of service. EASTMAN: I have no objection to that course. I think it's good that it comes out. SENIOR COMMISSIONER: Mr Ross, when was the subpoena personally served on Mr Torrisi? ROSS: At around 11 am on Monday. SENIOR COMMISSIONER: By whom was it served? ROSS: By Ms Chami in person. Prior to that it was also served on Friday just prior to me having a discussion with Mr Torrisi. SENIOR COMMISSIONER: When you say served on Friday, you mean electronically provided to him, do you? ROSS: Yes. SENIOR COMMISSIONER: It might be necessary for there to be proof of personal service. You are saying to me, as I understand it, that if it were necessary to do so, Ms Chami would provide an affidavit that she personally served the document, where and under what circumstances. ROSS: Precisely. SENIOR COMMISSIONER: Let's get you to sit forward again so we can record what is being said. I suppose, Mr Eastman, without necessarily requiring Mr Ross to go through the form of words which you would anticipate would be necessary for the calling on of the subpoena, it's sufficient that - you will accept that I ask Mr Ross if he wants the subpoena called and then have the court officer go outside and call Mr Torrisi. EASTMAN: Yes, I accept that being a prudent course. SENIOR COMMISSIONER: Would the court officer call Mr Torrisi three times please. SPEAKER: No appearance, Senior Commissioner.
8. As a consequence, consistent with my obligation to provide procedural assistance to Mr Ross (but not to do so in a fashion that provided assistance with the merits of the applicant's case), I indicated to Mr Ross that, at an appropriate time, I would permit him to question Mr Nash about matters contained in the joint report (and about matters contained in the transcript of the modification application proceedings) and permit him to revisit the question of tendering of modification application proceedings related documents at that time.
9. Near the conclusion of the first phase of the hearings, Mr Ross again sought to tender Mr Turrisi's statement of evidence and the joint report of Mr Turrisi and Mr Nash arising from the earlier modification application proceedings. Mr Eastman objected to their tender save to the extent that they were required for the purposes of understanding Mr Nash's response to the matters that were contained in them. Mr Ross pressed the tender of the documents being admitted for all purposes including as evidence of the opinions expressed by Mr Turrisi in them.
10. At this point it is appropriate to note the provisions of s 38(2) of the Court Act, a provision here applicable. It is in the following terms: In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
11. The freedom from the constraints of the rules of evidence is expressed by the statute to be broad and generally unconstrained (although subject to the requirements to afford procedural fairness and natural justice). As a consequence, in proceedings of this type, the provisions of the Evidence Act 1995 concerning expert evidence do not apply (although I have heeded the decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 in my consideration of such evidence).
12. As, at that time, Mr Turrisi had not attended to give evidence and was thus not able to be tested on relevant matters, I held, at that time, that it was appropriate to restrict the evidentiary use of those documents in the fashion sought by Mr Eastman.

The role of Dixon C's proceedings

1. In late 2012, Dixon C heard the appeal made by Mr Ross (as the then owner of the site). Those proceedings involved an appeal against the refusal by the Council to grant a modification application for variation to the 2008 development consent. The modification application was made pursuant to s 96 of the Act and was, in part, designed to legitimise what had already been constructed (involving a number of departures from the 2008 development consent plans) and, also in part, to grant prospective consent for other variations to the 2008 development consent plans proposed to be undertaken by Mr Ross.
2. The Commissioner heard the matter and made a number of findings of fact concerning the merits of the proposal and a finding concerning her jurisdiction to grant the modification application (Ross v Lane Cove Council [2012] NSWLEC 1364).
3. This latter point arose as, during the course of the proceedings, the Council submitted that, on a proper understanding of the proposed modification plans, that for which Mr Ross sought consent would result in a development not substantially the same as that for which the original consent had been granted in 2008. This arose as s 96(2)(a) of the Act requires that the consent authority be "satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted" (the "substantially the same" test). This test must be satisfied before modified proposals can be approved.
4. The Commissioner applied the reasoning process set out by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 and concluded that, with the awnings proposed on the modification plans and already built (the awnings that are one of the aspects requiring to be dealt with in these proceedings), the proposed modification plans would not result in a development substantially the same as that for which the 2008 development consent had been given.
5. The Commissioner indicated, as I understand her published reasoning (the entirety of the transcript before her not being in evidence in these proceedings - limited portions only having been admitted in evidence as Exhibits T and U - as discussed in the next section) that she was prepared to grant a modified development consent provided the awnings were removed from the scope of that consent. She adjourned the proceedings to permit the preparation of amended modification plans that would delete the awnings from the scope of the modification being sought.
6. Such a course would have permitted a subsequent building certificate application to be made by Mr Ross to regularise the awnings through the protective regime of such a certificate.
7. Instead of pursuing that course, Mr Ross discontinued those proceedings and, after the effluxion of time, these proceedings for a more expansive building certificate now require to be determined.
8. It is in this context that it is necessary to consider what weight it may be appropriate to give to conclusions reached by Dixon C in those proceedings as part of the determinations that I need to make in these proceedings.
9. The submission made by Mr Ross in these proceedings with respect to factual merit determinations made by Dixon C is, in effect, that I am bound by those determinations (at least as I understand his position). In effect, he advocates the proposition that the matters dealt with by Dixon C concerning which she made specific determinations are, in effect, res judicata, and I am not able to revisit them. At paragraph 25 of his written closing submissions, Mr Ross said: 25. Although one member of the court cannot bind another member of the court to a conclusion on any given site and set of facts. It is clear this only applies to adverse conclusions restricting the discretion of the following member. A consent or evinced consent by the relevant consent authority/earlier member of the court on the same site and the same set of facts raises a res judicata argument if that consent or evinced consent is sought to be challenged, overturned or modified by more onerous conditions.
10. There are two proper responses to be made to this submission. The first arises where differences in the matters to be assessed come from a comparison of the factual position before Dixon C when compared to the factual position engaged by these proceedings. The second arises if there were to be no such differences.
11. I turn, first, to the position that arises where there are differences in the matters to be assessed arising from a comparison of the factual position before Dixon C and that arising in these proceedings.
12. In the fourth edition of Spencer Bower, Turner and Handley The Doctrine of Res Judicata, the learned authors discuss, at p 255, the question of whether or not estoppel issues can arise if there have been changes in the relevant position engaged in the earlier proceedings. Under the heading Changing Situation, the following statement appears at the commencement of this section: 17.30 There can be no effective res judicata in a changing situation.
13. The text on the same page subsequently extracts relevant portions of the speech by Lord Bridge in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 at 290 as follows: "…………… a decision to withhold planning permission resolves no issue of legal right … It is no more than a decision that in existing circumstances and in the light of existing planning policies the development … is not one which it would be appropriate to permit … such a decision cannot give rise to an estoppel per rem judicatam."
14. Precisely the same considerations here arise - to the extent circumstances may have changed, my determination must be made in light of the circumstances now applying. Those circumstances include the state of the construction now when compared to that in existence at the time of Dixon C's decision.
15. I reject the proposition that any res judicata principle acts as an estoppel to prevent me reaching some alternative conclusion to Dixon C if I consider that such an outcome is now appropriate in the facts and circumstances of the changed development as I now find it.
16. It is clear that this is the only logical position to be adopted, in my view, given the state of the development as it was at that time of the inspection of the proceedings before Dixon C and the significantly more substantially completed nature of the development at the time of the first inspection by me over one and a half years later.
17. I reproduce below a photograph that is in evidence (Exhibit 14 photo 19) which was taken by Mr Nash at the time of the proceedings before Dixon C and a subsequent, contemporary photograph (Exhibit 12 photo 32) - effectively from the a similar angle and perspective (and certainly of the same aspect of the building), showing the significantly different nature of the structure as it has evolved over the intervening time.
18. Far less of the structure of the uppermost level appears to have been erected above the uppermost slab at the time of the 2012 inspection whilst, with the exception of limited elements of the internal finishes (some of which are controversial in these proceedings), the entirety of the building structure has effectively now been completed. The changes are substantial and the position dealt with in the text earlier quoted is clearly engaged with respect to those matters where it is self-evident that substantive change has taken place between Dixon C dealing with the site and me needing to do so.
19. As a consequence, the context of my consideration of some of the issues (at least) takes place through an entirely different conceptual lens when compared to that dealt with at the end of 2012.
20. In addition, also to some extent, the evidence from the 2012 proceedings that became evidence in these proceedings (Mr Turrisi's town planning evidence on behalf of the applicant [Exhibit M] and the joint statement of Mr Turrisi and Mr Nash [Exhibit K]) has, potentially at least, much less weight with respect to any aspects of the development that were, themselves, incomplete or are aspects of the development where other incomplete elements might not (or did not) provide a proper setting to enable proper assessment of what has become the resultant final form of those elements.
21. Where relevant, this is discussed in the context of the specific aspect of the structure for which a building certificate is now sought.
22. Where there is no substantive factual difference, I am able to disagree (should I do so) with any conclusion expressed by Dixon C provided I clearly articulate my reasons for doing so (although the statutory foundations for the two proceedings differ, I am of the opinion that the position dealt with by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 applies in such circumstances).

The s 96 modification proceedings transcript

1. It was obvious to me from the outset that Mr Ross proposed to rely (if permitted to do so) on at least some of what had occurred during the s 96 modification application proceedings heard by Dixon C. As the Commissioner had obtained a copy of the transcript of those proceedings for her decision-making process, I concluded that it was appropriate for the purposes of these proceedings that the parties have access to that transcript. As a consequence, I provided the parties with a photocopy of the transcript of each of the days of the December 2012 hearing.
2. Mr Ross sought to tender the transcripts of 18 and 19 December 2012, they being the two hearing days before Dixon C occupied by the modification application hearings. Mr Eastman objected to the tender of these transcripts on the basis that Mr Nash had only been cross-examined on extremely limited extracts of his evidence recorded in those transcripts. Mr Ross indicated that he only sought to rely on those matters in the transcript to which he had taken Mr Nash in cross-examination and, as a result, Mr Eastman withdrew his objection to the tender of those elements. To enable Mr Ross to identify with precision those extracts he was seeking to tender, that tender was deferred until a later stage in the proceedings.
3. The relevant extracts were subsequently tendered, without objection, and became Exhibits U (transcript of 18 December 2012) and T (transcript of 19 December 2012).

Mr Turrisi giving evidence

1. I have earlier set out the process by which Mr Ross was granted initial leave to issue a subpoena to Mr Turrisi to attend and give evidence - with this not resulting in his attendance (for whatever reason). Mr Ross subsequently sought leave to issue further subpoenas to Mr Turrisi (to give evidence and to produce documents).
2. Leave was granted to him to do so with different return dates set for each of these activities. The return date for the production of documents was set to be before the Acting Registrar on the day prior to the commencement of the third tranche of the proceedings whilst the subpoena to attend and give evidence was set to be returnable before me on site at the commencement of the second site inspection.
3. Although there was, apparently, some confusion that arose as to the timing of the return of the subpoenas and whether there was to have been a combined subpoena or two separate subpoenas, Mr Turrisi did turn up, in court, after the completion of the second site inspection. He produced a small bundle of documents (some of which were subsequently tendered) and gave oral evidence.
4. He gave his oral evidence, in my view, in a frank and constructive fashion and it was not necessary to provide any additional procedural levers to Mr Ross for the eliciting of Mr Turrisi's evidence.

The basis for reaching my decisions

1. The position that I have consistently adopted concerning my decision-making processes in merit appeals has always been to apply the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as to the degree of comfortable satisfaction that I should have with respect to the consequences of any decision that I was contemplating making. A recent decision of the full Court of the Federal Court (Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93) has discussed the relevance of Briginshaw in the context of administrative decision making by appellate bodies when that body is not bound by the rules of evidence. I have carefully considered whether the Federal Court's decision, in any way, should impact on my decision-making process in these proceedings and I am satisfied that it does not. As part of my consideration of the proportionality issue, I remain satisfied that it is appropriate to have regard to the consequences of any option potentially available to me to be determined as an appropriate outcome with respect to any issue in dispute.
2. A similar proposition applies, I am satisfied, to my consideration of the accumulated outcome of the various individual decisions that I might reach in these proceedings.

The length of the hearing

1. When, after a decision in the Court of Appeal (Ross v Lane Cove Council [2014] NSWCA 50), various matters were remitted to Pepper J, she concluded that the objects of s 56 of the Civil Procedure Act 2005 (for the just, quick and cheap resolution of the issues genuinely in dispute between the parties) would best be served by an expedited hearing and determination of the building certificate application made by Ms Chami (with further consideration of the civil enforcement proceedings in Class 4 of the Court's jurisdiction to await the outcome of these buildings certificate proceedings). Three days were therefore allocated as an appropriate amount of time to allow for the conduct of those proceedings and the Acting Registrar arranged an early listing on this basis.
2. The estimate proved to be wildly optimistic with the proceedings, as they unfolded, requiring a total of twelve full or part hearing days with, even then, the need arising to permit Mr Ross the opportunity to make supplementary written submissions in reply after the close of oral submissions on the final hearing day.
3. Some of this time was necessarily expended in dealing with procedural matters but the significant bulk of the evidentiary element of the proceedings arose from Mr Ross's cross-examination of Mr Nash, the Council's consultant planner. This cross-examination took place over eight full or part days.
4. My point in recording this fact is not, in any way, to be critical of the outcomes that Mr Ross pursued with his cross-examination. Although, as would be expected of such a lengthy cross-examination by a lay advocate, there was the occasional gratuitous, infelicitous and inappropriate use of language and unnecessary repetition, nonetheless Mr Ross made a deal of headway in the applicant's case by obtaining concessions by Mr Nash on several matters of some importance requiring my consideration of the issues. On one major matter, FSR compliance, Mr Nash conceded he had made a significant error in his calculations - a matter discussed later.
5. Had it been otherwise, I would have been obliged to consider whether or not this cross-examination process should have been curtailed considerably earlier than its finish.

Mr Ross's general attack on Mr Nash's credibility

1. Mr Ross attacked the reliability of Mr Nash's evidence many times during the course of the proceedings and in his written submissions. As noted above, on one major matter, Mr Nash was forced by Mr Ross's cross-examination to concede significant error in Mr Nash's calculations concerning the floor area of the uppermost level. However, Mr Ross, in various submissions and comments both during the course of the proceedings and in his written closing submissions made general attacks on Mr Nash's evidence and the put the proposition that Mr Nash's evidence was unreliable in its entirety. For convenience, I only set out the element of Mr Ross's written closing submissions on this point (this being thematically consistent with the overall thrust of his submissions and comments on this point). At paragraphs 21 to 23, Mr Ross's written closing submissions read: 21. Counsel's expert's qualitative, subjective evidence has also been shown to be consequentially tainted, unreliable or even incompetent to the point the experts evidence cannot be relied upon to any extent whatsoever. Despite Mr. Eastman coming to Mr. Nash's aid and suggesting that he had directed him to put certain (we say) misleading information into his report seemingly to explain irregularities in his evidence. None the less Mr. Nash's eventual contentions were shown to be simply wrong. 22. Mr. Nash's evidence and eventual concessions in cross examination must be viewed in the light of the fact that he has given the same erroneous evidence in the earlier section 97AA evaluation process conducted in this court. Shown to be in error in those proceeding (s) yet repeated in these proceedings. It has therefore been incumbent on the applicant it seems to demonstrate that he (Counsel's expert) is still (emphasis added) wrong .Thus the manner in which these proceeding is being conducted with respect to the applicant is "guilty until proven innocent" or worse a 'double jeopardy' situation where having been proven innocent is again required to prove innocence "without a shred of new evidence being put forward by the accuser." 23. The manner in which the Council's expert has dealt with this material we say is at best incompetent at worst criminally duplicitous on the basis of knowingly attempting to disguise and repeat (emphasis added) a known or ought to be known falsehood(S) for instance FSR, overshadowing, privacy, heights etc.
2. Although it will, later, be necessary to deal extensively with various aspects of Mr Nash's evidence, this is the appropriate point to address Mr Ross's broad submission that Mr Nash's evidence was so inaccurate and/or incompetent that it should be rejected.
3. I do not intend to do as Mr Ross proposes I should.
4. Whilst it is correct that, on several matters involving spatial calculations or relationships (such as with respect to floor space of the uppermost level-discussed more detail later-or overshadowing impact on 6 Bayview Street), Mr Ross obtained significant concessions from Mr Nash that assisted the applicant's case, I do not consider that the extraction of these concessions infected the totality of his evidence in the fashion suggested by Mr Ross.
5. As I have earlier observed, Mr Nash was in the witness box for eight full or part days and was under cross-examination by Mr Ross during a considerable portion of that time. Mr Ross's cross-examination style, not unsurprisingly for a lay advocate without extensive courtroom experience in such forensic processes, was aggressive and, at times, couched in inappropriate and offensive terms directed to Mr Nash. Although it was obvious to me observing Mr Nash that, from time to time, he bristled in response, my observation of him was that, throughout his evidence, he gave his evidence dispassionately and in a fashion entirely consistent with observing the requirements of the expert witness code of conduct.
6. At no time did I consider that he appeared to adopt any advocacy role on behalf the Council's vision. Indeed, on one significant matter, that of whether or not the lowest habitable level in the dwelling would remain potentially capable of being established as a separate occupancy, Mr Nash's responses to questions from me concerning the form in which that level would be configured after the removal of the kitchen in the north-eastern corner that such a conclusion would not then be appropriate, was subsequently expressly disavowed by Mr Eastman on behalf the Council (as later discussed).
7. Although, in addition to concessions obtained from Mr Nash by Mr Ross, I have also concluded that it is not appropriate to adopt Mr Nash's interpretation of a particular definition in the LEP, this arises as a matter of statutory interpretation rather than one of professional planning expertise. Indeed, some might consider it ironic that, on the matter where I adopt Mr Eastman's interpretation for the Council and reject that advanced by Mr Nash, the position advanced by Mr Nash is that which is vigorously embraced by Mr Ross (as it is in the applicant's favour).
8. Overall, I am satisfied that Mr Nash gave his evidence as best he could - given the way these proceedings unfolded - and that he did so professionally and with appropriate regard to his obligations to the Court as an expert witness.

Irrelevant matters

1. In Mr Ross's written closing submissions, he sought to make a series of allegations against the Council's staff suggesting that there was a campaign of harassment being waged against the applicant. I struck out the paragraphs of Mr Ross's written submissions that were of this nature as they are entirely irrelevant to the process that I am undertaking.
2. At various times during the hearing, minor thematic flavours of this view also surfaced (for example with respect to restrictions imposed during the two site inspections).
3. The process of these proceedings and the outcomes that will flow if the works requiring to be undertaken to render the premises appropriate for issuing of a building certificate (see Schedule 1 to these reasons) are matters entirely related to the proper questions of structural adequacy and broad planning acceptability.
4. Matters of personal interactions between the applicant (or Mr Ross) and the Council and its officers are not part of that process and are irrelevant in these proceedings.

Care with Mr Ross's submissions

1. Later in my discussion of two specific items requiring to be dealt with (the lift/lift well and the "garden bed" at the western end of the uppermost level) I set out, in some detail, the factual position with which it is necessary to deal together with the submissions that Mr Ross has made on each of these matters.
2. With respect to the first of these matters, Mr Ross's comments and submissions about the lift/lift well need to be seen in the context of the detail I set out later on this matter. His submissions are, in my view, the first, major instance where he has been prepared to make a submission self-evidently at variance with the truth, in order to advance the interests of his client.
3. However, I am satisfied that the various positions adopted by Mr Ross in his various oral and written submissions do not permit me to make any credible finding about the existence or otherwise of a lift in the lift well as at the date I reserved my decision. Fortunately, as things have unfolded in this respect, it has not been necessary to do so.
4. With respect to the "garden bed" at the western end of the uppermost level, I have concluded, for the reasons detailed in my discussion on this aspect of the structures on the site, that that which purports to be this partially constructed and soilless "garden bed" is, in fact, a sham. I have also concluded that one element observed during the site inspection (the blueboard "retaining structure" on the western uppermost deck) had been constructed in a deliberate attempt to deceive the Court.
5. Mr Ross's submissions about that "garden bed" need to be seen in that context. His submissions are, in my view, a second instance where he has been prepared to make a submission self-evidently at variance with the truth, in order to advance the interests of his client.
6. As a consequence, it is necessary to treat Mr Ross's submissions on such matters with a deal of care.
7. However, I wish to make it expressly clear that, although Mr Ross is clearly the guiding mind behind the structures that have been erected on-site, I have, throughout the proceedings:

• treated him as the agent representing the applicant;
• treated him, for procedural fairness purposes, as if he were a self-represented applicant;
• avoided taking any judgmental attitude that might found any suggestion I have based any aspect of my decision on questions of moral turpitude. Indeed, for example, on 15 October (Transcript 15 October 15 page 31 lines 27 to 35), I observed: SENIOR COMMISSIONER: Let me indicate this. There is a number of things I need to say, in no particular order. First, on reflection, I have concluded that whether or not Mr Ross and, or Ms Chami are in breach of orders of the Court with respect to the carrying out of works on the site, that is not a matter to which I should have regard in these proceedings, nor is it a matter that requires my involvement in any sense in formally drawing that position or my suspicions about that position to attention elsewhere. If that matter needs to be dealt with further, that is a matter for the respondent in these proceedings and not one requiring my initiation.

1. I have avoided any shifting to the applicant of any responsibility for any inadequacies or inappropriateness in Mr Ross's comments or any culpability for inappropriate (occasionally bordering on abusive) language used by Mr Ross to Mr Nash.

The issue of past conduct

1. One of the matters pressed by the Council as a basis for requiring works to be undertaken to prevent future uses not contemplated by the 2008 development consent was what the Council says is the persistent and wilful pattern of past behaviour of continuing to build elements of the development on the site that were significant departures from that which had been approved.
2. As I understood this submission, it was put in the context that, although he was no longer the owner of the site, Mr Ross was, in the Council's view as set out in its Statement of Facts and Contentions, the partner of the present owner of the site and that Mr Ross remained the guiding mind controlling any and all construction activity that has in the past and would in future be undertaken on the site. As a consequence of this, the Council proposed that I should expressly take into account this past conduct in assessing the likelihood of any requirements that might arise from these proceedings actually being met by the applicant.
3. Not surprisingly, Mr Ross rejects this approach.
4. The appropriate position for me to take has been long settled. Commencing with the decision of the Full Court of the Supreme Court of South Australia in Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17, the position has always been clear since then that a consent authority granting an approval for a development subject to conditions is required to assume that those conditions will be obeyed. Past conduct is not a relevant consideration in a merit assessment process; any such issues are confined to enforcement through different legislative mechanisms (and in jurisdictions not able to be exercised by Commissioners of the Court). Bignold J in Ireland (No 1) from (86) made it clear that Kouflidis was equally applicable in circumstances where there was an application for a building certificate accompanied by an application for consent to use such structure as was the subject of the building certificate application.
5. In Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408, Preston CJ traced the continuing line of authority from Kouflidis and confirmed that that line remained good law in New South Wales.
6. In Jonah, His Honour also made it clear that the question of the impact of some past unapproved activity (particularly if it were to be a continuing activity) is a matter able and appropriate to be taken into account as a factor in undertaking an assessment of the appropriateness of either regularising that activity or granting consent to some further activity where the unlawful activity might well compound or add to in some fashion the impact of the activity for which consent is sought.
7. As will be seen at the later relevant portion of this decision, this is a matter relevant (at least in part) in my consideration of the undercroft area at the rear of the lowest habitable level of the dwelling.

The plans in evidence

1. There were three sets of plans in evidence. Although, in some instances there were more than one copy of these plans (as they were used for the purposes of marking various elements), the unmarked base documents were: 1. The plans for which Development Consent 325/07 was given in 2008 (Exhibit R); 2. The plans that supported the s 96 modification application dealt with by Dixon C (Exhibit 4 Appendix 4); and 3. The plans that were described as being the "as built" plans for the purposes of these proceedings (Exhibit F).
2. It is appropriate to note, briefly, at this point without the necessity for giving detail (as such detail as is relevant is discussed in the context of the appropriate specific element of the building), the "as built" plans do not, in fact, depict the state of the building as it has, in fact, been observed to be constructed during the course of the initial site inspection. As a consequence of those differences, a copy of the "as built" plans was marked up by Mr Nash to show the correct as built position and those plans, with his markings in green, became Exhibit 6 in the proceedings.
3. Although the plans in Exhibits R and 3 are the same base document, the copies were not to the same size as the original version. As a consequence, when any arithmetical precision was required, this could only be derived from the numbered dimensions rather than from scaling. If some scaling was attempted, any result, at best, could only be an estimate.

The structural engineering evidence

1. The structural engineering evidence available for my consideration is of comparatively constrained compass. On behalf of the applicant, it was limited to a report dated 8 August 2012 (Exhibit G) from Mr Koloff, the structural engineer who had drawn up the structural plans, based on the 2008 development consent plans (to the limited extent I have evidence concerning these structural plans). This structural engineering report was prepared for the s 96 modification application. A copy of a March 2010 Structural Report by Mr Koloff concerning the retaining wall with 12 Bayview Street is attached to the August 2012 report and forms part of Exhibit G (this latter document requires no further consideration in these proceedings).
2. Mr Koloff's August 2012 report contains a range of commentary from its author (including commentary on matters that clearly do not fall within his professional discipline - commentary I have ignored).
3. For the uppermost level, as discussed later in more detail, it clearly relates to the s96 modification application plans and not what has actually been constructed at its western end and proposed to be used in the fashion propounded by Mr Ross on behalf of the applicant - the consequence of this is dealt with in more detail in my consideration of this element of the correctly depicted as built element at this portion of the building.
4. The report also makes two relevant comments of a general nature concerning his participation in the construction process. The first of these elements (first page) of his report reads as follows: I have been the structural engineer engaged on this project since around early 2009. I have carried out inspections and provided advice and certification of site excavations of required footings and design and certification of the suspended slabs and other structural aspects of the construction. I have worked with the architect Mr Herbert Dharmawan in the design of the façade and awnings to arrive at the design as proposed in the current section 96 application.
5. The second of these elements (fourth page) of his report reads as follows: I certify that I have carried out all required inspections for all footings, slabs and I have issued certificates for each stage of the works as required. The structure as built is considered to structurally [sic] sound and complies with all relevant codes and ordinances. I am an appropriately qualified and competent person in this area and as such can certify the above.
6. Additional material concerning Mr Koloff's participation in structural engineering aspects of development on the site is able to be gleaned from material appended to the statement of evidence (Exhibit 10) of Mr Leedow, the structural engineer who gave evidence on behalf of the Council. This material is discussed later in this section
7. Mr Leedow's written and oral evidence was of confined scope dealing only with:

• The feasibility of removing the awnings on the northern and western facades on the middle and uppermost slabs and the cutting back of the awning on the eastern facade at the eastern end of the uppermost slab;
• The technical measures that he expected would be required for the implementation of these measures if they were to occur; and
• In his written statement of evidence, an estimate of the minimum possible range of costs associated this.

1. With respect to the latter element of the possible costs of implementation of the proposed measures, he was cross-examined by Mr Ross. This cross-examination also traversed the question of the terms under which a structural engineer (including, possibly, I infer, the structural engineer who undertook the original project) might be expected to agree to participate in the design and supervision of implementation of such works.
2. It is appropriate, to enable a complete understanding of my response to this evidence, to set out the relevant extract from the transcript of his evidence on these points. It is in the following terms (Transcript 20 November page 90 line 23 to page 92 line 24): [Mr Ross] ……………..Let's assume Mr Koloff doesn't have the material which - apparently he hasn't given you all of the design drawings, or doesn't have them, or can't locate them, you might have to do some non-destructive testing to the slab or whatever or make the worst assumption, I suppose. What do you say your costs might be, and having regard to your insurance and professional indemnity, et cetera, would you undertake such a project? Yes, I would undertake such a project. Q. You would. And what would your fees be, just your fees? A. They could be in the order of two to three thousand dollars. Q. That all? A. Yes. Q. And you would certify the slab that you've never seen poured and be responsible for the-- A. I would make disclaimers on such a certificate on the basis that I would assume that the slab has been designed for the loads - that it's capable of taking the loads that it's got at the moment. The additional load taken on the slab by removal of the cantilever slab would be added to what was there. Q. What if that assumption is wrong? Who's liable for the failure of the slab? A. I would suspect that the engineer who certified it in the design certified in the first place. Q. So you would come there and offer an alternative and he hasn't given you the detail and he might not provide you the detail. He allows you to make an assumption and he will still go ahead and make an assumption and blame it on him if it fails. A. Because I did not - if I had the drawings I'd be - had drawings and certification to say that what's on the drawings is how it was built I'd have a reasonable assurance that - that what I'm doing would be - be adequate. If the client asked me to do that I would say I would have to disclaim that the existing situation should be able to - if - if the existing slab can take the load that it's got this is what you do, and make the client fully aware. Now, if he then decides that's not good enough then that's up to him. Q. You wouldn't do it. A. And, in fact, the preference would be to go back to the original designer and get him to do it.; Q. Right. A. If that's possible. Q. Well, if my engineer tells me that he doesn't think there's any engineer out there who will take on a project of this nature-- SENIOR COMMISSIONER: I'm not going to hear you about what your engineer has said to you. ROSS: I said if my engineer. That's a proposition, sir. SENIOR COMMISSIONER: All right. ROSS Q. I said if my engineer said to you that he - your professional indemnity, or if he was in - the positions were reversed, he wouldn't take on someone else's project with someone else's design on the basis that he simply doesn't know what - what's gone in there, and having said that, what position is the owner placed in in terms of trying to work out what he can or can't do? A. What - what - what is the question you're asking? Q. Well, if I'm - hypothetically, if I'm an owner I come to you say, "I want you to do this project. I've been asked to truncate the awning and I want you to design something such that it's not going to collapse" and you say, "Well, I haven't got the information and if I haven't got the information there's certain assumptions I'm going to have to make and my professional indemnity might not cover me." There's some real difficulty there. If I don't, as the owner - if I'm the owner or Ms Chami's the owner, says to you, "Well, look, I want you to certify this project. Otherwise, I'm not giving it to you." Would that add a cost factor onto the overall project such that you put a silly factor of safety perhaps and - for continuous beams all around. I'm being silly, of course, but would that again add to the cost factor? A. It would add to the cost factor. Yes. Yes. And on the question you did ask if - I think your hypothetical question is if the engineers said that, "Yes, I will stiffen the slab up for you but there will be disclaimers" and the client says, "I'm not accepting that", then I would imagine that the engineer who proposed that would then walk away because he is disclaimer which is under the - the parameters under which he would be taking on the project weren't acceptable to the client and he would then walk away. Q. So the client might be in a position that he might not be able to find anyone to do the job. A. He may be. Q. And that follows through in a lot of the areas, Mr Leedow, where - like in 7.22 you say exactly how this dog leg beam functions. It's difficult to evaluate, and you make a lot of assumptions in relation to how they're tied in and how the steel is tied in, et cetera. A. Yes. Q. Would not all of these be assumptions you make and disclaimers that you make at the end of the day? A. It may be that when the work is carried out that some of those assumptions are clarified. Q. That's assuming that the client's prepared to go with you in the first instance and allow you to start hacking away with the disclaimers, so that you might want the disclaimers eliminated before you even start. A. He may do.

Opportunities for further evidence from Mr Koloff

1. I have elsewhere described the process that led to Mr Turrisi giving evidence on behalf of the applicant pursuant to a subpoena to attend and give evidence after he had indicated his unwillingness to do so voluntarily. The process by which Mr Ross was able to compel Mr Turrisi's attendance was outlined to him, by me, during the first tranche of the proceedings in August. It was made expressly clear that such a process could compel attendance by an unwilling witness and the giving of evidence by such a witness.
2. Although it is unnecessary to provide a precise transcript reference, when Mr Turrisi was to give evidence during the third tranche of the hearings, it was clear that Mr Ross understood the process by which a witness who would be regarded, in the terms of the former language used, as "hostile". Whilst such provisions in the Evidence Act 1995 for declaring a witness adverse (as is now the process - one not entirely the same as "hostile") do not strictly apply in proceedings such as these by virtue of the statutory setting aside of the rules of evidence contained in s 38(2) of the Court Act, I would have adopted such a process, by analogy, had it been necessary to do so with respect to Mr Turrisi's evidence (as earlier noted, it was not).
3. I make this observation purely for the purpose of recording that, had Mr Ross wished to have Mr Koloff, the structural engineer who had been engaged on the project in the past give evidence involuntarily if he were not prepared to do so voluntarily, there was complete awareness by Mr Ross as to the process that could have been availed of for this purpose.
4. I make this observation not because I seek to draw any inference from the failure to follow a path with Mr Koloff that had been adopted with Mr Turrisi because it would be entirely inappropriate to do so. I note that Mr Eastman did not, in any fashion, submit that I should do so.
5. However, I do consider it proper to record that, as part of the procedural assistance (as distinct from not providing merit assistance) that I considered it appropriate to provide to Mr Ross, there can be no suggestion that he was unaware of the opportunities available to him to require Mr Koloff to attend and give evidence on relevant structural matters.
6. Although attendance pursuant to a subpoena would not have engaged in the beneficial joint conferencing process that would have flowed from the directions set out above (had there been a structural engineer engaged and participating in a professional capacity on behalf of the applicant), nonetheless the position could not be said to be one where there was absolutely no potentiality for such engineering evidence to be brought on behalf of the applicant.
7. The sole point in noting this is that I have been left in the position where the only engineering evidence is confined to that which I have set out at the commencement of this section. In particular, although I have one of the certificates that was provided by Mr Koloff (setting aside the irrelevant report concerning the retaining wall), I have no such specific certificate for the slab at the uppermost level of the building. To the extent that Mr Koloff can be taken to deal with any matter concerning this slab as a matter of generality, this is dealt with in the section dealing with the "garden bed".
8. I certainly have no certificate or other document referencing that which has been constructed at the western end of the uppermost level coupled with the use for this area that Mr Ross asks me to assume that would demonstrate the design and construction of that slab has been undertaken in a fashion consistent with that which has now been constructed at that level and its foreshadowed use.
9. During the course of Mr Leedow's oral evidence, I ask him some questions about the range of documents that had been made available to him and, in particular, whether there were any documents that had been prepared by Mr Koloff that had been made available to Mr Leedow but not appended to his statement of evidence. He indicated that there were none.

The applicant's architectural evidence

1. The applicant sought to adduce evidence from two architects, Mr Michalandos and Mr Sweeney. At the time Mr Ross sought to tender the two statements of evidence, Mr Eastman objected to portion of the statement by Mr Michalandos on the basis that it was contrary to the Court's general practice of allowing one expert witness in any discipline to a party in merit proceedings such as this. Although I was not prepared to reject the entirety of the evidence in Mr Michalandos' statement, I did uphold the objection to the extent of striking out those elements of this statement (on pages 2 and 3 of Exhibit C) that dealt with the awning structures (structures subject of one of the principal contests between the parties). Mr Sweeney's statement of evidence was admitted without deletion.
2. Mr Eastman indicated that he required these two witnesses for cross-examination.
3. Oral evidence from Mr Michalandos and Mr Sweeney was scheduled to be given during the third and final phase of the hearings of these proceedings. When the time came for this to occur, neither of them were present in the courtroom. I had the court officer call them three times outside the courtroom but it was no response to the call. No adequate explanation was given by Mr Ross for the failure of these witnesses to attend. No application was made at any subsequent time to permit evidence from these witnesses despite their failure to attend at the appointed time.
4. Mr Eastman submitted that, under the circumstances, I should give little weight to the evidence contained in the written statements of these witnesses. Although this evidence was not able to be tested, directly, I am satisfied that it was appropriate to have regard to what was contained in the written statements of these two witnesses and, to the extent that they provided assistance to me in understanding and supporting the applicant's case, relevant extracts from those statements are reproduced elsewhere.

Availability of transcript

1. I have earlier noted that I had made available to the parties a copy of the transcript that had been on the Court's file of the s 96 modification application that had been being dealt with by Dixon C prior to the discontinuation of those proceedings.
2. In the present proceedings, I had concluded, after the first phase of the hearings, that it would be desirable for me to have access to a transcript of the proceedings for the purpose of preparation of this judgment. After the transcript had been ordered for this purpose, Mr Ross approached the Registry seeking access to a copy of the recordings of the first phase of the proceedings to enable him to prepare for the further hearings that had been scheduled.
3. As I had already ordered the transcript for my own purposes, the Acting Registrar sought my views on what I considered to be the appropriate response to Mr Ross' request. Given the potentially significant consequences that might arise from the proceedings and the fact that I had earlier indicated to Mr Ross (without objection from Mr Eastman) that I intended to treat Mr Ross on the same procedural basis as I would a self-represented litigant, I concluded that it would be appropriate to make a copy of the transcript available to Mr Ross when it became available to me. I was also of the view that timely availability of the transcript to me and the parties would potentially speedup progress of the hearings.
4. As the transcript had already been obtained for my purposes, I did not consider that it was appropriate, under the circumstances, to charge for the availability of this information if provided in electronic form.
5. Conformably with the requirement for procedural fairness, I concluded that access to the transcript should be made available to the Council on the same basis as it was being made available to Mr Ross.
6. However, I did not consider it appropriate that Registry staff take the time to print (or the Court bear the cost of) printing copies of the transcript for the parties. To give effect to this conclusion, a CD was made available to each of the parties with copies of the transcript in PDF format.

Proportionality

1. A matter that requires consideration in the context of any aspect of the as built structure that is, on a merit basis, otherwise unacceptable, is whether the cost of carrying out any proposed rectification works as potentially antecedent to the granting of a building certificate would be disproportionate when weighed against those adverse impacts giving rise to contemplation of ordering those works.
2. I have earlier set out why the process that I am undertaking is not one that involves any assessment of moral turpitude or otherwise as such matters arise only for consideration in proceedings of an entirely different nature if they are brought.
3. However, the aphorism from the Gilbert and Sullivan operetta, The Mikado - that one should let the punishment fit the crime - by analogy encapsulates the balancing nature of the tasks I need to undertake with respect to departures from the approval given in 2008. This requires that which might be appropriate to rectify any potential adverse impacts and the cost to the applicant of doing need to be balanced against the nature and extent of that adverse impact.
4. For much of that which it is necessary to require further works be done to enable the dwelling to be given a building certificate (when the rectifying works have been completed), questions of proportionality do not arise. Although there will be costs associated with those works, they are ones which, in the overall context of the nature of that which has been constructed following the 2008 development consent for additions and alterations to the original dwelling, are entirely in keeping with the nature and cost of original elements of the project (either as approved or as constructed).
5. However, with respect to the issue of the awnings on the eastern, northern and western facades, significant issues of proportionality arise in considering the cost to undertake (and the potential risks of undertaking) the works said by the Council to be necessary to render these aspects of the building acceptable. These require to be balanced against the impacts that are said to to be caused by them.
6. In these matters, the question of proportionality does arise for consideration as to what measures are appropriate to be required (if any) in each instance. In addition, as discussed in my detailed consideration of these, the interrelationship between matters raised by the Council concerning these structures and other matters of departure from the 2008 development consent plans need to be considered together.
7. The concept of proportionality, in the context in which it arises in these proceedings, is one of the aspects of manifest unreasonableness in the Wednesbury sense of engaging questions of unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Despite the be discussion in the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 as to whether the concept of "Wednesbury unreasonableness" remains engaged in Australia in precisely the terms in which it has been conventionally expressed, I am satisfied that this is a matter I need not explore given the approach that I have adopted to the concept of proportionality in these proceedings.

The likelihood of effecting and cost to effect works to the slabs

1. In his statement of evidence (Exhibit 10 at page 12), Mr Leedow wrote (numbering not reproduced) the following concerning the costs of the proposed rectification works envisaged by the Council: Pricing of the demolition and strengthening works is the realm of either an experienced contractor specialising in remedial building works by specialist quantity surveyor experienced in remedial works. Cardno do not have the necessary experience to accurately price the demolition and strengthening works required at the subject building. In the co-authored report of the 11 April 2013 (Appendix D), it was expected that the proposed demolition work, the necessary strengthening works and the making good works on the subject building would be in the range of $30,000 to $40,000 including GST. In my opinion, I believe that this is a reasonable cost for the rectification works at this time. At the time of the co-authored report of the 11 April 2013, the building was in a construction mode with scaffolding on-site and no finishes in place. At my inspection of the 25 July 2014, the building works were nearly complete with the bulk of the finishes installed and the scaffolding had been removed. The additional costs for the rectification must include scaffolding, protection of finishes and windows, part removal of windows and sliding doors and reinstatement of finishes that may be affected by the reconstruction works. I would expect that the additional costs for this work to be in the range of $60,000.00 to $80,000.00 and is in addition to the costs nominated above.
2. During the course of his oral evidence, Mr Leedow was cross-examined by Mr Ross (Transcript 20 November page 87 line 12 to page 90 line 12) about the potential cost of elements of the rectification works that the Council proposed that I should order. This evidence was in the following terms: ROSS Q. Just fast forwarding a little bit from that, I noticed that you provided a costing. A. Yes. Q. That costing has varied significantly from your original costing. A. Yes. Q. You've already put a caveat on that as well, so that's simply saying, "Well, look, I'm not really qualified" or I'm not the - what's the word - a quantity surveyor to provide the costing. Is that right? A. Yes. Q. In other words, where your original assessment was thirty to forty thousand dollars and now ninety to a hundred and twenty thousand dollars all up-- A. Yes. Q. --that could be $200,000 to $300,000? If I said to you, for example, just the rear part just to truncate the awning - let's look at the - do you know the rear part of the section where you've got an awning but it was sought to be truncated down from 1200 to 300? A. Yes. Q. You suggested using carbon fibre reinforcement, et cetera, or beaming across it. A. As a possibility. Q. As a possibility. A. I do not have structural drawings of the relevant floor slab or the awning in the..(not transcribable)..of documents that were provided there are structural drawings of the previous scheme which bear no resemblance from a structural point of view even though the slab area is probably the same. There is, there is no ability for me to assume that's what's on the older set of drawings, which are on pages 24 to 28, to allow me to assess anything to do with the truncating of the cantilevered slab in a detailed sense. Q. What do you think - let's look at your costing just for the moment - what do you estimate to be the cost say to do what you suggest, either the carbon fibre reinforcing or a supplementary beam across the short - in the middle, say, spanning north south to replace the support which would have been provided by the lift well and the corner? Do you follow? A. Sorry. Q. You proposed that the effect of truncating the rear awning would have a negative impact on the deflection of mid span. A. Yes. Q. Because of the cantilever effect or absence thereof, the cantilevering mass, and you suggested that could also be overcome by providing a beam across all. When you suggested carbon reinforcing, what were you suggesting, actually? A. Carbon fibre reinforcing is a carbon fibre strip that is essentially glued to the underside of the slab to provide additional strength, if it's needed. Q. Right. A. If it's needed. Now, those comments were made on the basis I didn't know what was in the slab. It could be that when - when and if accurate drawings are provided for that slab that the cantilever slab could just be cut off and carbon fibre strips or beams may not be needed, but-- Q. Let's assume they were needed, as you suggested. A. Yes. Q. On the basis it was designed for the cut-out of the stairwell, let's assume that it hadn't - the stairs hadn't been beefed up to cater for the increased span due to the stairwell being removed. Do you understand that? A. Yes. Q. And you've got some brick internal walls upstairs. Let's assume that you have to provide additional beaming or carbon reinforcing, what's the relative cost of those two options? A. I'd have to do a detailed analysis to work out how much was needed, the relative cost of each, the convenience of it before I could even provide a design, which..(not transcribable)..would then cost. Q. Have you been involved in any carbon reinforcing of buildings? A. No. Q. So it's something that you expect may solve the problem. But whilst you have never had experience, really, in doing that. A. Yes. Q. In terms of providing the extra beaming-- A. Yes. Q. --you understand the extent of work that would be required there. A. Yes. Q. For example, removing the ceiling. Under the slab, the ceiling. A. I don't-- Q. Because it has a false ceiling. A. I didn't think there was a false ceiling. Q. There is a - has to be a false ceiling. You've got airconditioning duct in there. You've got services there. You've got downlights. You've got ducted vacuum systems. You've got all sorts of services in that false ceiling space. A. My understanding is that the - Sorry, Commissioner, I'm not sure what levels I'm at. I'll just reappointment myself. Q. We're talking the kitchen level where you've got the cantilever, the rear-- A. Yes. Q. Yes. A. The beam will go on the underside of that slab. Q. Exactly. A. Which, from my recollection, is in the undercroft area which doesn't have a ceiling. Q. No, no, no. The slab that's impacted on by the removal of the awning, the subject awning, is that the roof of the kitchen. A. Right. SENIOR COMMISSIONER Q. It is the slab to the upper most storey. A. Right. Sorry. I was - again, I was not as familiar with the project as you are. ROSS Q. So what I'm saying is-- A. Yes, you are - you are quite right. SENIOR COMMISSIONER: It's the slab on page 28. ROSS Q. What I'm saying, Mr Leedow, is that given the extent of either the carbon fibre reinforcing, which I've never encountered myself, I think except in aircraft type of applications, but - and you say you haven't encountered it yourself, so it doesn't surprise me. The cost factors would be quite phenomenal, in my view. I don't want you to comment on that. What I'm asking you is if we went - I would suggest the cheaper option would be to beam it, but even to beam it I'm suggesting that that process is rather involved given that you've got a false ceiling in the kitchen area. You've got a fully installed kitchen. You've got services in that false ceiling which would require - you'd have to remove all of those services, the entire false ceiling, move all the services and re-do the - make good all the finishing services. Have you got your head around that when you put your price together, which it seems you haven't because you actually got the slab wrong. You thought you were dealing with a slab below the kitchen. A. Yes, that's because I wasn't aware of where the - a hundred per cent which slab you were - I know what you're talking about with the cantilevered slab. Q. So what I'm saying, Mr Leedow, that estimate could be way off the mark. Is that right? A. It could be, depending on the extent of what has to be done, yes. Q. So where you've said it's like 60,000 and now 120,000 it could be 300,000. A. I wouldn't like to hazard a guess of what it could be. Q. But if I said you it will be around 300,000 you wouldn't necessarily disagree with me? A. I would neither agree with you, either.
3. Mr Leedow also indicated that the cost of engineering services for design of what was necessary if the various interventions with the awnings and slabs were effected was likely to be modest ($2,000 or thereabouts) as a proportion of the overall cost of these works. However, he did indicate in the course of this evidence (transcript extract earlier quoted) that he would not undertake that work unless the client accepted an express disclaimer of any liability for any consequence that might arise from the carrying out of the work. He also expressed the view that he expected that any engineer would adopt the same position.
4. I do not consider that the position which Mr Leedow advances in this regard is an unreasonable one. Nor, on the other hand, do I consider it unreasonable any client placed in the position of being required to have such works carried out would baulk at accepting a disclaimer in the absolute terms that I understood Mr Leedow was proposing would be required by any engineer approached concerning such a project.
5. There are three reasons why I am satisfied that, unless there is some compelling circumstance (the circumstances of each individual element in these proceedings being discussed in the context of that element) making some interference with any slab necessary, such a requirement would be inappropriate:

• First, with respect to the applicant and Mr Ross, adopting such an approach would, prima facie, have the hallmarks of being punitive rather than therapeutic;
• Second, likely high costs of rectification by interference with a slab may be disproportionate to the vice sought to be rectified (particularly if an alternative cure is available); and
• Of likely very minor consideration, it would also fail to take account that any pre-requisites for the issuing of a building certificate or any conditions that may be attached pursuant to s 149F(3)(a) and/or (c) will run with the land and thus bind any potential future owner rather than merely imposing a personal onus on the applicant in these proceedings.

The further site inspection

1. As there were uncertainties that arose as the proceedings unfolded about two relevant and potentially significant aspects of the state of the site, a further site inspection was scheduled for the first morning of the third phase of the hearings. This site inspection was to be limited to the two identified matters.
2. The first of these was what was the state of the lift well that had been inspected during the first site inspection. One of the matters pressed by the Council was that, if a building certificate were to be issued, there should be a requirement that, prior to this occurring, each of the apertures to the lift well should be bricked up.
3. The second was whether or not the ground floor powder room was capable of being converted into a small bathroom with shower facilities.

The lift/lift well

1. The lift well, as seen at the garage level of the dwelling during the first site inspection, is shown in two photographs (Exhibit 5, photographs 3 and 4). The first shows the entrance to the lift well at the garage level whilst the second is taken up the lift well from that level:
2. The blocking off of the aperture at the first habitable level can be seen clearly on the right of the second photograph (the blocking off of the lift well being discussed later in this section).
3. It is clear from these photographs that there is no lift or any associated lift mechanisms in the lift well as at the date of the first site inspection.
4. Any evidence about and/or discussions with the advocates during the first phase of the hearings concerning the lift/lift well was either:

• About planning merits on the implicit assumption that there was a lift well but no lift; or
• whether or not the area of the lift well footprint should be included in floor space calculations

1. During the course of the second phase of the hearings, elements of uncertainty arose as a result of exchanges with Mr Ross concerning the lift well and the possibility that there might, by then, in fact be a lift in the lift well. The first relevant extract from the transcript (Transcript 14 October page 73 line 23 to page 74 line 45) is in the following terms: ROSS Q. Mr Nash, when did you decide that the lift was capable for the building to be used for multiple residences? SENIOR COMMISSIONER: I'm going to stop both of you there. You are referring to this as if it is a lift. It is not. It is a lift well. There is no lift. I am not being asked to give a building certificate to a lift. There is nothing so installed. There is simply a riser that runs between the basement and the uppermost level and I wish the discussion to be confined to that because that's all I'm being asked to do. ROSS: No, I disagree, sir. The building certificate requires - the plans suggest it's a lift. SENIOR COMMISSIONER: I'm certainly not being asked-- ROSS: It's not a lift well, it's a lift. SENIOR COMMISSIONER: --to give a building certificate to something that hasn't been built. ROSS: It has been built. SENIOR COMMISSIONER: I beg your pardon? ROSS: It has been built. SENIOR COMMISSIONER: There is no lift. There is a lift well. That is my point. ROSS: There is a lift there, sir, within that lift well. It's just not operational but there's a lift in the lift well. SENIOR COMMISSIONER: Where is the lift physically? ROSS: In the lift well. SENIOR COMMISSIONER: Where? The lift well has a multitude of levels in it, Mr Ross. Where in the lift well is the lift? ROSS: I don't know what position it is, sir, but the lift well - the lift is - the lift - and it says home lift in the drawings. It's a lift. But I don't want to argue that point, it may not be relevant. SENIOR COMMISSIONER: It is a matter of some considerable importance, Mr-- ROSS: It's an existing lift. SENIOR COMMISSIONER: I observed no mechanism for a lift during the course of the site inspection. ROSS: Well, to my understanding there is a lift there. But regardless, the lift-- EASTMAN: Senior commissioner, I'm sorry, exhibit 5, photograph 4 depicts the well from the garage to the top floor. ROSS: I believe the car wasn't installed but the lift is - the car may be there but - the problem is all for the lift, not for just a lift well. I mean one follows the other I suppose. SENIOR COMMISSIONER: I have to tell you, it does not. I saw no lift. ROSS: There is a lift. I can seek to get photographs for it, but I believe there's a lift. SENIOR COMMISSIONER: No, I am going to say this to you, Mr Ross; there is no evidence that at the time of the site inspection there was a lift in that lift well and if there has subsequently been put a lift in that lift well, I am not dealing with it in these proceedings. I am putting you on notice now, any building certificate that I issue, if I do so, will expressly not encompass any lift in that lift well.
2. The second relevant extract from the transcript (Transcript 15 October page 4 line 16 to page 5 line 36) is in the following terms: [SENIOR COMMISSIONER] …………………... The second matter, however, that is of concern to me relates to your assertion, Mr Ross, that notwithstanding what is shown on photographs 3 and 4 in exhibit 5, that there is in fact a lift in the lift well. ROSS: Well, I believe there-- SENIOR COMMISSIONER: Hang on, hang on. Just let me finish, please. ROSS: Sorry, I apologise. SENIOR COMMISSIONER: If there is in fact as at now a lift in the lift well, something that does not appear to be disclosed on paras 3 and 4, I wish to know that before considering how, if at all, these proceedings should continue further; that is, to understand whether or not there have been significant further works done not in accordance with the development consent to this property since the site inspection. ROSS: I mean, these things have been very simply - my instructions are that the lift well was always intended to be not just a lift well. It was intended to be a lift. SENIOR COMMISSIONER: I am concerned, Mr Ross, that my note was that yesterday you said that at the time of the site inspection, contrary to what is shown in those photographs, there was a lift in the lift well. ROSS: I believe that has happened and I am not sure those are my instructions. I am not quite sure. SENIOR COMMISSIONER: Listen to me. I am concerned to find out whether as at 9.44am on Wednesday 15 October, there is a lift in that lift well. ROSS: Well-- SENIOR COMMISSIONER: Hang on. If there is, I am going to need to consider whether or not that fact influences in any way the course of the proceedings and if there is, I am going to invite you and Mr Eastman to address me, Mr Eastman first, on what path the proceedings should take, if any, thereafter. ROSS: Sure. SENIOR COMMISSIONER: That will necessitate an independent inspection. The only way that independent inspection can be carried out, it would seem to me, is either by us going there again, which I am reluctant to do, let me tell you, or by having an inspection undertaken by a representative of the council and a representative of Ms Chami, in order to permit the factual position concerning whether or not there is a lift in the lift well to be determined and to take photographs analogous to photographs 3 and 4 in exhibit 5 to demonstrate the state of that structure at this time. ROSS: My only comment, sir, if you have finished, is that regardless of any works carried out within the lift well, if in fact they are, my instruction was that there was no impediment seen to that and I am speculating that the work was continuing because contracts have been let, et cetera, et cetera. I don't know for sure whether there is or there isn't or to what stage any work was done. Surely the work, if it had been commenced, wouldn't have been completed, so there may be some issue there but irrespective of whether works were done or were not done, if it is the Court's conclusion that the bricking up of the lift well is a direction of the Court and appropriate in the circumstances, well, it shouldn't affect anything whatsoever. The lift well can be bricked up and that would be the end of the matter. SENIOR COMMISSIONER: No, because it might well be that the council would change its position not only about the bricking up, it might well seek to - I am not making any ruling on this. I am simply indicating what might be a hypothetical position if it arose. The council's position might well be that any lift element within the proposed lift well ought be removed, not merely the apertures bricked up. That's something I don't know and the council is unable to know, absent knowing what the present physical position is of those works as at now
3. When the aperture on the garage level was inspected on the second occasion (19 November), it had been blocked off by the affixing of a sheet of what appeared to be form ply or some other heavy grade plywood. It appeared to me that this sheeting was substantively and firmly fixed in place. There was no aperture around any of the edges of this sheet that would permit observation of what, if anything, was within the lift well.
4. Mr Ross had, shortly before the garage inspection, invited me to observe a similar blocking off of the lift well at the lowest of the three habitable levels of the dwelling and I had done so. I had, at that time, observed that there appeared to be a gap of some 2 cm at the floor level below the panelling on this level. As a consequence, I used a discarded section of large tile that was lying in the vicinity of the front door to the dwelling to slide through this aperture. At various points across the width of the aperture, the tile met resistance at a point some 10 cm or so beyond the inner edge of the plywood sheeting. On my hands and knees, I endeavoured to look through the gap to see what could be observed but was unable to draw any definitive conclusion as to what was or was not beyond the plywood sheet at that level.
5. Mr Ross also advised me, during the course of this inspection, that similar barriers had been installed at the second and uppermost levels of the dwelling but I was not invited to inspect them on this occasion.
6. After we returned to court after the second site inspection, I made the following observations concerning the lift/lift well (Transcript 19 November page 1 line 40 to page 2 line 14): Second, I observed that with respect to the apertures to what has been described as the lift shaft on the ground floor of the dwelling and in the garage, there not being any inspection of the further two levels above the ground floor in this regard. Substantial panels of what appeared to be ply, multiply plywood, have been affixed across those apertures. With respect to the aperture in the garage, there did not appear to be any gap around any of the edges of it. With respect to the plywood that had been affixed and painted on the ground level, there was a gap of perhaps one and a half to two centimetres between the floor of the living room and the bottom of the plywood into which - with no objection being raised to this by Mr Ross, but certainly no encouragement evinced by Mr Ross to the undertaking this - I inserted the edge of a tile that was available in the nearby garden bed and, at a point approximately five centimetres or so in, I encountered some resistance. I am unable to determine what might have caused that resistance, and I was unable to see under the plywood what had caused it - as I indicated to Mr Ross during the course of the site inspection after that - that would cause me, in my view - but I will give him the opportunity to persuade me otherwise if he wishes to do so - that I would not be able to conclude that there was not a lift installed in the lift shaft. Equally, I should note for the record now, nor would there be any basis upon which I could conclude that there was a lift installed in the lift shaft. It is my understanding that Mr Ross has indicated to me that, whether or not there is a lift in the lift shaft, his client is not seeking a building certificate for it and that that, in his submission, need not detain me further in these proceedings.
7. As a result of this second inspection, I advised Mr Ross onsite (and subsequently noted for the record at the commencement of the following court hearing as above) that I was not able to conclude that there was not a lift in the lift well but, on the other hand, I was also unable to conclude that there was a lift in the lift well. I subsequently informed Mr Ross, on the record, that any building certificate I was prepared to consider issuing could not encompass any lift that was in the lift well (if this were to be the case).
8. Finally, Mr Ross dealt with the lift/lift well issue on pages 6 and 7 of his written submissions in reply. He did so in the following terms (emphasis and italics in original): f) There are many reason why the suggestion of the lift concealment also is incompetent, lacking any evidentiary basis and reprehensible. Fact:
9. Any competent person reading the drawings will observe that a "home lift was sought , not a lift 'well''sans lift' in this application
10. At the time of the inspection the openings of the lift had been boarded over at all levels except for the garage area some work was being carried out to the lift. No inquiry was made as to the state of completion or operability of the lift.
11. A hardly legibly photograph of the 'dark inside 'of the lift well is plainly inconclusive as to the presence or otherwise of a lift, lift mechanisms etc. to any discernible degree of completion.
12. The Commissioner indicated during the proceedings that he was not able to issue a building certificate unless the lift was completed and fully operational at seemingly "at that very instant of his inspection"
13. The applicant did not seek to cavil with the Senior Commissioner that is was in fact unnecessary for the Senior Commissioner to look into the inner mechanism of the lift in order to determine its functionality or operational condition in order to approve a lift as shown in the drawings.
14. Nonetheless , it seemed that it would not be possible to demonstrate to the satisfaction of the Senior Commissioner a fully functioning lift(which had been stripped down and awaiting spares to arrive from overseas) my client felt it was expedient just to narrow the issues and not seek approval for that element.
15. It is my understanding that the lift had been in fact fully operational and in fact in use as a construction lift. Major works on the lift was undertaken prior to the earlier inspection following a major failure occurred stemming from damage caused from exposure of key components to the weather, as a result of the conduct of this same council.
16. The subsequent inspection carried out on the 19th Nov 14 (although objected to on many grounds by my client) only confirmed my clients advice intimated to the court by email dated 6th and 10th Nov 14 (copy attached) "that the lift had been permanently closed off."pg. 8 47 b of letter 6th Nov 14. There is complete lack of any evidence expert or otherwise to support such an outrageous reprehensible inference. The absence of any such expert evidence in relation to the state of completion of the lift having reference to the single internal photograph was not led from a competent mechanical or lift engineer. This simple fact. has not stopped Mr Eastman nonetheless giving this evidence personally. The only false and misleading information was given cunningly by Eastman from the bar table was that he had received information that a lift had been installed. This is false and I challenge Mr Eastman to produce a 'skerrick' of evidence to support such an outrageous untruth. Or let me guess it was an unverifiable anonymous telephone call? It would improper here for me to give evidence of conversations/ admissions made to me by Mr Eastman in regard to these matters during the course of the hearing. I will reserve this for a later time when it may be necessary to challenge Mr Eastman's evidence in these proceedings. It is remarkable that no one voiced this inference at any point after the inspection, if at all it needed to be properly answered?
17. The "hardly legibly photograph of the 'dark inside 'of the lift well" referred to by Mr Ross in (3) of the element quoted from his written submissions in reply is the second of the lift related photographs reproduced above from Exhibit 5. Contrary to Mr Ross's submission, it is clear from this photograph and the first of the lift related photographs reproduced that there was no lift or any element of lift mechanism in the lift well at the time of the first site inspection.
18. However, it is important to record that, in addition to the photographs showing what they self-evidently depict, I personally looked up the lift well from the basement to observe that which is shown in the second lift related photograph. I personally saw no lift or any element of lift mechanism in the lift well. As discussed under the earlier heading "Care with Mr Ross's submissions", this is an aspect of Mr Ross's conduct of these proceedings as agent for his client where I am satisfied that Mr Ross was prepared to adapt his position from time to time to suit what he considered to be the best interests of his client without having regard to the truth.
19. There are two further observations to be made concerning the lift well as part of this setting out of the relevant narrative. The first is that Mr Ross has expressly disavowed any proposal that a building certificate, if issued, include any lift (whether or not there is a lift in the lift well). I have proceeded on this basis. If there is a lift and it requires regularisation in some fashion, that will need to be dealt with by the applicant in such separate fashion as she may be advised to pursue.
20. Second, as discussed in more detail elsewhere, during the third phase of the hearing, Mr Turrisi gave evidence that he remained of the view that a home lift was appropriate in this structure as had been inferred in 2.2. of the joint expert report in the s 96 proceedings (Exhibit K in these proceedings) that had been prepared by him and Mr Nash.
21. The joint conclusion expressed at 2.2 of Exhibit K was that "The proposal is deemed acceptable subject to the following conditions" - thereafter, from 2.2.1 through to 2.2.8, Mr Turrisi and Mr Nash set out the eight substantive matters that they agreed required rectification (including a building certificate application).
22. There were two issues that were not resolved between them in those proceedings. Neither of these related to the existence or otherwise of a lift possibly to be installed in the structure.
23. Indeed, the only mentions of a lift in Exhibit K are the use of the word in 2.2.2 as a reference point to the location of a wall and one in 2.2.6 that uses the lift entry to the master bedroom as a geographic reference point. These reference point uses do not infer any merit issue raised with respect to the possibility of a lift within the structure.
24. Following Mr Turrisi, Mr Nash resumed his cross-examination and, during the course of this, he conceded that, if the kitchen on the lowest habitable level of the dwelling in its north-eastern corner were removed, his concern that the lowest habitable level could be used for the purposes of a second dwelling would be assuaged (discussed in more detail later) and that a home lift would not be objectionable. He remained, however, of the view that the blockings of the apertures to the lift well were not sufficiently robust, even on a temporary basis pending the installation of the lift and that bricking up of the apertures (other than the one in the garage) were a necessary safety measure.
25. In light of these concessions by Mr Nash, subject to the fulfilling by the applicant of the undertaking given by Mr Ross on her behalf (on several occasions during the course of the proceedings) to remove the kitchen, I am satisfied that, as there is a clear intention to install a lift (whether or not there is currently actually a lift installed being a matter of irrelevance in these circumstances) the two barriers inspected (the one on the first habitable level being the relevant one for safety purposes) are of a sufficient standard to fulfil the necessary safety protections on an interim basis. Confirmation of the existence of the barriers on the middle and uppermost level and their installation being to a similar standard of efficacy as those inspected is one of the matters that will need to being established on my final inspection prior to the issue of a building certificate.
26. Although I have set out above the reasons why the only construction related matter concerning the lift/lift well with which I propose to deal is the adequacy of the safety barriers to block off the lift well at the three habitable levels of the dwelling, it was appropriate to record, as providing some degree of understanding of the context for and difficulties in dealing with this issue in the proceedings, the precise terms of the relevant elements of the proceedings dealing with this element of the structure.

Potentiality to be a multiple occupancy dwelling and completion of the powder room

1. I have earlier set out my view that, although Mr Ross says that the applicant only wishes to have a building certificate that addresses those matters that fall within the more limited confines of what he and the applicant regard as departures from the 2008 development consent plans, this is not the correct position. In practical effect, as earlier noted, the 2008 development consent plans show, in plan and in elevation, what might be expected to be observed as the resultant form of the building on the site after completion of the additions and alterations for which consent was sought. To the extent that those plans are inadequate and ought not to have been granted approval, that is not a matter relevant in these proceedings.
2. I deal, in this section, with the existing kitchen in the north-eastern corner of the lowest level of the dwelling.
3. However, there are other departures from the approved 2008 plans within this precinct of the building. These departures are, in my assessment, linked to and forming part of what might generally be described as the "powder room issue". These departures include:

• The non-installation of an approved full-service bathroom in this precinct of the dwelling;
• Rearrangement of the internal walls to create a direct passage to the sliding glass door entry to the undercroft area;
• Installation of that glass door in substitution for the original door at that location; and
• Blocking off the door from the room in the south-eastern corner at this level, a door that had, in the past, led to the undercroft area.

1. As observed during the course of the second site inspection, further work had been undertaken in the powder room since the time of the first inspection. The principal feature of this had been the installation of a freestanding wash basin in the north-western elbow of the powder room. However, a range of further work including the installation of a toilet suite and tiling is necessary to finish the powder room.
2. The third of the three elements earlier set out as the major concerns of the Council was expressed as being the potentiality for the ground level of the dwelling to be used as a separate independent occupancy. The reasons that are advanced by the Council for this concern were as follows:

• The existence of the kitchen in the north-eastern corner of the ground floor;
• The existence of the powder room immediately adjacent to this kitchen. The Council puts the proposition that this powder room is capable of accommodating (and has, in the Council's submission, the necessary plumbing fittings for) a shower, a basin and toilet;
• The space in the undercroft is, in the Council's submission, clearly designed to be a two car garage;
• The width of the side setback to the northern boundary clearly provides scope, in the Council's submission, for it to be converted to a driveway to provide access to the undercroft area;
• The glass door between the undercroft and the building provides a ready secondary pedestrian access should there be a separate dwelling on this level;
• The installation of a lift in the lift well would permit direct access from the garage at the front of the property to the second and third habitable levels without the necessity to go through the first level; and
• Secondary pedestrian access to the second and third level would be available up the northern side setback and thence via the steps leading to the external paved area (which paved area includes the swimming pool and spa) and thence directly into the new, main kitchen at the eastern end of the second level of the building.

1. This broad proposition is said by the Council to necessitate requiring a number of works to be undertaken at this level in order to prevent any possibility of this lower habitable level being used for a separate occupancy. Whilst some of the works (such as the noise attenuation measures proposed for the two apertures in the southern wall of the undercroft) also find separate foundation for other reasons in the Council's submissions, much of that which is sought to be required on this level prior to contemplation of issuing a building certificate finds its sole foundation, as I apprehend it, in this concern of the Council of the potential to create a secondary occupancy in the building.
2. Given the conclusion that I have reached on this point, it is unnecessary to deal, in any length, with the detail of the measures that the Council says should be required pursuant to s 149D(5) prior to me considering the finalisation of a requirement for the preparation of a building certificate able to be issued pursuant to s 149F.
3. Mr Ross gave an undertaking several times during the proceedings (on what he assured me was proper instructions) that the applicant would accept a requirement to remove the kitchen in the north-eastern corner. The final one of these was on 19 November where the transcript records (page 74 lines 39 to 48) as follows: SENIOR COMMISSIONER: I'm going to get this dealt with precisely. Are you instructed to repeat your undertaking, given on behalf of Ms Chami, that as part of the outcome of these proceedings, the kitchen in the north-eastern corner on the lowest habitable level of 8 Bay View Street will be removed? ROSS: Yes. Unequivocally, absolutely, without any condition-- SENIOR COMMISSIONER: All right. Mr Nash-- ROSS: --unconditionally, absolutely, perfectly clearly.
4. I have accepted that the removal of that kitchen, in the precise terms in Schedule 1 setting out what is required to be done pursuant to s 149D(5), is the appropriate course to follow to ensure, on a reasonably precautionary basis, that facilities will not exist within the building that will permit the creation of a second occupancy.
5. Indeed, during the final phase of Mr Nash's evidence, he was questioned by me on this point immediately after my exchange with Mr Ross recorded above. Mr Nash agreed that, if there were a sufficient and effective removal of the kitchen, that would preclude use as a separate occupancy and that other measures designed to address the same issue would be unnecessary. The relevant extract from the transcript (page 74 line 50 to page 75 line 9) on this point is in the following terms: SENIOR COMMISSIONER: No, all right, fine. Q. Mr Nash, I ask you to make the assumption that the undertaking that you have just heard is given effect. Does that change your view in any regard with respect to that level of the building? A. Well, yes, senior commissioner. Q. And if so, in what respect? A. If there is no kitchen on the ground floor level, then there is no potential for separate habitation of the ground floor level.
6. Mr Eastman, contrary to his otherwise general adoption of Mr Nash's evidence, resiled from this conclusion drawn by Mr Nash. He informed me that it remained the Council's submission that it was appropriate for me to add the remainder of the suite of matters pressed by the Council as necessary to forestall any use as a second occupancy in order to ensure that this was incapable of occurring. The reason for this submission was founded in the matters he outlined concerning the prior conduct of Mr Ross and the applicant and what the Council considered to be (in my words) an absolutist position on this proposition.

Calculation of the gross floor area

1. The calculated gross floor area of that which has been constructed when compared to the calculated gross floor area of that which was approved is one of the elements engaged in the consideration of whether or not the bulk and scale of the as constructed dwelling is acceptable in its streetscape and neighbourhood context. It is also a matter potentially giving rise to more detailed consideration of compliance with numerical controls in the DCP. Such issues potentially arise in addition to any qualitative matters that might arise from the DCP's terms.
2. Mr Nash, in his original Statement of Evidence in these proceedings (Exhibit 4), on page 9, prepared a table with two columns in it (these set out his gross floor area calculations on the basis of including the undercroft area at the rear and, second, excluding that area from the calculation of that level).
3. At the commencement of his oral evidence, he produced a substitute page for page 9 that had contained this two-column table. I permitted the substitution and struck through the original page. The changes on the substitute page contained two significant differences from that which had appeared in his original document. First, he entirely replaced an original table of calculations in the original report and substituted a significantly revised table for it. Second, the two column table now had four columns. Images of these pages are reproduced as Appendices F and G (the appendices are marked by me with red ovals noting the two/four column tables).
4. Relevantly, the two columns in the original version dealing with the calculation of the gross floor area of the dwelling were replaced with four columns, two being those from the original page with two added, different columns.
5. Mr Nash conceded to Mr Ross, in cross-examination on this point, that the revision had been undertaken at Mr Eastman's request. Nothing, in my view, turns on this.
6. First, it is appropriate to set out the outcome of the cross-examination by Mr Ross concerning Mr Nash's calculations of the gross floor area of the uppermost level of the dwelling. The outcome of this calculation is a critical first step in my consideration of whether or not the present gross floor area of the dwelling complies with the relevant numerical controls, on the interpretation advanced by Mr Ross of the relevant definition in the LEP of the floor space ratio for dwellings within this zone permitted by the applicable planning controls.
7. As it is relevant in my second step consideration of this issue, I note that Mr Nash had excluded the stairs and lift well in deriving the gross floor area for this level the first and second columns in his table reproduced in Appendix G (his replacement page 9).
8. As part of his cross-examination of Mr Nash, Mr Ross had Mr Nash undertake an element by element, dissected recalculation of the gross floor area (excluding the stairs and lift well) of that level of the building. At the conclusion of that exercise, Mr Nash conceded that he had made an error in his calculations and that the appropriate outcome of the analysis was a gross floor area for this level of 86.79 m² (excluding the lift well), an area generally reflective of the calculation incorporated in the calculations shown on the as-built plans that had been provided in support of the building certificate application (Exhibit F). In light of this concession, it is unnecessary to reproduce the whole of the relevant transcript extract.
9. Mr Nash did not offer any satisfactory explanation as to how he had made a mistake of approximately 25% above the correct calculation when preparing his report.
10. The permitted floor space ratio control is derived from the provisions of cl 4.4 of the LEP. The relevant extract reads: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure that the bulk and scale of development is compatible with the character of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
11. The permissible floor space ratio for the site shown on the Floor Space Ratio Map is 0.5:1.
12. The consequence of the recalculation by Mr Nash is that, on the interpretation of the definition of gross floor area advanced by Mr Ross and accepted by Mr Nash (namely that the stairway and the lift well are to be excluded from such calculations), the as built structure satisfies the floor space ratio control.
13. The relevant element of the transcript (Transcript 22 August page 23 lines 9 to 26) reads: ROSS Q. Mr Nash, I want you to do the maths again and tell me with these revised numbers does that make a change to your conclusions in regards to the compliance or otherwise with the floor space ratio? I mean, even if you accept Mr Eastman's direction to include the stairs, reluctant as you were to do it. A. So the figure in column 1 is 345.28, which gives you FSR 0.44 to one, so if you just add 23.79 to that figure, there's 369.07, is - it's the fourth column I'm referring to, third column, 0.47 to one, and if you add the undercroft-- Q. No, don't worry about the undercroft. We've agreed that that's not included. We will take it out later if you disagree. For the present exercise, we are just talking about the FSR with our without the stairs is .47 - well, in fact. .4 without the -- A. 0.47-- Q. With the stairs. A. With the stairs, 0.44 without the stairs.
14. I observe that, during the course of his evidence, Mr Nash indicated that he understood that, as discussed below, there was a difference of interpretation between councils as to whether or not stairs and lift well areas should be excluded from gross floor area calculations for dwelling houses but that he preferred (and adopted) the interpretation that excluded such areas from these calculations.
15. Subsequently, during the course of submissions, Mr Eastman supported an alternative construction of the relevant portion of the definition of gross floor area as requiring the inclusion, in this case, of both the stairs and the lift well in the gross floor area calculations. He did so on the basis of the wording of an element of the definition of gross floor area in the Dictionary to the LEP. The relevant portion of the definition is in the following terms: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) ………..., and (b) ………..., and (c) ………..., but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) ………..., and (f) ………..., and (g) ………..., and (h) ………..., and (i) ………..., and (j) ………....
16. Before turning to deal with his submissions in detail, I should note that he properly drew my attention to the only decision of which he was aware (and I have been unable, myself, to find any other) that dealt with this topic. This decision of Tuor C (Lord v Manly Council [2010] NSWLEC 1223) dealt with the question of whether or not such areas should be excluded - but did so in very brief terms as follows: 23 The exclusion of "common vertical circulation" in the DCP does not refer only to residential flat buildings, while I accept that the use of the word "common" is confusing, a practical interpretation would be to exclude the stairs from GFA.
17. Mr Eastman submitted to me that the view adopted by Tuor C was incorrect and that a proper construction of the words 'common vertical circulation areas' necessarily required the incorporation of stairs and lift wells in, relevantly for these proceedings, single dwellings, in the calculation of the gross floor area for such dwellings. In essence, he did so on the basis that the word 'common', by its inclusion in the definition as a qualifier to the words 'vertical circulation areas', was intended by parliamentary counsel to have work to do and that the only logical work that it could do was to narrow the term 'vertical circulation spaces' by confining it to spaces of that nature that were shared between multiple occupancies in a building (whether a residential flat building or a building of some commercial or industrial nature).
18. He argued that, had the drafting intention been to exclude all such areas no matter the nature of the building within which they are located, the inclusion of the word 'common' would have been unnecessary as the remaining words, 'vertical circulation areas', would have been all-encompassing without the necessity for the embellishment of the added term.
19. I agree with this submission.
20. First, I accept that the inclusion of the word 'common' when added to the words 'vertical circulation areas' means that the draughtsperson intended that that word would have some work to do as, if it were not intended, in some fashion, to qualify or limit the broader term, there would have been no need to include it as the words 'vertical circulation areas' are, in themselves, a complete and all-encompassing concept representing the outcome contested for by Mr Ross as being the meaning to be ascribed to the composite expression that includes the word 'common'.
21. Second, the Macquarie dictionary definition of 'common' is, relevantly, in the following terms: 1. belonging equally to, or shared alike by, two or more or all in question: common property.
22. It is evident that the application of this definitional element to the expression 'vertical circulation areas' has the effect of imposing, in the fashion proposed by Mr Eastman, a limit on the meaning of the broader all-encompassing expression.
23. Finally, it is well settled that a plain and ordinary meaning is to be derived from such an expression and that it is inappropriate to endeavour to force such an expression into some contrary meaning if the ordinary, plain meaning makes sense in its context and is capable of reasonable application.
24. As a consequence, I am satisfied that the proper interpretation of the definition of gross floor area necessitates the inclusion of the stairs and lift well, for each level of this single dwelling, in the calculation of the gross floor area for the dwelling.
25. However, the addition of the lift well area at each habitable level (~2.86 m2 per level) to the area that caused Mr Nash to derive a floor space ratio of 0.47:1 (see earlier transcript extract) still does not trigger non-compliance with the control. Although stated in the absence of lift well areas, the overall outcome of the floor space control issue was as follows (Transcript 22 August page 23 lines 42 to 49): ROSS Q. So do you agree that the floor space ratio is less than what was approved, what we have delivered is less than what was approved? A. Yes, it would be - dependent on what was the method of calculation, but on the basis of LEP 2009, yes, it is less than what was approved, and my calculation is, in terms of your draftsman's calculations, my scaling comes out at a figure approximately 23 square metres under the CAD calibration.
26. This position remains the correct conclusion even with the inclusion of the lift well areas.
27. A minor further element arises concerning the question of whether or not the area of the lift well at the north-eastern corner of the garage should be counted within the gross floor area as it is not, in fact, part of the garage space proper. Although I am inclined to the view that this space should be included, it is unnecessary to express a concluded view on this point as its incorporation would merely add ~ 2.9 m² and would still not cause the properly calculated gross floor area of the dwelling as constructed to exceed the floor space ratio contained in the relevant planning controls.
28. As a consequence, it is to be presumed, for the purposes of compliance with the compatibility objective in cl 4.4(1)(a) of the LEP, that which is constructed on the site satisfies the objective. However, this does not effect an absolute exclusion of bulk and scale as considerations leading to a potential finding of unacceptability on that ground. It does, however, exclude FSR as a basis for reaching such a conclusion.

Introduction

1. Two of the matters that were in dispute between the Council and the applicant were:

• the extent to which there had been excavation across the eastern edge of the built form to permit the extent of the undercroft, as constructed, to be put in place; and
• whether the built form exceeded of the maximum height permitted.

Extent of excavation

1. Mr Ross submitted that, from such visual indicia that I had available (old paint marks on the 8 Bayview side of the existing boundary wall between it and its southern neighbour; a photograph reproduced in Mr Turrisi's 2012 statement of evidence; and what was able to be observed as the ground level behind the eastern retaining wall of the undercroft) there had, in fact, been minimal excavation undertaken.
2. On the basis of these factors, it was the applicant's position that there was no issue arising relevantly in these proceedings concerning the extent of excavation.
3. On the other hand, it was the Council's position that a correct reading of the southern elevation of the 2008 development consent plans showed that the ground level at the relevant locations in the vicinity of the undercroft had been extensively excavated.
4. Despite the position adopted by the Council, whilst potentially finding some support in the southern elevation plan in the 2008 development consent plans, a more detailed discussion of how this plan might properly be interpreted (on November 21) caused, as I understood the outcome of the exchange, the Council to resile from its contention of the extent of this excavation.
5. I am satisfied, not only from the physical evidentiary elements upon which Mr Ross has relied but also from a proper inference as is able to be drawn from the southern elevation in the 2008 development consent plans, that the extent of the excavation at the eastern end of the undercroft was limited and was certainly not to the extent contended by the Council. I am satisfied that this does not provide any basis for further intervention on the merits of the dwelling as constructed.
6. In reality, what this issue has demonstrated is that, at least in that regard, the 2008 development consent plans were appallingly badly drawn and there is reasonably available the inference, as earlier noted, that a proper examination of the plans at the time they were assessed by the Council should have led to their rejection.
7. It is, perhaps ironic in the circumstances of matters contested in these proceedings, that the drafting entity for these plans was a business known as Cheap-A-Plans. Whether or not the words 'and Nasty' were inadvertently omitted from the business name is a matter unnecessary for speculation.

Height

1. It is unnecessary to deal with this topic at length. In the context of the matters that require determination in these proceedings, I have concluded that it is unnecessary to make any determination as to whether or not the dwelling as constructed breaches in any height control. There are three matters that inform me in reaching this conclusion. They are:

• The issue of unacceptability of the bulk and scale of the dwelling when viewed frontally in a streetscape context is not created by height related issues potentially triggered by the built form of the habitable space at the uppermost level. As discussed, in detail, this impact is triggered by a combination of the awnings and balustrade to the uppermost level rather than the set back of the habitable space at that level. Given the course that is set out in Schedule 1 to address that adverse impact - being a course that does not involve considering any height reduction measures, it is unnecessary to explore this issue further in that context;
• Second, although I have concluded that the bulk and scale of the dwelling when viewed from the south is unacceptable, I have also concluded that it would be inappropriate (either for reasons of proportionality or of compounding other adverse impacts on the neighbouring property to the south) to require any intervention with that which has been constructed. As a consequence, whether or not there is some height exceedence that might contribute to perceptions in the southern elevation, it, too, does not warrant further consideration as it would not provide any basis for change to that which is set out in Schedule 1; and
• Third, all other aspects of that which has been constructed that give rise to the other elements set out in Schedule 1are not matters that are, in any fashion, influenced by the height of the building.

The role of a building envelope

1. Mr Ross made much of the fact that, on what he says is the appropriate construction of the requirements defining the permitted building envelope (front and side setbacks; height above ground and the like), the external built form of that which is erected on the site, including the awnings, is compliant and therefore should be permitted. Because the awnings fit within the envelope, this, he says, is sufficient to warrant approval.
2. On this point, Mr Ross is simply wrong. He fundamentally fails to understand the role that a building envelope plays in any assessment process.
3. Put plainly, a building envelope imposes a limit on what might be expected to be developed on a particular site - it does not create the entitlement to develop either to the limits of the envelope or, within the envelope, construct anything that a proponent might desire that does not breach the limits set by that envelope.
4. Other planning considerations necessarily arise in such an assessment. Simple examples that ordinarily require consideration are those that might be expected to be set out to in the controls of a development control plan dealing with such matters as overshadowing, view loss or other factors where qualitative assessments are required rather than simply a "yes v no" - "green light v red light" approach that would result if a simple "compliance with the building envelope" test were to be applied. Whilst, obviously, compliance with a building envelope is a factor weighing in favour of a proposal, it is not, in itself, determinative of acceptability.

Building design

1. The DCP, in Part C1, cl 1.7 Building Design sets out four broad objectives. Those objectives are: 1 Ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and the area. 2 Ensure that alterations and additions to existing dwellings maintain the integrity of the design and style of the existing building. 3 Ensure elevations to the street and public domain are well proportioned and designed. 4 Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity.
2. Of those objectives, the first, third and fourth are relevant to issues in these proceedings.
3. One of the following elements of the section, cl 1.7.2, sets out objectives for Architectural Character and Articulation. These provisions are in the following terms: a) Dwellings should provide a minimum of one major window from a habitable room directly overlooking the street or public open space area. b) Skylights within roofs are to be located so that they are not visible from the street. c) Attics will only be considered within existing roof forms. Attics in Mansard roofs are prohibited. d) Where habitable attic space is provided within a roof form then minor dormer windows are to be provided located away from the street frontage. Dormers are to be proportioned vertically and not horizontally. e) Metal deck roofs are to be a mid to dark range colour.
4. None of these objectives is called up for consideration by the present structure.
5. However, Mr Ross has relied on the third of the photographic examples given in this section of the DCP. He does so as he submits that the design as constructed is responsive to the first and third of the broad objectives of cl 1.7. The fourth objective arises in separate considerations.
6. That photograph is reproduced below:
7. The DCP's caption for this photograph is: The use of feature materials to express architectural design elements is encouraged.

Architectural styles in the vicinity

1. Mr Ross tendered a bundle of photographs of other dwellings in streets in the general locale within which the site is located (Exhibit H). He relied on upon these photographs and Mr Nash's evidence concerning their general form and the levels/storeys depicted in them as being representative of the emerging architectural style of contemporary dwellings of (as I understood it) generally similar presentation in the streetscape context of each such example.
2. Exhibit H comprised photographs of the dwelling that is the subject of the proceedings and of nine other dwellings (with a number of those dwellings having two photographs of them incorporated in the bundle), I consider that, although some of them provide assistance to Mr Ross concerning the visual impact and bulk and scale presentation of the site to the street using the photographs as comparators, I am also satisfied that a number of the photographs are of no assistance in this process as the styles of the photographs that I reject (as being irrelevant for this purpose) are markedly different in their style and presentation when compared to the dwelling at 8 Bayview Street.
3. It is, however, appropriate to reproduce those photographs in this exhibit that I do consider are relevant in order to understand my consideration of this element of the issues concerning 8 Bayview Street in this comparative context.
4. For this purpose, it is convenient to reproduce (again) the initial photograph in Exhibit H. This photograph is the only photograph in evidence of the "full frontal" presentation of 8 Bayview Street. The various frontal photographs taken by Mr Nash were in either the photographs at Appendix 2 to his statement of evidence (Exhibit 4) or the bundles of photographs comprising Exhibits 5, 12, 13 or 14. Any frontal photographs in those bundles were either ones which omitted the uppermost level partially or entirely or were photographs taken during the course of construction when the building was incomplete and its presentation in the streetscape was significantly different. The Exhibit H photograph of 8 Bayview Street is reproduced below:
5. I now follow with reproductions of the photographs of other dwellings forming part of Exhibit H that provide assistance, in my assessment, in understanding the point that Mr Ross has sought to make about emerging, contemporary architectural styles in the locale and what he says is the consistency of the presentation of 8 Bayview Street with this style. The address (if marked on the exhibit) of each dwelling photograph extracted from Exhibit H is given as a caption following the relevant photograph: 47 Arabella Street, Longueville 85 Arabella Street, Longueville 17 Woodford Street, Longueville Address not shown on Exhibit H

Comparative analysis of the architectural styles

1. As I understand what is sought to be drawn by Mr Ross from these photographs is that the design concept embodied in that which it has now been erected on 8 Bayview Street is entirely consistent with not only that anticipated by the DCP in the third photographic example to cl 1.7.2 Architectural Character and Articulation but also with the actual emerging architectural character in the vicinity.
2. The photographs in Exhibit H that have not been reproduced are sufficiently architecturally dissimilar (either as to visual style or non-rectilinear form) so as not to provide any support for this broad proposition.
3. However, those that I have reproduced demonstrate that bold, rectilinear designs in white or light colours are considered an acceptable architectural style by the Council as appropriate for this neighbourhood. In the context of these proceedings, I accept that the general architectural style of that now seen on the site can be regarded as an appropriate one for the site.
4. This point concerning architectural style does not, however, provide any complete answer to the concerns that the Council expresses relating to bulk and scale issues with the streetscape presentation of what is erected on 8 Bayview Street.
5. Indeed, in this context, it is appropriate to observe that, although there is a broad stylistic consistency, the rectilinear features in the examples reproduced all differ from 8 Bayview Street in two separate aspects.
6. The first, lesser aspect is that the awnings on 8 Bayview Street, on its northern and western facades, extend beyond that facade whereas the rectilinear elements that provide stylistic cues on the other four examples shown are all within or forming part of the facade of those buildings when regard is had to the relevant support structures (such as columns or pillars). They are not cantilevered as is here the case.
7. In addition, of greater import, all the balustrading elements in the other dwellings for which photographs have been reproduced above is of glass. None of them incorporate any masonry balustrading of the style constructed on the uppermost level of 8 Bayview Street.
8. For 8 Bayview Street, at the uppermost level, this difference is made more pronounced by the fact that the balustrading constructed on the slab at that level extends further toward the street than had been approved - with the consequence being that what had been approved as a slightly receding design at the uppermost level is now one that is more assertive in its presentation to the street.
9. As a consequence, whilst I accept that there is design theme consistency, there still remains to be considered, separately, the question of overall bulk and scale in the streetscape, the aspect of the present built form that was, relevantly, the foundational element of Mr Nash's concern in this regard. This is discussed in detail later.

The impact on 6 Bayview Street

1. The DCP includes provisions dealing with impacts on amenity of neighbouring properties (amongst other things). These provisions are contained in Part C1 Dwelling Houses and Dual Occupancies of the DCP. The provisions are contained in cl 1.8, a provision that contains three objectives that are in the following terms: 1 To provide reasonable solar access to habitable rooms and recreational areas of new and existing developments. 2 To provide reasonable acoustic and visual privacy for neighbouring properties. 3 Minimise overlooking between adjoining dwellings and their private open spaces.
2. After the DCP sets out those objectives, there then follows provision under the headings Solar Access and Overshadowing; Privacy - Visual and Acoustic; and Private Open Space. The controls in each of these sections are not specifically relevant in these proceedings. However, potentially, broader amenity impact elements from the DCP's objectives in cl 1.8 do arise for consideration with respect to 6 Bayview Street. These arise for consideration as, by analogy not express statutory requirement, the planning assessment I am undertaking for this building certificate application requires regard to the development assessment criteria in s 79C of the Act. Therefore, in addition to considering the provisions of any development control plan [s 79C(1)(a)(iii) of the Act], s 79C(1)(b) (again by analogy) also calls up my consideration of: (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
3. This consideration, in this instance, can be guided by the objectives in cl 1.8 of the DCP but is not constrained by the controls that are set out in response to that objective. This arises as I consider that the relevant principles set by the Court of Appeal as applying to a s 79C evaluation also apply in these circumstances.
4. The Court of Appeal, in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373, dealt with the appropriate basis for consideration of a development control plan. From what was said by the (then) Chief Justice, at para 75, three propositions emerge. These, in my view, are relevant for these proceedings.

• First, although I have a wide ranging discretion, it is not at large and it is not unfettered.
• Second, the provisions of the DCP are to be considered as a fundamental element in or a focal point to my decision making process and that that is particularly relevant if there are no issues relating to compliance with the LEP.
• Third, a provision of the DCP that is directly pertinent is entitled to significant weight but is not in itself determinative.

1. Contra all of that, however, I consider that I am permitted (in an application such as this, if I am not satisfied - on the basis of the provisions of the DCP or in the absence of any specifically relevant provision - that an aspect of this development should be included in a building certificate or should only be included if modified to render the impact acceptable), to go beyond the requirements of the DCP in my impact assessment and determination of what might need to be done to render that which has been constructed on the site appropriate to be granted a building certificate.
2. On the other hand, it is certainly not open to me (as was made clear by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338) to indicate that I consider that any provision of the DCP is wrong and I should not be taken to be doing so in the following analysis.
3. It is in this contextual framework that I turn to consider the impacts of the constructed structure on 8 Bayview Street on the adjacent property to the south at 6 Bayview Street.

Visual

1. I turn, first, to the issue of visual privacy under this topic. There are three areas where the question of overlooking from the building as built is raised by the Council. These are:

• Overlooking from the (now) insert balcony on the uppermost level (located immediately to the east of the relocated stairwell providing access from the middle level to this level). This overlooking is said to be through two skylights in the roof of 6 Bayview Street with that roof being approximately at or little below the floor level of this balcony;
• The potential of overlooking said to exist over the southern balustrade of the uppermost level deck to the west of the stairwell with such overlooking said to be into living space of 6 Bayview Street; and
• The Council's concern that the awning at the eastern edge of the uppermost level of the building above the kitchen windows and door on the middle level will be transformed into a full width Juliet balcony. Overlooking from any such balcony into the private open space at the rear of 6 Bayview Street would, in the Council's opinion, be entirely unacceptable.

1. I deal with each of these issues separately below.

Overlooking from the insert balcony

1. During the course of the site inspection I was able to view from the insert balcony toward these skylights. I did so over the top of a masonry balustrade that had been constructed to this balcony with that balustrade being a metre or so in height (there being no suggestion of National Construction Code non-compliance, the precise height is not material in these proceedings). Although able to observe the uppermost sections of the wells serving the skylights, I do not recollect being able to see into the spaces below in any substantive fashion.
2. The s 96 modification application plans showed this area as a non-trafficable garden bed whilst, as presently constructed, it is clearly intended to be a balcony accessible through a sliding glass door from the corridor serving the rooms at this level.
3. The second matter to be observed is that the 2008 development consent plans (plans that envisage the staircase to be to the east and inserted into the now kitchen space below and accessing the uppermost level through what is now a bedroom) was to have had a balustrade along an approved continuous balcony along the southern edge of this portion of the dwelling. This balcony was approved as wrapping around across the western frontage with a garden bed (dealt with separately elsewhere) between the deck and the western edge of the uppermost slab.
4. The balustrade that was approved in the 2008 development consent plans is shown on the southern elevation of those plans as being a continuous multi-element balustrade with significant gaps in it. There is not sufficient detail on the plans to be able to understand whether this was intended to be of horizontal slats or of tensioned stainless steel wire.
5. In the present context, it seems to me, that it is unnecessary to know this extent of detail. It is sufficient to know that there were intended to be gaps between the elements of the balustrade that would have permitted some degree of viewing toward the residence to the south through those gaps.
6. As I understood it, although the starting position of the Council in these proceedings was that this insert balcony should be required to be rendered as a non-trafficable area, that position evolved to one where the Council would be prepared to accept an additional planter box within and using the existing masonry balustrade at that location so that anybody standing on that balcony and looking to the south could not approach close enough to the existing balustrade to be able to look into any habitable room in 6 Bayview Street.
7. Although the amenity of this insert balcony will be limited and its likely use infrequent because of its restricted (or, perhaps, non-existent) solar access, it does have available to it, from a standing position at least, attractive views to the south and southwest. However, the views from a seated position on this balcony will be more limited. As a consequence, it is reasonable to assume that its use is likely to be confined to times when its sheltered aspect will be a positive attribute.
8. In addition, the fact that this element is now separated from the main area of the western deck at this level when coupled with the fact that this level is a bedroom level also makes it reasonable to assume that the likely level of usage of this balcony will be infrequent.
9. In light of these factors coupled with the limited viewing I recollect was actually available, I have concluded that it is not appropriate to require any alterations to the balustrade arrangement or to require the rendering of this area as non-trafficable.
10. It also seems to me to be unnecessary to consider any condition pursuant to s 149F(3) for this balcony (for example to mandate the retention of the masonry balustrading) as it would seem unlikely that such removal would be contemplated. However, if the Council considers such a condition might be warranted, that can be dealt with in the July 2015 phase of the proceedings.

The southern balustrade area to the west of the stairwell

1. There is presently a masonry balustrade constructed along the southern edge of the deck at the uppermost level that lies to the west of the now constructed location of the stairwell between the middle and uppermost levels of the dwelling. On the 2008 development consent plans, the balustrading in this area is depicted as being proposed to be constructed in the open fashion described in the immediate preceding section. This proposed balustrading was to have been a continuation of the balustrading described above.
2. The view that is able to be obtained over the as constructed balustrading toward the south (being filtered views to the river) is, in my assessment, the predominantly attractive view from this outdoor deck area. That makes it likely that use of the area will, to a considerable extent, involve enjoyment of this view.
3. When close to the balustrading, a degree of observation into a living area of 6 Bayview Street is possible by looking downward and slightly to the left. However, it was my assessment that, for this overlooking to be made, it was necessary to be in reasonably close proximity to the masonry balustrade. From further away, the overlooking opportunities are mitigated by either the masonry balustrade itself or the now constructed structure housing the stairs leading to the uppermost level.
4. Additional context in this regard is provided by the joint report of Mr Turrisi and Mr Nash in the s 96 proceedings (Exhibit K). This report records, on this topic, the following: 2.2.4 It was shown by Mr Nash, during our joint conference meeting, via photographic evidence, that the planter box as shown on the S96 Modification plans is not being built as per those plans. Accordingly, it was agreed that the partially built masonry walls on the upper level, southern facade be reinstated as landscaped area described as "garden box".
5. The garden box identified in this extract has been identified by me in red on the plan reproduced below (from Exhibit 4 appendix 4).
6. The issue arises for determination as to whether or not some additional setting back of a potential viewer at this location should be effected by requiring this garden bed element to be constructed.
7. I am satisfied that it is not necessary to require the construction of the garden bed element envisaged in the extract from the joint report quoted and as shown in the reproduced plan.
8. I have, however, reached this conclusion for reasons that differ from the reasons relating to the infill balcony. For this location, there are three reasons why the present masonry balustrade is sufficient. The first reason is that, although a downward and to the left view into a living space is available, the extent of the observable space is limited and is at a separation distance that would, in an ordinary planning context, probably be regarded as acceptable.
9. The second reason is that there is a significant degree of mitigation of the risk of such overlooking being provided by not only the masonry balustrade itself but also because of the structure housing the stairs.
10. Third, the eye of any observer on the deck is generally likely to be drawn toward the attractive outlook toward the river, to the south and southwest, and thus less likely to be attracted, in any casual observation sense, to observing what might be occurring in the living space of the neighbouring dwelling.
11. These three factors are, in themselves, sufficient for the conclusion that I have reached on this aspect of the as constructed dwelling.
12. It is, however, appropriate to note that there are two other matters that reinforce the conclusion that I have reached. The first is that this deck space is one which is located on a bedroom level and would not ordinarily be expected to be heavily trafficked. Second, for the reasons discussed in a later section, the likelihood of the deck being opened up as a very extensive outdoor entertainment area (by the removal of the purported "garden bed" structure observed during the course of the first site inspection) will be rendered impossible by the requirement to erect, fill and vegetate a permanent garden bed of the dimensions depicted in the 2008 development consent plans at the location depicted in those plans.

The awning on the eastern facade

1. There are, initially, two observations to be made concerning that which is able to be envisaged arising from the 2008 development consent plans as they relate to awnings at this location. These are:

• The awnings that were approved on those plans were not a single, continuous awning as has now been constructed; and
• The width of the single awning as constructed is greater than the width of the two awnings as approved in 2009.

1. It is not possible, on my assessment, to make any precise determination of the thickness of the awnings contemplated by the 2008 development consent plans.
2. The single awning as presently constructed is 1150 mm wide and runs the full width of the eastern elevation of the building immediately above the windows and door of the kitchen on the middle level of the dwelling.
3. At the time the structure was inspected by Mr Nash in late 2012 and during the course of the Court ordered inspection on 25 July 2014, the upper face of this awning was horizontal. This is clear from photograph 22 in Exhibit 12 reproduced below:
4. When I undertook the first site inspection on 14 August for the purposes of these proceedings, the upper face of this awning had been modified so that it now sloped away from the building.
5. The state of the awning as seen on the site inspection on 14 August can be understood from two photographs taken by Mr Nash during the course of that inspection. These photographs formed part of Exhibit 5 and were photographs numbered 13 and 14 in that exhibit. The first off these photographs is taken obliquely from somewhere in the vicinity of the top of the staircase leading to the landscaping area above the retaining wall toward the north eastern boundary elements of the site. It clearly depicts the angled nature of the upper face of this awning as observed during the Court's site inspection. This photograph is reproduced below:
6. The second of the two photographs is taken from the tiled deck area adjacent to the swimming pool. It is taken, self-evidently, directly toward the dwelling and shows, at the level from which the photograph was taken, the windows to the kitchen and the glass doors providing access to it. Immediately above the awning are two windows - each of which serves a bedroom on the uppermost level of the dwelling.
7. What is not clear from either of these photographs is that, although the vast bulk of the solid external wall structure at this level is constructed of masonry, the section below each of the bedroom windows at the uppermost level shown in photograph 14 is of lightweight construction.
8. In the context of these observations, it is appropriate to note that the two infill panels and the sloping element on top of the slab form part of that which is relied upon by the applicant as providing a proper basis for directing the issuing of a building certificate.
9. The Council objects to these two lightweight infill structures and to the width of the awning slab. In essence, in combination, the Council puts the following propositions, as I understand it:

• The lightweight infill elements underneath the windows are a sham and they and the windows are designed to be easily removable (and are intended, in the future, to be removed) so as to permit the installation of some form of door structure similar to that of the kitchen below to provide access to this awning;
• Whatever structure has been attached to the awning to cause it to slope away from the building is a sham designed to conceal the fact that the awning is intended to be used as a balcony; and
• The width of the awning and its construction across the full width of the eastern elevation is only consistent with the conclusion that it is intended to be used as a balcony as the continuous nature of the awning and the extent of its width are unnecessarily large (in each dimension) when compared with what might have been necessary to provide appropriate shading to the windows and door below.

1. It is the Council's position that there are two steps necessary to be required to address what the Council says is the near inevitable certainty that:

• The windows and infill lightweight panels would be removed;
• Whatever structure has been installed to slope the uppermost surface of the awning would be removed with that face returned to being horizontal; and
• A balustrade would be installed thus rendering the awning as a balcony.

1. Such a balcony would, in the Council's case, have unacceptable privacy impacts on the rear private open space of the adjacent dwelling to the south. The Council's position was that the past conduct of Mr Ross as the guiding mind of the construction of the dwelling would be continued into the future because of his relationship to the applicant even though he was no longer the legal owner of the site. The past behaviour of Mr Ross, the Council says, should be taken into account so that it is appropriate to require steps to be taken to ensure that the future use of this awning as a balcony is rendered entirely impossible.
2. To this end, the Council proposes that, as a necessary precursor to requiring the Council to grant a building certificate, I should require the applicant to:

• Remove the lightweight infill panels underneath each of the bedroom windows and replace them with masonry consistent with the remainder of the structure of the dwelling; and
• Require the cutting back of the awning to a width that would render it impossible to be used as a trafficable area however it might be accessed.

1. It is my understanding that the Council's position is that both of its proposed remedial measures need to be implemented as a package and that, if I were to conclude that the Council's view about the likely future use of this awning was well-founded, implementation of both measures was necessary, in some form of "belt and braces" approach, to ensure that the anticipated unacceptable use could never occur.
2. Mr Ross's closing submissions (paras 30 and 31) on this element were in the following terms: In a similar category is the eastern awning which whilst it is acknowledged that it is a mandatory statutory requirement for BASIX and is accepted as serving structural purpose and cannot be accessed except by climbing through windows. The mere cynical suspicion that this awning has the potential to be converted into some form of balcony by the removal of the windows and replacement with doors and all of the associated building work is sufficient to ground an argument for its removal and masonry construction of infill so as to make this creation in the minds of the council a more difficult task. The absurdity of this argument is demonstrated from the commonsense observation that someone who is sufficiently determined to take on this rather major undertaking will not be deterred from that intended course any more by a masonry infill in place of a conventional 'blueboard' infill.
3. There are three substantive matters, in my assessment, that require consideration on these interlinked issues. They are: 1. The first comprises matters raised by Mr Ross in response to the matters raised by the Council with these being: 1. The necessity for Basix compliance shading of the glazing to the kitchen area; 2. The functionality and appropriateness of the lightweight infill panelling under the windows; and 3. Rejection of the proposition that the infill panelling and sloping on the upper face of the awnings should be regarded as a sham. 1. The second matter that arises does so in the general context of the structural engineering evidence given by Mr Leedow and what might be necessary to be undertaken to cut back the awning in the fashion proposed by the Council and such conclusions as I might reasonably draw from that evidence of the realistic possibility of actually being able to achieve such an outcome. 2. The third matter is the extent to which it is permissible and appropriate to have regard to past conduct arising out of or in relation to non-compliant construction on the site in order to inform me as to whether or not, if either aspect of the structures as erected were permitted to stay and be encompassed by a building certificate, I could be confident that they would remain in the form observed (and depicted in the photographs) rather than being converted into the balcony in the fashion the Council fears likely will occur.
4. Additional context in this regard is provided by the joint report of Mr Turrisi and Mr Nash in the s 96 proceedings (Exhibit K). This report records, on this topic, the following: 2.2.1 The unauthorised balcony/awning should be cut back to 300 mm and the windows to the bedrooms on the second (upper) level eastern facade should be in filled to 1200 mm sill height with masonry, thereby returning the windows on the eastern facade to that reflected in the approved plans. The concrete awning off the roof level that is above the awning to the second floor is also to be 300 mm.

• The Basix certificate provides for a width of awning above these windows needing to be of 900 mm;
• The two awnings (now subsumed in this single constructed awning) approved in the 2008 development consent plans were to have been 600 mm wide; and
• The as built plans (Exhibit F) show that the single awning as constructed is 1150 mm wide. Mr Nash, in his marked up version of the as built plans (Exhibit 6) does not dispute the accuracy of this depicted width as built.

1. As a consequence, it would be possible to require the cutting back of this slab by 250 mm whilst still leaving a sufficiently wide awning to ensure shading compliance with the Basix certificate.
2. Although, for the reasons set out below, I have concluded that it is unnecessary to require any cutting back of this awning, I observe that cutting back to the maximum extent that would be consistent with the shading requirements of the Basix certificate would not achieve the outcome sought by the Council (as, if such a cut back slab were to become a Juliet balcony with a width of 900 mm, it would not be regarded as unusually narrow).
3. Second, with respect to the lightweight structures beneath the bedroom windows, I have no evidence, in terms of the functional adequacy element of the first test in Ireland (No 2), that that which has been installed below the windows is constructed to fulfil its functional purpose of rendering those two rooms appropriately protected from the elements.
4. It is clear that, in proceedings such as these, there is no presumption of regularity or fitness for purpose arising with respect to any element constructed for which a building certificate is sought (see Ireland No 2).
5. With respect to these infill panels, absent specific evidence of their fitness for purpose when compared to the immediately adjacent masonry wall elements, prudence dictates that it is appropriate that they being replaced with masonry construction consistent with the immediately adjacent areas.
6. In reaching this conclusion, I note that requiring this will also address the issue raised by the Council of the potential for these panels and the windows above them being replaced with doors as part of any conversion of the awning to a balcony. Whilst this consequence may well effect that which the Council seeks concerning the slab (given my conclusion that there should be no interference with the slab itself), the primary reason why it is appropriate to order the placement of these infill panels is the lack of evidence of their fitness for purpose. However, given the additional length and width of the awning slab and the fact that any balcony that might utilise that slab would have an unacceptable overlooking impact on the private open space of the dwelling to the south, the desirability of preventing the possibility of such a use also contributes to and provides additional support for the requirement to replace these infill panels with masonry.
7. Mr Ross suggested, in passing, that the sloping surface on top while this awning slab might have been installed to protect services that were located on top of the slab although there is no indication in any photograph in evidence that this might be the case.
8. On the other hand, it is the Council's position, as I understand it, that this sloping surface is a readily removable artificial element simply designed to create the visual impression that the awning slab could not be used as a balcony. The second element to the Council's position on this point was that the Council suggested that I should believe that it was the applicant's intention that this be removed as part of the creation, as Council anticipates it, of a balcony on top of the slab.

Proportionality and the eastern awning

1. Even had I not reached the conclusion set out in the preceding section of not requiring cutting back of this awning slab and leaving the present sloping surface on the eastern awning below the windows (subject to the possibility of ongoing conditions imposed pursuant to s 149F(3)(c) requiring the retention of those features), the additional element of proportionality of outcome would have, in my view, dictated that this outcome was appropriate even if the balance might otherwise have been in favour of requiring the cutting back of the awning.
2. The likely cost of replacing the lightweight infill panels with masonry and making them good is, at most, a triflingly and marginal matter in this context.
3. During the course of his oral evidence, Mr Leedow was questioned by Mr Ross, in particular, about what might be necessary if the eastern awning had to be cut back. The relevant portion of his evidence has been reproduced earlier.
4. It is clear from the fact that Mr Leedow had not contemplated that there might be a false ceiling in the kitchen with services above or that the likely cost of these works to ensure adequate rigidity in any cutback slab are likely to be significant (whether or not there is a false ceiling).
5. Whilst I pay no heed to Mr Ross' suggestion that it might be necessary to move the staircase serving the uppermost level from the middle level (to the location originally approved) with the resulting significant reconstruction of the kitchen and the room above as presently installed, there is no doubt in my mind that the requirement to cut back the eastern awning would be likely to involve costs significantly disproportionate to any potential impacts proposed to be cured by the cutting back of this slab - particularly with access being denied by the requirement for masonry infill below the windows and the awning to be required to remain sloped.
6. When coupled with the general evidence from Mr Leedow earlier described concerning liability disclaimers and the conclusion that I have reached on that position as a general proposition relating to cutting back of any of the concrete slab elements, it would be entirely unreasonable to go beyond the replacement of the infill panels under the windows with masonry coupled with the retention of the eastern awning sloped upper surface.

Past conduct as an indicator of future behaviour

1. I have earlier discussed this topic in the context of Jonah v Pittwater. There is no impact of the activities considered in this element of the as constructed dwelling that, itself, causes impacts on the neighbouring property to the south. The replacement of the infill panels with masonry, although not primarily required to prevent the slab being used as a balcony but for construction adequacy reasons, will however also have such a preventative effect (although not required for this purpose). I have paid no regard to the Council's submission concerning past behaviour in my assessment of this aspect of the dwelling as there is no proper basis to do so.

The enclosure of the undercroft area on its southern side

1. The undercroft area at the rear of the ground floor is under the kitchen on the middle level and is of dimensions somewhat larger than a double garage. It is dimensioned from the "as built" plans (Exhibit F sheets 02/09 and 08/09) as being 7.3 m (E/W) x 6 m (N/S) and as having a height from slab to slab of 3.1 m.
2. There are two apertures in the southern wall of this space with those apertures providing access to the side setback along the southern edge of the dwelling. This side setback area terminates, at its eastern end, at the foot of masonry retaining walling some ~2.5 m high located at a point roughly equivalent to the internal eastern retaining wall of the undercroft area. This southern setback is also proposed to be able to be accessed by a short flight of steps (not yet constructed) leading down from the front deck area of the ground floor of the dwelling.
3. From my memory of the initial site inspection, the hot water service and the air-conditioning equipment for the dwelling are located within this setback somewhat to the west of the two apertures.
4. This side setback is compliant with the relevant controls.
5. During the course of the s 96 modification proceedings, Mr Nash and Mr Turrisi set out, as the first portion of 2.2.2 in Exhibit K, their conclusion concerning what changes they agreed were appropriate to be required to render this undercroft area acceptable for approval. The relevant portion of the report reads: 2.2.2 It was agreed that the openings to the southern elevation of the undercover area, to the rear, shown as open space on the ground floor plan, are to be enclosed with a masonry wall, with the exception of a standard 820 mm door that that allows access to the side boundary. This door being provided in the larger of the two southern openings.
6. During the course of the first site inspection and during his cross-examination, Mr Nash indicated that the reason why he considered that it remained appropriate that the measures set out above should be required was to provide acoustic protection to the neighbouring property to the south from activities that might take place in the undercroft area. Of particular concern to him was the possibility that this area might be used as a garage capable of housing two vehicles (other issues arising concerning this hypothesised use are discussed elsewhere) but that the concern of potential acoustic impact was also one arising generally from potential use of this area.
7. The undercroft area is, at the present time, accessed from the dwelling by a sliding glass door with the remainder of its western face being masonry. The eastern face comprises the masonry retaining wall (at the interface at the level above, between the kitchen wall and the outdoor swimming pool area). The floor of the undercroft is a concrete slab as is its roof. The retaining wall along the northern boundary of the property at this point is of a similar height to the undercroft as is the continuation of the eastern retaining wall incorporating the stairs leading to the pool area.
8. I discuss, elsewhere, the matters that are proposed to be required to ensure that this undercroft area is not capable of being used as a garage. It is not necessary in my consideration of the apertures in the southern wall of the undercroft space to deal with that further.
9. For the purposes of this discussion, I assume that the undercroft space is not able to be and is not proposed to be used as a garage. This assumption, however, does not remove the necessity to consider the potential of whether or not adverse acoustic impacts may arise for the southern neighbours unless the measures agreed to by Mr Nash and Mr Turrisi are implemented.
10. In this context, although there is a fence in excess of 2 m in height along the southern boundary adjacent to these apertures, the height of the fence would not provide, in my assessment, adequate acoustic shielding for the neighbouring property if there were to be any significant noisy use of this area of any type. The applicant has not provided any evidence on this point whatsoever.
11. Whatever Mr Nash's suspicion concerning a possible garage use of this space, it is clear that that noise through these apertures could adversely impact on the areas of the property to the south. An examination of the relevant plan (Exhibit F sheet 01/09) showing the comparative locations of the two building footprints confirms this possibility.
12. There is a wide variety of noise generating activities that might be undertaken in this space. To give but one example, the undercroft would be a highly attractive outdoor wet weather play area for children and such activity is potentially generating of significant noise.
13. The nature of the surrounding surfaces (all being of concrete or masonry or the glass door to the dwelling) provides no acoustic attenuation benefit if there were to be noisy activities within this space. The agreed position between Mr Nash and Mr Turrisi from the s 96 proceedings joint report remains undisturbed following the evidence given by each of them in these proceedings.
14. As a consequence, I have concluded that it would be appropriate to determine that no building certificate should be granted unless the enclosure measures outlined in the s 96 joint report are implemented. This conclusion is drawn on the assumption that the undercroft space will be rendered incapable (by measures dealt with elsewhere) of being accessed for use as a garage. If this position were to change (whether on an approved basis or not), the imperative to protect the southern neighbours from vehicle noise would merely act to reinforce the necessity for the enclosure measures discussed.

Overshadowing of 6 Bayview Street

1. A portion of the cross examination of Mr Nash during the first phase of the proceedings was devoted to whether or not the upper level of the as-built structure caused any additional overshadowing impact on 6 Bayview Street, the residence immediately to the south of the site. It was Mr Nash's opinion that one element of the structure as actually built, at its upper level, would cause a different and more impacting overshadowing of the adjacent property at noon on 21 June (the winter solstice used to define the maximum shadow impact as the sun is the lowest in the sky during that date).
2. The only shadow diagram in evidence is one that was part of the 2007 development application plans. It is of no assistance in assessing the shadow from the as built structure (even if it was accurate - a position from the state of the Cheap-A-Plan drafting earlier being in significant doubt).
3. It was Mr Nash's evidence that the relocation of the stairwell between the middle and the uppermost levels - from its location at the more easterly point depicted in the 2008 development consent plans to the as-constructed location at a point commencing ~ 5 m to the west of what had been intended to be the western wall of its location and extending to a location ~ 3.5 m further to the west - would increase the overshadowing of two skylights in the lower northern roof plane of the property to the south. Given my conclusion on this point, it is unnecessary to set out the terms of Mr Ross' questioning and Mr Nash's responses on this point.
4. During the course of the site inspection, when examining what is now the insert balcony between the upper level staircase and the wall of what is now the additional bathroom at the uppermost level, Mr Eastman specifically asked me to observe the two skylights on the neighbouring property to the south.
5. From a vantage point adjacent to the masonry balustrade to this inset balcony, one could look obliquely to the southeast toward these skylights. I particularly noted that each of them appeared to serve rectangular light wells below. To the limited extent that it was possible to look down either of those light wells, it appeared that, contrary to Mr Ross' assertions from the bar table (which are not, to any extent at all, evidence in the proceedings), they were likely to transmit direct sunlight to the spaces below - spaces about which I have no knowledge of their use.
6. Although Mr Ross suggested that these skylights have translucent or opaque upper apertures and are simply reflecting tube-type skylights, that is expressly contrary to my recollection of them from the site inspection.
7. The overall state of the evidence on this point was unsatisfactory. It is possible that the relocation of the staircase, from its approved location in the 2008 plans to where it has actually been constructed, has had some minor adverse amenity impact on the residence of the property immediately to the south.
8. However, if this position is correct (and there must be some doubt that this is the case because of the lack of precision of the material on this point), any such impact is likely to be a trifling and certainly could not support any possible consideration of requiring any intervention with the as built structure elements that might cause it. Contemplation of intervention (such as requiring the removal of the staircase between the middle and uppermost levels and its reconstruction at the location shown in the 2008 development consent plans) would be entirely disproportionate and would be so unreasonable as to fall foul of the principle in Wednesbury.

Bulk and scale when viewed from the south

1. During the course of the first phase of the hearings, Mr Nash gave evidence on the presentation of the dwelling to the street when viewed from directly in front in Bayview Street. His evidence was that, from this location, the dwelling presents as a two-storey dwelling with a semi-basement garage. This is, in my assessment, a correct assessment of the direct streetscape presentation of the dwelling.
2. There are, in my view, two reasons for this - not merely the sole reason discussed by Mr Nash of the uppermost level structure being set back significantly from the levels below. Whilst this is undoubtedly a significant aspect contributing to the direct presentation to the streetscape, there is a second, reinforcing, contribution to this street-viewed image of the dwelling. To assist understand that which follows, it is appropriate to reproduce, again, the frontal photograph of 8 Bayview Street in Exhibit H:
3. This second aspect is caused not only by the awnings at the uppermost level but also by the masonry balustrade at the western edge of the uppermost slab. This balustrade takes on the visual appearance of a parapet by eliminating any direct frontal view of the habitable structure at the uppermost level.
4. This effect is ensured by the distance the outermost edge of the southern element of the slab at the uppermost level extends towards the street. A comparison of the relevant plans (either Exhibit 6 or Exhibit F sheet 04/09 against Exhibit R plan 4) shows that the outermost edge of the southern portion of this slab as constructed is at a location approximately 2.5 m further forward, toward the street, than the location that was approved in the 2008 development consent plans. The balustrading of this element is predominantly (but not entirely glass) but nonetheless the slab extension permits the masking of the structure behind. Despite the assertion (dealt with later in dealt) that this glass balustrading is appropriate to act as a retaining structure for the "garden bed" if approved at this further forward location, the small masonry elements to this portion of the balustrading form part of the parapet effect.
5. As a consequence, that additional western extension of the balcony slab and its surmounting masonry balustrade elements (coupled with the effect of the slope of the land from the rear of the allotment toward the road) render the uppermost level of the dwelling invisible when viewed from Bayview Street.
6. I am satisfied that, in this context, it is unlikely that an observer on the western side of Bayview Street, if looking toward the site and had the uppermost level balcony slab been constructed as approved, would have had any (or if any, insignificant) perception of the uppermost level structures when viewed from that location.
7. The fact that the head of Bayview Street, effectively, coincides with the northern boundary of the property, means that there is no effective streetscape presentation of any significance, when viewing the northern elevation of the dwelling, an elevation that, with the exception of the extent of the westward protrusion of the uppermost level balcony slab remains generally consistent with (but not identical to) that which was approved in 2008.
8. As a further consequence, I am satisfied that, from the northern and western perspectives, there is no adverse bulk and scale presentation to the streetscape aspect of that which has actually been constructed as far as the built form of the habitable spaces on the uppermost level are concerned (setting aside, for the purposes of this discussion, the question of the extent toward the west of the constructed slab at the uppermost level and its surmounting masonry balustrade when coupled with the western awnings might create unacceptable bulk and scale from a direct street view perspective - that being a matter for separate consideration).
9. The same conclusion, however, cannot be drawn with respect to the presentation of the built elements of the uppermost habitable level when viewed in a streetscape context approaching from the south in Bayview Street, uphill toward the head of the cul-de-sac.
10. I viewed this presentation of the structure on the site during the course of my arrival on foot up Bayview Street to undertake the first of the two site inspections. That which is constructed on the site is prominent in the streetscape. It is prominent, in my view, for three distinct reasons. These are:

• The structure is located on the high side of the street;
• As a consequence of the original cross slope toward the south, a cross slope that continues down Bayview Street from the site to its neighbours to the south, the structure is significantly bulkier than those other neighbouring structures to the south (and would have been so even if the uppermost level had been constructed as approved); and
• The insertion into the southern elevation of the structure housing the stairs leading from the middle to the uppermost level at a location finishing some 9 m or so further to the west than what had been proposed as the westernmost wall on the southern elevation adds a distinct, new and unapproved element to the bulk and scale of the structure overall. This is compounded by the fact that the open balustrading approved along the southern side of the deck at the uppermost level was to have been of open construction rather than of masonry as constructed.

1. Although the first two elements do not constitute anything that requires further examination as a result of these proceedings, that is not the position with respect to the relocation of the staircase.
2. The impact of the structure that houses this staircase is joined to that element of the southern facade of the building by a ~ 1 m high masonry balustrade. That balustrade completes the enclosure of a now insert balcony element that has the western wall of the approved structure (at a slightly more easterly location than originally approved but with a buttress at its southern end so there is no visual distinction when viewed when approaching along the street from the south); full height glass doors and glazing to the northern wall of this balcony (not materially different, in appearance, from that in the 2008 development consent); and the eastern wall of the structure housing the stairway from the middle to the uppermost level.
3. The effect of the structure housing the stairs and this linking masonry balustrade is to be contrasted with that which was originally approved at that level. The 2008 development consent envisaged that there would be an element of the uppermost level balcony to the west wrapping around and continuing along the southern side of the uppermost level until it reached the location of the western wall (at the location of the present buttress).
4. The precise nature of the balustrade of this southern, wraparound section of the balcony is not specified with precision on the 2008 development consent plans. Nonetheless, it is clear from what is depicted on those plans that that which was envisaged as the balustrade along this wraparound section of the deck was a balustrade that was visually permeable and would not present, to an observer from the south, as a solid, impenetrable structure. This is to be contrasted with that which is presently observable, a visually solid continuous structure to ~1.0 m in height from the western extension of the stair housing structure through to the buttress with the more western element of this structure rising a further ~ 1.5 m high and extending ~ 3.0 m along.
5. This, in turn, is compounded by the fact that the balustrade to the slab of the deck along its southern edge extends at a metre or so in height to a point beyond the approved outermost edge of this slab in the 2008 development consent plans. I note, in this context, that the additional further glass balustrade beyond that point makes no bulk and scale contribution from the south (although the nature of this balustrading does require consideration and analysis in another context dealt with later in this decision, namely the extent and proposed use of the concrete slab at the uppermost level).
6. The contribution of the unbroken masonry form of the balustrades and the lower portion of the stair enclosure, coupled with the protruding upper element of the stair enclosure makes a significant and adverse contribution to the bulk and scale of the presentation of the building in its streetscape context when viewed arriving from the south. The only remedy for this streetscape impact would be the removal of some or all of these masonry elements.

Setbacks

1. The photograph of 8 Bayview Street reproduced earlier from Exhibit H demonstrates the visual prominence of the awnings above the ground and middle floor levels on both the western (streetward) and northern facades of the dwelling.
2. During the course of the final days of cross-examination of Mr Nash, Mr Ross asked him a series of questions concerning the Council's controls as to the minimum setbacks from the front building alignment (7.5 m) and side boundaries (1.5 m). Mr Nash conceded that the awnings on the western and northern facades were compliant with these setback requirements and, as I understood Mr Nash's evidence, he conceded that the awnings on the northern facade were setback, in their context, significantly further than the minimum side setback required.
3. Mr Nash also conceded that it would have been possible for a building some 2 m or so wider to have been erected on the site and still remained compliant. Although Mr Nash made this concession, I merely note it as I do not consider that anything of relevance in these proceedings turns on that point (see discussion elsewhere concerning the role of building envelopes).

The merit considerations of the northern and western awnings

1. Three witnesses gave evidence concerning the presentation and role, in a design sense, of the northern and western awnings. That evidence was given by Mr Nash, on behalf the Council, and Mr Turrisi and Mr Sweeney on behalf of the applicant. Mr Nash and Mr Sweeney were present during the site inspection on 14 August whilst Mr Turrisi acknowledged, in his oral evidence (transcript of 18 November) that he had only visited the site once and that that visit was in preparation for the s 96 modification application appeal dealt with by Dixon C.
2. The awnings at the uppermost level can be seen on the plan below at the locations marked in red by me. Mr Ross made it clear during the first site inspection that it was intended to install lightweight metal louvres in the gaps of these awnings. Whether not this remains the applicant's intention is an irrelevance in these proceedings as they are not presently installed and are not part of the building certificate application.
3. It is important in understanding the following discussion concerning these awnings what has been the evolution of the presentation of the northern and (particularly) the western facade of the building. At the time of the proceedings before Dixon C, the uppermost level of the building had not been substantially constructed. In particular the masonry balustrade surrounding the northern and much of the western portion of the "garden bed" had not been constructed. The awnings, however, had been constructed. The presentation of these awnings, in a streetscape context, can be understood from photograph 19 in Exhibit 14. This photograph was taken by Mr Nash during a site visit by him in December 2012 in the context of the proceedings before Dixon C. That photograph is reproduced below.
4. With respect to the awnings as they then presented to the west, Mr Turrisi made no specific comment in his s 96 proceedings statement of evidence (Exhibit M). The only potentially relevant comment - the first sentence on page 4 - provides little assistance on this issue. The comment is in the following terms: The proposed development as presented to the street, in terms of bulk and scale, remains largely as originally approved noting that the building in my opinion retains the three/four level appearance.
5. In addition, in the joint report prepared by Mr Turrisi and Mr Nash for the proceedings before Dixon C, their disagreement about the awnings and whether or not they should be removed or significantly modified was dealt with in the following terms (Exhibit K at 2.3): Mr Nash has requested that the awnings to the front be removed as it adds visual bulk to the development. Mr Turrisi is of the view that the awnings add interest to the building and helps articulate the built form. Mr Turrisi notes there were previous awnings approved, be it not as a continuous form as now proposed.
6. I now turn to the position that exists for the purposes of this hearing. I have two photographs in evidence that show the contrasting current position of the presentation of the building to the street with not only the awnings in existence as they were in December 2012 but also with the uppermost level of the dwelling completed and the solid masonry balustrade element on the northern edge of the upper deck and across much of the western edge of the deck now being in place. The first of these photographs is reproduced above.
7. A further, current photograph that provides stark contrast to Mr Nash's December 2012 photograph appears in the Exhibit 12 at photograph 32. This photograph is reproduced below:
8. In his written statement of evidence in these proceedings (Exhibit 4) Mr Nash expressed his opinion concerning the appropriateness or otherwise of these awnings (Exhibit 4 page 11) in the following terms: The projecting non-structural concrete elements (awnings) at the front and northern elevations, coupled with the reduced front setback, also contribute to the visual bulk of the building when viewed from the street and adjoining properties.
9. During the course of his oral evidence, Mr Nash was cross-examined extensively by Mr Ross on these opinions. It is, in my view, unnecessary to reproduce that material. Despite the fact that Mr Ross' cross-examination of Mr Nash was vigorous, Mr Nash's evidence about what he considered to be the unacceptable bulk of the awnings in their presentation to the streetscape was unshaken.
10. The second tranche of evidence concerning the current position of the awnings in their presentation came from Mr Sweeney, an architect who attended the site inspection on 14 August and whose written statement of evidence became Exhibit B. Mr Sweeney expressly wrote about the presentation and utility of the awnings as an architectural design feature of the building. He did so in the following terms: Contention 11 C (ii) delete concrete awnings on the northern and western faces of the building 1. As noted above Exempt and Complying Development Code legislation applies to the land The suggestion that these awnings are to be completed removed without reference or discussion to exempt development and whether these can be modified to satisfy the provisions and definition could be viewed as punitive Where there is continuous glazing or openings it follows that the awnings above can also be continuous To me the only issue is whether the area of each awning exceeds 10 sqm and whether the definition prohibit these wrapping around the NW corner- they are not solid at this location I believe with some modification the awnings can be made so the satisfy the exempt development definition. As noted above the code definition does not restrict the use of concrete or it's vertical depth. 2. This is not environmentally sound as BASIX compliance would no longer be achieved On similar projects openings facing north and west require about 700-900 mm of horizontal sun protection at the opening head position-1 have asked a BASIX consultant for comment and how this can better substantiated Replacement of the existing openings glazing system and/or installation of external shutters to provide the same functions as the as the existing awnings is environmentally detrimental and contrary to Council's own LEP & DCP preferred outcomes Removal of these shade devices will lead to environmental outcomes not consistent with the intentions of BASIX which is mandatory in NSW 3. Removal of the awnings will create higher visibility of the vertical concrete support columns. Removal of the horizontal concrete awnings on the north and west facade will emphasize the vertically of the concrete support columns and also emphasize building height The horizontal bands of the awnings actually assist in reducing the perceived building height Architects and designers common use building elements such as these to manage or reduce the perceived building bulk 4. Removal of the awnings will detrimentally impact the overall building design. The property is one of the better designed dwellings in the street and it's hard to believe this was not architect designed. It is a modern and competent design celebrating both the site & topography- particularly the views. The horizontal bands of the concrete awnings are a dramatic, effective and integral design element They also help to create and maintain a peripheral and intermediate zone which adds to the design amenity. A bald faced building such as is now proposed will fail to provide the same level of visual relief to the street façade. I don't accept that their removal will reduce the building bulk- it will produce the opposite outcomes. Further, to remove these would be akin to removal of one's eyebrows, nose and ears producing a significant disfigurement- no reasonable intelligent person would to agree to this Why would it be acceptable to propose to do the same to a building design which is a creative work In short I believe these devices assist the design and their removal will create adverse impact to building bulk and street scape- again contrary to Council's own LEP and DCP outcomes
11. Although Mr Ross had indicated that Mr Sweeney would attend to give evidence as he had been required for cross-examination by the Council, at that time he was scheduled to do so, he was not present in Court. I had the court officer call Mr Sweeney, three times, in the immediate precinct of the Court but the call was not answered. As a consequence of this, I am left to interpret Mr Sweeney's evidence, as best I can, purely from the written word.
12. It is clear, from the relevant extract from his written statement, Mr Sweeney considers that the awnings are a highly desirable design elements of the building. Indeed, the rhetorical flourish of comparison with human facial features makes that, in my view, abundantly clear. What is equally clear, in this context, is that Mr Sweeney is addressing only the design attributes of the awnings and the extent to which they provide relief to and a visual breaking up of the vertical facade of the dwelling on the northern and western aspects.
13. Mr Turrisi's view was to similar effect, from a planning perspective, as earlier set out in the extract from Exhibit K. In addition, Mr Turrisi's his oral evidence on this point (transcript of 19 November) also makes these clear. His oral evidence on this point is in the following three transcript extracts (these are separated extracts as procedural and other irrelevant interventions have been omitted). The first extract is from page 38 at lines 16 to 31. It is in the following terms: ROSS Q. Mr Turrisi, I'd like to show you a report before I - Mr Turrisi, in your urban design are you qualified to comment on issues of massing, bulk and scale? A. Well I'm not an urban designer. As a planner I have view as to what is appropriate from a bulk and scale perspective. Q. In your opinion the awnings act as a tool to reduce bulk and scale, would you - is that a correct-- A. Well, in this particular matter when I was giving the evidence I felt that the awnings actually contributed in actually helping articulate the bulk and the form of the development. Q. So in your opinion the awning served to reduce the bulk and scale if anything? A. They help articulate the building.
14. The second extract is from page 43 at line 12 to page 44 at line 8. The contention to which Mr Ross refers at the commencement of the extract is the Council's proposed requirement to "Delete existing concrete awnings (described as "awning below and above") on the northern and western faces of the building." This transcript extract is in the following terms: ROSS Q. Can you read through that document, contention 11C(ii). A. Yep. Q. It says, "Delayed concrete awnings on northern and western face of the building." A. Yes. Q. Is that the same contention that you addressed in your previous report, which we have been talking about extensively now? A. They appear to be the awnings which I was referring to in my evidence. Q. I want to look at point 3 on page 3 of Mr Sweeney's report. Mr Sweeney says, "Removal of the awnings will create higher visibility of the vertical concrete support columns," and the next two lines, "Removal of the horizontal concrete awnings on the north and west façade will emphasise the verticality of the concrete support columns, and also emphasise building height. The horizontal bands of the awning actually assist in reducing the perceived building height, such as these to manage or reduce the perceived building bulk." Is there anything of those few lines, Mr Turrisi, that you do not agree with? OBJECTION. REPETITION. LEGAL ARGUMENT. QUESTION ALLOWED WITNESS: There is nothing in there which I see contradicts my view in my evidence, in that it assists in the articulation of the built form. ROSS Q. So you would endorse those comments? A. I've just said that. Q. Just making sure. The second last line of page 3: "A bald faced building such as now proposed will fail to provide the same level of visual relief to the street façade. I do not accept that their removal will remove the building bulk. It produces the opposite outcome." What do you say about that, Mr Turrisi? A. It's the same response to the previous question. Q. And what is that? A. That it helps articulate the built form.
15. The third extract is from page 44 at line 44 to page 44 at line 1. ROSS Q. I'll go then to the last line, "In short, I believe these devices assisted the design, and their removal would create an adverse impact to the building bulk and streetscape, again contrary to the council's own LEP and DCP." Do you agree with that line? A. I keep saying, I have supported those awnings for the reasons stated in my evidence. My position has not changed.
16. Although Mr Ross tendered (Exhibit S) a very short commentary extract concerning the stylistic use of horizontal elements in designs by the world renowned architect, Frank Lloyd Wright, it is of such generality and brevity as to be of no utility in these proceedings.
17. As a consequence, on this point, a significant (and determinative, in my view) aspect of the bulk and scale presentation of these facades and their attached awnings at the uppermost level has only been addressed in an oblique fashion without specific mention being made of it - although the two photographs reproduced above taken by Mr Nash from approximately the same location in 2012 and 2014 demonstrate why the positions adopted by Mr Turrisi in 2012 and Mr Sweeney in 2014 concerning (and confined to) the value of the awnings as architectural presentation elements of the building are not inconsistent with the broader view Mr Nash puts about the overall presentation of bulk in the streetscape.
18. This arises because, as I think is starkly demonstrated by a comparison between those two photographs, the element that renders the bulk unacceptable is, at the upper level, the combination of the awnings and the metre or so high solid masonry balustrade at the outer edge of the unbroken slab element to which the awnings are appended.
19. From the location of the photographs there is limited appreciation of the depth of the awnings and the current combined presentation of the leading face of the awnings and the masonry balustrade above and proximate to the awnings is of a substantial and largely a unrelieved vertical element along virtually the entirety of the relevant portion of the northern facade and, with a similar presentation, across the majority of the western façade.
20. The impact of this is also obvious from the more square-on photograph of the present aspect of the building in its streetscape as shown in photograph 1 of Exhibit H earlier reproduced.
21. However, Mr Turrisi's comments given in the s 96 modification application proceedings was based on a single inspection of the site in the context of those proceedings. That which was able to be observed by him at that time would, necessarily, have been confined to the view of the incomplete structure shown in the earlier of the two comparative oblique photographs. His oral evidence in these proceedings cannot not relate to the awnings within the context of completion of the rendered balustrade and the combined visual presentation of the awnings and the balustrade as now erected and finished. This is clear from the transcript extract reproduced below (19 November page 49 line 28 to page 50 line 39): <CROSS-EXAMINATION BY MR EASTMAN Q. Just in four short groups. The first is about what you've seen. So you just indicated that you gave an answer to a question about something that you saw two years ago. When was the last time you were at the site? A. Two years ago, during the last proceedings. Q. And what was the state of construction, was it partially complete, fully complete? A. No, it wasn't complete. My - I recall that the upper level was being built. I think it was around probably three quarters of the brickwork was being built at that time. Q. Is it right to say that your perception of bulk that you expressed in exhibit K, which is the joint report that you prepared with Mr Nash, was based on an assessment of plans rather than an assessment of the building as complete? A. I assessed on the basis of the plans before me, that's correct. OBJECTION. OBJECTION WITHDRAWN Q. You've not seen any as built plans for the matters the subject of the building certificate application in this case? A. Currently before? Q. Yes. A. No, I haven't seen it. Q. You don't really know what these proceedings are about. A. No. Q. The second question is just about the awnings. You've got the joint report with you; that is, exhibit K. A. Yeah. Q. Your conclusion in 2.3 - that is, on page 3 - was that it adds interest to the building and helps articulate the form. A. Correct. Q. It's not that it reduces bulk; there's a greater volume of material there as a consequence of the awnings. Is that right? A. Well, there's obviously additional mass and element, but it helps contribute in breaking up that façade. Q. So it can be larger, but it splits up the perception of what you see as being one large wall you're confronted with. A. Correct. Q. That's effectively the opinion that you've expressed in 2.3. A. That's correct. Q. Is it right to say that your opinion about bulk in 2.3 was informed by all the matters upon which you had otherwise agreed with Mr Nash and that are expressed in page 2 of the joint report? A. And the fact I was relying on an approval which already had approved a certain envelope, and so this was a section 96 which was altering that envelope. So the previous approval also had an influence on the way I looked at the site. Q. So can I take from your answer that, when you started the answer with "and", it means you're agreeing with my proposition and then giving a further qualification to it as well? A. That's right.
22. Similarly, although the evidence of Mr Sweeney earlier quoted was entirely positive concerning the awnings, it provides no discussion whatsoever of those awnings in the context, at the upper level, of the combination of the awnings and the balustrade. As earlier noted, although Mr Sweeney had been proposed to give oral evidence (a position, had it eventuated, that would have enabled him to be questioned about the combined streetscape presentation of these two elements - to the extent that he might have established he was qualified to do so - a position upon which speculation would be fruitless) he did not appear at the scheduled time and did not answer the court officer's call.. As a consequence, his evidence, too, must be seen as evidence dealing solely with the awnings and thus of very limited, if any, utility in dealing with the overall combined issue.
23. A planning report was provided to the Council in support of the s 96 modification application. This report by Que Consulting became Exhibit P. For the purposes of discussion of this bulk and scale issue, this document is of little assistance. The relevant element (on page 10 of the document) arises in the context of addressing controls in the DCP and is under the heading Part C1.7.2 - Building Design (Architectural Character and Articulation). It is in the following terms (with spelling, grammar and punctuation as in the original): The proposal seeks to alter the front elevation of the building by including additional window openings, and awnings. The front elevation of the building presents a contemporary symmetrical design, mixing lightweight glazing with concrete awnings containing voids (and louvers). The depth of these awnings are required to ensure adequate solar protection is provided to the western elevation window openings. A reduced awning depth will result in greater western afternoon sunlight penetration in the building. These aesthetic amendments is considered a contemporary response to the streetscape, and provides adequate articulation and interest to the streetscape.
24. Whilst this statement is entirely consistent with the written statement of Mr Sweeney and the evidence of Mr Turrisi, Exhibit P suffers the common defect with that evidence as it, too, does not deal, in any fashion, with the combination of the awnings and parapet effect at the uppermost level.
25. It is also relevant that this statement is dated 10 August 2012 and, therefore, to the extent that the un-named author of the document can be assumed to have undertaken a site visit for the purposes of preparation of the report, such a site visit can have only occurred when the uppermost level of the building was substantially incomplete as shown in the earlier reproduced photograph showing the 2012 position when contrasted with the comparative current photograph also earlier reproduced.
26. However, whatever the desirability or otherwise of the awnings as an integral feature, the overall streetscape presentation is, for the reasons earlier discussed, unacceptable. Given my reasons for concluding that an appropriate response to remedying this issue whilst, at the same time, addressing the issue of the planter box at the uppermost level, can be resolved by addressing the planter box in the fashion proposed, it is unnecessary to choose between the positions of Mr Turrisi and Mr Sweeney, on one hand, and that of Mr Nash, on the other, concerning the awnings simpliciter.
27. The unacceptability of the bulk caused by the uppermost level presentation to the streetscape is capable of being resolved in a fashion that also resolves another matter of significant contest, namely, the unauthorised extension of the deck slab at the uppermost level and the associated issues that arise from the sham "garden bed" installed at that level in dimensions significantly larger than the garden bed approved in the 2008 development consent plans.
28. I set out, in a later section of this decision, the steps that I consider are necessary to address the lack of structural certainty about the ability of that slab to support the additional significant weight of soil that would be necessary to be accommodated in a (properly, permanently constructed) garden bed of the dimensions are reportedly envisaged by the applicant as shown to me during the course of the site inspection.
29. Removing the risks arising from that structural uncertainty and addressing the sham elements of that "garden bed" (the 15 cm or so gap at the foot of the glazed balustrade that is held out as being an element of the outer retaining facade of the "garden bed" and the clearly temporary, inadequate and inappropriate blueboard structure held out as an appropriate inner retaining wall for this "garden bed") can be addressed by the construction of permanent masonry retaining walls for a garden bed at the location of those walls as envisaged by and shown on the 2008 development consent plans.
30. If this were to occur and all elements of the present balustrading to the west of this new masonry structure (whether those further forward elements were glass or masonry) were to be demolished and the area of the slab to the west of the newly constructed retaining wall on the western side of the now shrunk garden bed were to be rendered non-trafficable, the setting back of that new balustrading would, in my view, achieve an appropriate element of relief for the presently unacceptable bulk at the uppermost level in its streetscape presentation. This would achieve, in my opinion, the presentational outcome sought by the Council without the necessity to require the demolition of or any cutting back to the awnings themselves.
31. In addition, the issues of proportionality that arise in any contemplation of cutting back these awnings would be of even greater negative weight to such a conclusion than those arising concerning the eastern awning.

Bulk - the deleted 2008 plans entrance stairs

1. One of the matters that Mr Ross relied upon as an offsetting element on the question of bulk was the fact that the entrance to the dwelling as it has been constructed has resulted in the removal of the element of the 2008 development consent plans incorporating an external staircase from the pathway along the northern facade of the building to the location of the proposed front door to the dwelling. Mr Ross dealt with this during the course of his questioning of Mr Turrisi when he gave evidence. Give my comments that follow, it is unnecessary to set out the terms of this evidence.
2. For the purposes of my analysis of the presentation of the bulk and scale of that which has been constructed in its streetscape context, it should be clear (from my earlier discussion of what I consider to be the relevant photographs) that the unsatisfactory aspect of the streetscape presentation in this regard is the combination of the additional bulk of the awnings (particularly at the uppermost level) when coupled with the solid masonry parapet effect caused by the balustrade. Assuming, solely for the purposes of this discussion, that the applicant might install 800 mm in soil depth behind a glass balustrade, the presentation that that would also involve would compound that effect.
3. I readily accept that an element of bulk has been removed by the changes made to the front entrance. The Council now raises no objection to these changes to the entrance.
4. However, the removal of this bulk, although what might be regarded as "an item on the credit side of the ledger" in the broadest assessment on this topic, does not add a credit to the aspect that causes the unacceptability in the streetscape. Indeed, I do not consider that, had this staircase and entrance being construct that as originally proposed but installed, in some fashion as an element of the present general design, that its presence would have caused any exacerbation of the presentation unacceptability of the uppermost level, an unacceptability that arises for the reasons earlier set out.

The attitude of the northern neighbour

1. Mr Ross tendered a document (Exhibit Q) signed by Ms Dorman, the neighbour immediately to the north in which she expressed the view, amongst other things: I have now really seen the awnings and entrance to the house at No 8and am satisfied that they should stay exactly as they are.
2. Although this is of limited relevance when one considered in the broader policy framework of issues that arise concerning presentation of these awnings in their context, it nonetheless provides a modest degree of comfort for the approach that I have adopted in addressing the issue of the overall bulk and scale presentation to the street.

The "garden bed" at the uppermost level

1. I have earlier noted, in the context of describing the structural engineering evidence process, that I raised concerns in relating to the adequacy (or otherwise) of information concerning the structural capacity of the uppermost slab to support the "garden bed" within the dimensions now proposed. I have also noted the opportunity give to the applicant to call evidence on this and that I have drawn no adverse conclusion from the absence of such evidence.
2. However, Mr Ross also submitted, by necessary inference, that the Council should have retained and instructed Mr Leedow to deal a wider range of engineering issues (including this one) than it did. This misunderstands where the persuasive burden lies in proceedings such as these - on the applicant
3. For the purposes of this section, it is necessary to discuss the nature and dimensions of the proposed "garden bed" as now exists when compared to the dimensions of that which was approved in the 2008 development consent.
4. To commence this analysis, it is appropriate to reproduce portions of the 2008 development consent plans (Exhibit R); the s 96 modification application plans (Exhibit 4 appendix 4); the "as built" plans (Exhibit F); and the "as built" plans with Mr Nash's annotations (Exhibit 6) - this exhibit reflecting that which has, in fact, actually been built, rather than that which has been depicted in Exhibit F as having been built. These portions are of the element of the relevant plan for the uppermost level that includes the "garden bed".
5. As they are extracts from scans of the relevant plans, as with all other plans reproduced, they should not be used for scaling. They are: 2008 development consent plan (Exhibit R) S 96 modification application plan (Exhibit 4 appendix 4) "As built" plan (Exhibit F) Mr Nash's corrected as built plan (Exhibit 6)

The dimensions of the two garden beds

1. During the course of the second phase of the hearings, I invited Mr Nash to calculate the area of the garden bed footprint of the "garden bed" actually present on the uppermost level. The relevant extract from the transcript of 16 October records this in the following terms: SENIOR COMMISSIONER Q. Mr Nash, have you checked the area calculation of 32.63 square metres shown for the garden box and have you calculated the area of garden box shown on the as built plan with your supplementary marking as to the accurate location? A. I haven't, commissioner, but I can do that. Q. Would you please do so. A. Senior Commissioner, the area of the garden box shown on 0409 with the estimate of the extent of it as measured on the site visit, measured to the inside of the garden boxes, is an area in the order of 33.5 square metres, scaled from this drawing. Q. Yes. Go on. A. So that's that - I will show you what I have measured. Q. That's the as built plan? A. That's the as built plan. Q. Yes. Go on. A. So now I'll do it in terms of - do you want it as estimated by what's indicated by that-- Q. On sheet 28. A. On sheet 28. Q. As the approved area. A. Yes. Q. Which is marked as being 32.63 according to the plan. A. Yes. There is a number of dimensions, senior commissioner, on that drawing. I'm just checking to see. The dimension of 6.96 comes up as 6.6. Q. I'm asking you to assume the dimensions as enumerated are accurate. A. Right. So that's 3.96-- Do you understand what I have done, Mr Ross? ROSS: Yes. SENIOR COMMISSIONER: You have objected to the scale of the plans. I'm not asking you the scale, I'm asking him to work off the written dimensions. ROSS: That's fine, sir. It has been calculated there. It says 32.63. SENIOR COMMISSIONER: I have asked him to check whether that is accurate or not. WITNESS: I'm using the dimensions, Senior Commissioner, in all respects other than I have triangulated an area where there's no dimension and I have estimated - it measures two, so I have increased it to 2.2. You get a total of 25.28 square metres and that is measured to the inside of the walls, because the balustrade walls are dimensioned at .27. SENIOR COMMISSIONER Q. That is a difference on your calculations of 8.22 square metres. Is that correct? A. I didn't want to be bound by those calculations. Q. 33.5. A. Right, and this is one is 25.28, so-- ROSS: Sir, would you like me to go through the exercise and demonstrate that Mr Nash is wrong in his calculation or are you satisfied that he is wrong, because if the drawing says 32.63, I'm quite happy to accept that as being accurate rather than accept Mr Nash's-- SENIOR COMMISSIONER: I am not. That's why I asked him to calculate it. If you want to challenge the number, then you can calculate it and provide some basis for it. I have his evidence in the witness box that on his calculation, it is 25.28. ROSS: Right, and you accept that, sir, despite the evidence that's on the drawing. SENIOR COMMISSIONER: I am telling you-- ROSS: That's a rather bold view, sir, because Mr Nash's track record is measuring from a reduced size drawing. He reads a 2.4 metre door as a 3 metre door and the drawing says 32.63. SENIOR COMMISSIONER: I want you listen very carefully to what I say. I didn't say I didn't accept 32.63. I didn't say that I did accept 25.28. I have said that I have asked Mr Nash to calculate the area using the enumerated dimensions provided on the plan and he came up with a different number and I asked him to calculate from the supposed as built plans the area for that and he came up with an area of 33.5 square metres, the difference between the two being 8.22 square metres. All I have done at this stage, Mr Ross, is note his calculations which are given as evidence in the witness box. At some stage, I may well choose to apply my own mind to sheet 28 and the enumerated dimensions thereupon to undertake a calculation of my own and see whether the number should 32.63, 25.28 or some radically different number to both of them.
2. Although there was further questioning of Mr Nash on this matter on 15 October, it adds nothing to that quoted above and is not reproduced.
3. Mr Ross disputed the accuracy of these calculations with particular regard to Mr Nash's conclusion that there was a significant difference in the footprint as presently proposed when compared to the footprint of approved in 2008 development consent. The position adopted by Mr Ross was that the area annotated on the 2008 development consent plans of the approved garden bed having a footprint of 32.63 m² was an accurate one and that, as a consequence, there was no material difference between the originally proposed and the now currently sought to be approved garden bed footprint. Mr Ross returned to this topic toward the conclusion of Mr Nash's oral evidence. The relevant element of the transcript on 20 November (page 21 line 41 to page 25 line 4) is in the following terms: MR ROSS ………………………Going back to the approved drawing, you said that area garden box, based on the dimensions that were provided by the architect or Cheap-Al-Plans draftsperson was not, as specified, 32.63. A. It was 25.28. Q. It was 25.28. A. Yes. Q. I'm saying to you, Mr Nash, that the only dimensions that you can scale from includes, in fact, the wall or the surrounding - the wall thickness. A. That's right and that's dimensioned at 270 millimetres, so I have deducted that figure from it. Q. Just hear my question. I'm saying to you, Mr Nash, the calculation that is provided here includes the wall thickness. A. That's correct and it also-- Q. And if the wall thickness-- SENIOR COMMISSIONER: Let him finish his answer. ROSS: He has answered it. I haven't finished my question. SENIOR COMMISSIONER: You asked him a question, he commenced answering it and you started asking him another question in the middle of his answer. ROSS: That's not true, Sir. I am telling him that the figure that is provided here includes the wall thickness and that figure that's been provided here is 32.63, and I'm going on to ask Mr Nash that if his calculation includes the wall thickness, then would he agree that the 32.63 is the correct figure? WITNESS: The answer - I don't know what that figure is. I gave - as the Senior Commissioner has already reiterated - on the day that I gave that evidence I clearly expressed that I had taken the dimensions at the internal face of the retaining wall - the masonry balustrades of the garden box and I did that on the basis of the dimensions of the retaining walls being 270 millimetres. ROSS Q. Mr Nash, I recall the Commissioner advised you to work not off your measurements or your scaling but off the dimensions provided on the drawings. A. I did not scale them, I stated at the time- Q. But- SENIOR COMMISSIONER: Let him answer. WITNESS: I stated at the time that I was working off the dimensions provided on the plan. ROSS Q. Mr Nash, the dimensions provided here for that planter box are the only dimensions - are the external dimensions- SENIOR COMMISSIONER: Mr Ross, I am just going to cut in because I am concerned that we are wasting time. Let me just tell you what my understanding is, as it may assist you in where you go from here on that point. It is my understanding that with respect to the 32.63 metres squared shown on drawing number 4 of the development application plans, Mr Nash said when he had calculated the area within the garden box, he had excluded the retaining structures for the garden box and that the net area of the garden box was 25.28 square metres on my recollection. It is then my note that with respect to a calculation of the area, on the same basis, based on 0409 of exhibit 6, excluding the retaining structures was that the area of the garden box was 33.5 square metres - a difference of some 8 square metres. I am telling you, that is what my notes show. ROSS: I've never come across anything more absurd and nonsensical than that sort of exercise, with respect, Sir, because the drawing here - the..(not transcribable)..that Mr Nash gave was that the garden box 32.63 was in error and the figure that he had calculated was, in fact, the correct figure. That was my clear understanding and I'm establishing here that the figure of 32.63 which I said I accepted as the - and I would establish it was the actual figure, is the actual figure. SENIOR COMMISSIONER: But I do not think Mr Nash is contesting that 32.63 may be the area of the gross garden box from external - of the external dimensions of the retaining structures. ROSS: It is the only dimensions that I've been provided and you cannot work to anything else. SENIOR COMMISSIONER: In that case, Mr Ross, the appropriate thing to do is to ask Mr Nash to calculate the area from the as built plans, 0409 of exhibit 6, on an external face basis because my understanding is - and I'm going to ask Mr Nash to confirm this - my understanding is that his calculation of 33.5 square metres was based on an internal face dimension from 0409 of exhibit 6, is that correct, Mr Nash? WITNESS: That's correct, Sir. ROSS: With respect, based on Mr Nash's own measurements - which we know, when Mr Nash looks at an 8 foot door, even which is spelt out as a 2.4 metre door - he says it is a 10 foot door or three metre door and he goes on to measure it, and he - even though it measures 2.4, he writes it down as a 3 metre door. What the evidentiary basis for asking Mr Nash - I mean, how do you conclude that? I haven't had the opportunity to double check any of Mr Nash's absurd measurements except to the extent that I've already done and shown them to be in error. You want to extend this for another week, Sir, so I can go back and double check these alleged measurements of Mr Nash, or would you like to form a decision based on this absurd exercise? Because we can see what Mr Nash - and I'll go through the transcript of evidence, Sir. Mr Nash gave misleading evidence that the area here provided, based on the calculation as you directed him to do, to measure from the - not from his scaling but from the measurements that I've provided here and he ought to have done that, and he didn't do that, and he - the misleading evidence he gave was that. SENIOR COMMISSIONER: Mr Ross, Mr Nash has said to you - he said it on the last occasion and he's just said it now, that he has taken the numerically annotated numbers on sheet 4, that he has deducted from the numerical dimensions what he considers to be the thickness of each of the retaining walls of the garden box and he has calculated-- ROSS: I understand, Sir. SENIOR COMMISSIONER: Just let me finish. He has calculated an internalised area for the garden box. ROSS: You're repeating it, Sir. I understand it. SENIOR COMMISSIONER: He has undertaken a calculation on the same basis for the garden box on 0409 of exhibit 6 showing a difference of some 8 square metres. If you wish him to calculate the externalised area on 0409 of exhibit 6 in order to compare it with 32.63 square metres, which Mr Nash accepts - as I understand it - is-- ROSS: A guesstimate. SENIOR COMMISSIONER: - not unlikely to be the externalised area of the garden box, then you can ask him to do so, so that I have got an apples to apples comparison. ROSS Q. Sir, what I propose to do is ask Mr Nash a question and I'll lead the rest of the Court to form whatever conclusion it wishes to form. Mr Nash, based on the dimensions that are there, the only dimensions that are available without scaling - that's the 3.960 and the 5345 - are you following me? A. Yes. Q. On those dimensions, the figure that is provided within that, that says, "Garden box area, 32.63," is an accurate area measurement? A. It may well be. As I stated, I talk-- Q. Yes or no, is that an accurate measurement? SENIOR COMMISSIONER: I am not going to confine Mr Nash to simple yes or no answers. He is entitled to explain his answers, Mr Ross. ROSS Q. I've had the explanation before. A. So- Q. The question is, is that-- SENIOR COMMISSIONER: You will not cut him off in the middle of an answer. WITNESS: So the example you gave me of 3.96 metres, which is the dimension of the northern width of the garden box, I have deducted 540 millimetres-- ROSS Q. That's not my question, Mr Nash. Please listen to my question. I'm asking you, Mr Nash if you were as directed by the Commissioner to calculate the garden box as per the damages provided in the drawing would you say that the area provided in that drawing of 32.63 is accurate? A. It may well be. I haven't done that calculation. I was very clear in-- Q. So you're not-- A. In - I don't describe the means-- Q. You've answered my question, Mr Nash. A. The means of my calculation. EASTMAN: I object. I object to the interruption. It's misleading - it's potential-- SENIOR COMMISSIONER: Mr Eastman. We will get through this a lot faster, Mr Ross, if you let Mr Nash give his answer. If you consider his answer to be unresponsive you can repeat the question and ask me to direct that he answer it and I will do so, but a series of interruptions will not help us deal with this matter in an expeditious fashion. ROSS: Mr Nash has answered the question. Q. And my proposition to you, Mr Nash, if you either agree with it or not, the area calculation provided on drawing 4 of the approved drawing is an accurate area of the garden box. A. That's 32.63 square metres. Q. That's right. A. As I said a moment ago, it may well be. Q. It may well be. Yes. SENIOR COMMISSIONER Q. And if it is, it is on the basis of the external dimensions. Is that correct, Mr Nash? A. That's correct, sir. ROSS: Well, that's already been - it's obvious from the way that it's been dimensioned. SENIOR COMMISSIONER: I understand that, but I'm wanting to have on the record Mr Nash's approach to the answer he gave, and he's done so.
4. Although, as earlier discussed concerning the floor area of the building, Mr Ross obtained concessions from Mr Nash that he had made mistakes in his calculations, he was not able to shake Mr Nash on his calculations concerning the comparative area of the garden beds and the resultant difference in area between the that which had been approved in the 2008 development consent and that which was viewed during the first site inspection and marked by Mr Nash on the relevant plan on Exhibit 6.
5. I have carefully examined the relevant plans as extracted above. I am satisfied that Mr Nash's evidence on this point is correct.
6. The underlying premise that demonstrates the fallacy in the position advanced by Mr Ross, is that it is possible to increase the dimensions of the slab supporting the "garden bed" by extending it to the west (with consequent moving of the outer balustrading) whilst, generally, retaining the eastern wall of the proposed "garden bed" at its approved 2008 location without any significant increase in the overall footprint of the "garden bed". An examination of the 2008 development consent plans extracted above with the corrected "as built" plans marked up by Mr Nash as also extracted above visually demonstrates the absurdity of this proposition.
7. I accept that the difference between the annotation on the 2008 plan of 32.63 m² and Mr Nash's calculation of the actual footprint of the garden bed of those plans being 25.28 m² is readily and properly explicable from the fact that the annotation is based on the area including the proposed enclosing elements of the garden bed structure whilst Mr Nash's calculation is based on the internal dimensions after making an allowance for the thickness of appropriate retaining walls when he has derived values from the numerical dimensions shown on the 2008 plans.
8. Mr Nash also readily conceded that there were two assumptions he had made. The first was an assumption as to the thickness of the enclosing walls whilst the second related to a small area (as I understood him) where precise dimensions were not able to be ascertained from the annotations on the 2008 plans.
9. In any event, a simple visual comparison of the shape of this garden bed in each of the plan extracts reproduced provides self-evident demonstration of the fact that the 2008 garden bed and the current "garden bed" cannot be of the same size even if these extracts are not reproduced to identical scales.
10. As a consequence, I am satisfied that the difference in footprint between the garden bed at this level approved by the 2008 development consent was 25.28 m² whilst that which results from calculation of the area as actually seen during the course of the first site inspection is 33.65 m² thus giving a difference in area of a little in excess of 8 m².
11. In this regard, it is also relevant to note, in my view, that this additional area is virtually all located toward the outer edge of the slab as the location of the inner wall depicted in the 2008 development consent plans generally remains the same.

Comparative soil volumes

1. It was Mr Nash's evidence that he would expect that the soil depth in such a garden bed would be of the order of 800 mm. His evidence in response to a questions from me was (Transcript 15 October page 55 lines 36 to 44): Q. Mr Nash, for the garden box as described on sheet 28, if the area so defined were to be used as a garden box what, from a planner's perspective would you anticipate would be the depth of soil to be placed in it? A. You would generally not provide fill within about 200 mils of the top of the top of the balustrade. If the balustrade is one metre, you would have a maximum soil depth of approximately 800 millimetres. Q. Is that what you would expect to be the soil depth in such a garden box? A. In such a large garden box, yes.
2. I understood this observation to be made based on his experience with such garden beds (or planter boxes) during the course of his career. Such a soil depth is also consistent with my experience of such structures and their dimensions in other proceedings.
3. If this were to be the case, at 1200 kg/m3 for soil, the additional soil in the currently proposed "garden bed" when compared to that approved in 2008 development consent would be in excess of seven tonnes, at least a proportion of which would be located forward of the outermost edge of the slab and garden bed approved in 2008.
4. It is possible that a garden bed with a lesser inner wall height could be installed (contrary to the height of the inner structure currently present on the site) so that the volume of soil was limited to some 400 mm or so in depth. This would still place in excess of 3.5 tonnes of additional soil in such a garden bed at a location further out than the outermost element of the 2008 approved garden bed boundaries.

Structural engineering issues and this "garden bed"

1. I have set out the limited extent to which I have structural engineering evidence on behalf of the applicant. It is worth, in this context, specifically noting two aspects of that which has gone before relevant to the question of structural adequacy of the uppermost level slab, at its western end, to support a "garden bed" of the nature now proposed (making the assumption, for the purposes of this discussion, that such a "garden bed" is actually proposed to be installed, a proposition I reject as elsewhere set out).
2. First, from the second phase of the hearings onward, the applicant was provided with express notice of my concern about this issue and the written directions that were provided to the parties immediately after the second phase hearings also expressly provided, as earlier set out, provision for the applicant to provide evidence that directly addressed this issue.
3. Second, the structural report provided by Mr Koloff for the purposes of the s 96 modification application proceedings had two elements that are potentially broadly relevant. They, too, have earlier been set out. However, to the extent that that structural report has bearing on this issue, there is one express observation to be made as to the inadequacy of that document in addressing this issue.
4. This document's deficiency is the fact that it is clear from a comparison of the s 96 modification application plans (Exhibit 4 appendix 4) and the corrected marked up as built plans (Exhibit 6) that the slab that is the subject of Mr Koloff's August 2012 report is materially different to and not as extensive in a western direction as that which has actually been constructed. There is, therefore, no inference to be drawn from this report that this slab as constructed has been built in compliance with any structural specification (the only potentially relevant slab plan in evidence being that reproduced in Appendix G showing the slab plan founded on the 2008 development consent plans. This plan, as already noted, envisaged the garden bed and its supporting slab at the dimensions and location shown on Exhibit G sheet 4 - the uppermost level plan of the 2008 development consent plans).
5. Quite apart from any other matter arising in this area of the dwelling as constructed, there is no basis upon which I could conclude that this slab as presently constructed is fit for the purpose for which it is now proposed to be used.

The construction of the "garden bed"

1. During the course of the Council's July 2014 site inspection of this element of the building, a photograph was taken that shows part of the lightweight structure currently erected as the inner element of the proposed soil retaining structure of the "garden bed". This photograph (Exhibit 12 photograph 10) has been cropped to retain the relevant aspect. It is reproduced below:
2. In addition, the south western elbow of the balustrade at the outer edge of the proposed slab is made of glass and had, from my memory, a gap above the slab of some 15 cm or so (as is common with such balustrades). This is illustrated in the above photograph and is also clearly shown in another photograph in evidence (Exhibit 12 photograph 9).
3. In his written closing submissions in reply, Mr Eastman described the elements said to comprise this "garden bed" as being a "sham". This accusation was a not only with respect to this "garden bed" but also with respect to a number of other elements of the building as they presently exist. For the purposes of my consideration of this element, I confine my consideration to this "garden bed".
4. On 15 October, I put Mr Ross on notice of my concern about the load bearing capacity of the uppermost level slab to support the soil volume to be anticipated in the as constructed area asserted to be for a garden bed.
5. On 19 November, I raised the matter again (Transcript page 11 lines 26 to 40) as follows: SENIOR COMMISSIONER: Well, Mr Ross, that is not necessarily the case, but I don't propose to enter into a debate with you on that point at this time. I'm simply saying to you that I have identified on at least one occasion my concern about the extent of the slab at the second level of west and its ability to hold up the weight of the soil that is proposed to be in the roof garden, and you have been on notice of that for some considerable time. ROSS: Can I respond to that, sir? SENIOR COMMISSIONER: No, I don't want you to respond to that at this time. I am simply informing you that I have put you on notice of that, as is my obligation to do. How you might say my concern should be met is a matter that you can deal with in submissions at the appropriate time or by questioning of Mr Nash, Mr Ledow, or either of the witnesses that you have proposed to call. Right, and I'll deal with that as and when it arises.
6. As I have earlier observed, in addition to his primary closing submissions and his oral submissions in reply, Mr Ross was granted leave to file further supplementary written submissions in reply. He did so within the time permitted for this.
7. During the course of his written closing submissions, to the extent that he dealt with this "garden bed", he said (Closing written submissions commencing on page 9 para 5): Additionally, I have not been able to give expert evidence as originally anticipated and Mr. Turrisi had not made himself available, and given the hostile circumstances, Mr. Turrisi was not able to respond to the new matters and contentions raised in these proceedings and not contained in his earlier report. New structural questions relating to the BCA raised by the Senior Commissioner in relation to 'deemed 'planter box design ought to have been addressed by an independent expert in the light of the Senior Commissioner's comments in this regard.
8. Mr Ross dealt, more expansively, with these matters in his supplementary written submissions in reply. He did so in the following terms:
9. Significantly the Senior Commissioner's concerns related to a possible difference of some 8 sq. meters of additional soil load on the slab. The evidence suggests : A) The wall of the planter box has been construction of lightweight blueboard construction capable to handle the soil loads but also reducing the gross dead load on the slab. B) The planter box has been configured to allow a view corridor through the middle by setting back the limit of the planter box back from the front glass balustrade. C) Importantly the approved front balcony area was 44. 54 msq and the proposed area is 32 metres sq. m allowing for adjustment to be made to increase the size of the second floor balcony area by around 13 m sq and thereby reduce the planter box area if the council should insist on this course of action. D) It is further understood that the lines on the drawing showing the south west limits of the planter box are in fact accurate and have been simply misread AGAIN by Mr. Nash. The glass balustrade is outside of the area identified as planter box area. This also dispels any adverse inferences in relation to the second floor glass balustrade conjured up in Mr. Eastman's personal evidence. above. E) The applicant's structural certification is sufficient. It seems the Council evidence in opposition is visibly absent and is remarkably confined to the removal of the awnings in their entirety which it seems council is not entitled to have given the existing approval of awning arguably not dissimilar to what was proposed.
10. At this point, it is appropriate to comment only on (B) and (D) from the above element of his submissions. Both statements about the glass balustrade are clearly false as an examination of the two photographs of this aspect of the site reproduced above clearly shows from the arrangement of the orange plastic sheeting and the complete lack of any separation whatsoever between the "garden bed" area and the glass balustrade.
11. There are, in my assessment, three conclusions that inescapably follow concerning the "garden bed" as presently located and constructed on the uppermost level of the building. These concern both the nature of the construction and the appropriateness of the dimensions as presently envisaged when compared to the 2008 development consent proposal. They also concern the nature of the submissions Mr Ross was prepared to make on this topic.
12. First, with respect to the construction methodology employed of incorporating a glass balustrade in such a structure, I have never seen such an element incorporated into a retaining structure for a garden bed. There is a ~ 15 cm gap underneath the glass balustrading, so the suggestion that this element could, in fact, retain soil is simply bizarre. Soil retention would be functionally impossible.
13. Second, although I am familiar with the use of blueboard for construction purposes (particularly but not confined to external cladding of dwellings where lightweight structures are desired), I have never seen or heard of a structure made of blueboard being used, in effect, as a retaining wall for soil. There is no evidence in these proceedings of such a structure being able to retain soil - let alone wet soil - in any functional fashion.
14. The glass balustrading appeared to be designed for and intended to be used as the outer boundary of a continuation of the deck area. I am satisfied that I should conclude that this is the case.
15. In my assessment, the description of "a sham" put by Mr Eastman is appropriate and that which I have observed at the uppermost level as purporting to be constructed to enclose a garden bed should be treated as a sham. I have earlier set out my reasons for concluding that Mr Ross was, is and will remain (whilst ever the applicant owns the site) the guiding mind for construction on the site. I therefore conclude that this sham is one jointly perpetrated by Mr Ross and the applicant.
16. I am satisfied that, in this regard, the blueboard structure has been erected solely for the purpose of seeking to demonstrate that the area between that structure and the outer edge balustrading (whether glass or masonry) was intended to be a garden bed when, in fact, it is not so intended. Mr Ross's constructing the sham blueboard "retaining structure" that now exists on site can only be seen as a deliberate attempt to mislead the Court.
17. More importantly, temporarily setting aside my conclusion that this arrangement is a sham, the height of the external balustrading when coupled with the similar height of the blueboard structure means that if it were to be appropriate to treat it as being a bona fide proposed garden bed, I have no evidence whatsoever of the structural adequacy of the supporting slab, beyond the dimensions shown in the structural drawing for this level reproduced at Appendix G, as being adequate to support an additional soil volume weighing between ~ 3.5 up to ~7 tonnes. There is also no evidence that blueboard can be used to create a retaining structure for such a soil volume.
18. Given that this slab provides the roof for the balcony below of the middle level of the dwelling, this question of structural adequacy arises in circumstances where the potentiality of failure, if the slab were to be inadequate, gives rise to safety risks with respect to the area below. This element clearly fails the threshold test in the first step of an Ireland No 2 assessment.
19. However, as it is necessary for there to be some finalised structure at this level and it is not appropriate, in my view, simply to conclude that I should not contemplate giving a building certificate for that which is presently erected in that location and thus leave this aspect of the site in limbo. It is appropriate to consider how I might require construction of a built element that:

• was consistent with the 2008 development consent;
• was appropriately permanent; and
• fell within what I am prepared to conclude is structurally safe and could be required to be incorporated in Schedule 1 in order to provide a proper foundation for eliminating this element of non-compliance as a barrier to the granting of a building certificate for the overall structure.

1. I am satisfied that the appropriate way to achieve this outcome, in a permanent fashion, is to require the erection of a permanent structure within which a garden bed is established of the dimensions shown in the 2008 development consent plans. Creation of this garden bed can be achieved by the importation of the appropriate volumes of soil and its planting out.
2. Although Mr Nash and Mr Turrisi agreed for the s 96 modification proceedings of the need for a landscape plan for the site (Exhibit K) - 2.2.3 It was agreed that a landscape plan showing plantings within the site, including planting within the planter box should be provided - such a broad plan is not appropriate to be required as an outcome of these proceedings. However, it is appropriate to require a plan to be provided of the plantings in the garden bed required to be constructed by Schedule 1.
3. This will necessitate the construction of an enclosing masonry structure at the location shown on those 2008 development consent plans with the removal of all existing enclosing balustrading beyond them - with this removal having the effect of creating a non-trafficable area between the outer edge of the 2008 approved garden bed and the western extent of the slab at this level as presently constructed. Other details of what is to be required are set out in Schedule 1.
4. The sham blueboard "retaining structure" will also require to be removed.

Consequential amelioration of bulk and scale impacts

1. In addition to providing an appropriate resolution to permanence of the installed structure and the adequacy of support for the soil volume to be retained within the structure, this approach of requiring the removal of the relevant elements of existing balustrading (both glass and masonry) and the setting back of the garden bed behind the western edge of the slab at the uppermost level (to the extent that will result from the western masonry retaining element of the garden bed being at the location shown in the 2008 development consent plans) will have the significant effect, discussed elsewhere, of adding a modest degree of softening of the perception of the bulk of the awning structures that are appended to that slab.
2. Such an amelioration of the perception of the bulk of these awnings is, as discussed in detail in my consideration of whether or not to order the removal of the awnings, a fundamental and essential element of permitting the awnings to remain.
3. Absent the modest extent of visual relief to the bulk of the upper western presentation of the present structure when viewed from the street, retention of the awnings would be inappropriate.
4. The establishment of a permanent garden bed structure in the fashion described above is a necessary element in an overall scheme to render the present building, after the implementation of the works set out in Schedule 1 appropriate to be granted a building certificate to the extent that such a certificate would apply to that which was inspected during the course of the site inspections on 14 August and 19 November but modified to the extent required by Schedule 1.

The northern setback path

1. At the present time, there is a pathway up the northern setback. It has a two paver wide (approximately 800 mm) path in its centre with grass on each side. Slightly to the east of the front door of the dwelling there is a small brick wall commencing at and at right angles to the wall of the dwelling. The paver and grass path concludes at this point.
2. Beyond the brick wall there is an area continuing along the side of the dwelling and then turning into the undercroft. The area between the brick wall and the undercroft slab has a series of similar pavers spread out across it but not laid in any formal fashion. The pavers are spaced at intervals that would not be appropriate for them to be laid any permanent fashion - acting more like stepping stones than a continuously paved area. This path is shown in the photograph below (Exhibit 5 photograph 7):
3. In these proceedings, as in the proceedings before Dixon C, the Council proposes that there be a brick wall from the northern side retaining wall at a matching location and height to that which presently protrudes from the wall of the dwelling. The Council proposes that a gap be left in the wall to accommodate a 1200 mm wide gate (which the Council proposes would be required to be installed).
4. The applicant, as I understood Mr Ross, does not oppose the concept of a matching wall and gate but suggests that a gate of at least 1500 mm in width would be appropriate.
5. The Council's concern to ensure that this pathway is fenced and gated with a gate of the width proposed by the Council arises from the Council's concern that the undercroft area earlier discussed is, in the eyes of the Council, intended to be used as a two-car garage. The proposal for the fence and gate would act to prevent vehicles being able to drive up the path at the northern setback and access that undercroft area. The applicant, through Mr Ross, disavows any intention to use the undercroft as a garage and says that it is to function as an undercover area for storage and other domestic activities.
6. This issue was canvassed in the evidence of Mr Turrisi and the joint report of Mr Turrisi and Mr Nash in the proceedings before Dixon C. In his statement of evidence in those proceedings (Exhibit M in these proceedings) Mr Turrisi did not specifically deal with this point. His discussion of the northern path was in the following terms (page 4 at 10. Contention 3): The proposal does not provide for a new double garage towards the rear of the property. The development provides for one driveway. The concept landscape plan shows soft landscaping to the rear section and additional landscaping can be provided along the path, being the old driveway to prevent any future connection. In addition, Council can impose appropriate conditions in terms of curb and guttering to ensure that the development only retains a single crossing.
7. In the joint statement before Dixon C (Exhibit K in these proceedings) Mr Turrisi and Mr Nash agreed that the gating proposal suggested by the Council was appropriate. The relevant element of the joint report formed part of 2.2.2 and was in the following terms: It was also agreed that the pathway along the northern boundary that leads from the footpath to the front door shall be 1.2 m in width, with the remaining area landscaped. It was also agreed that a masonry wall of 1.5 m in height, with a gate should be erected between the northern elevation and the side northern boundary and spring off in the area of the internal wall that separates the lift and storeroom.
8. On 19 November, Mr Eastman questioned Mr Turrisi on this point. Mr Turrisi indicated that he could not recall the underlying reasons for the agreement quoted above from the joint report (Transcript 19 November page 56 line 5).
9. Then followed a further exchange on this point (lines 7 to 23) in the following terms: Q. Can I suggest to you that the reason was as to try and prevent a greater intensity of use by effectively having a second garage at the rear. OBJECTION. LEADING. QUESTION ALLOWED Q. Do you need me to state the question for you again, Mr Turrisi? A. No, but looking at the plans and trying to recall, it may have been just lent from a visual privacy and acoustic privacy. That's the only reason why I could recall maybe why we agreed. Q. Surely narrowing the ability to access that rear OBJECTION. LEADING SENIOR COMMISSIONER: I think you're running dangerously close to trespassing in what might have been the discussions in the joint conference. I'm not going to permit that. You've gone as far as you can.
10. In light of this, Mr Turrisi's evidence on this point provides no assistance in my evaluation.
11. However, in addition to the agreed s 96 modification proceedings position of the experts of the appropriateness of this wall and gate (which will have the effect of ensuring that this pathway cannot be used for vehicle access), there is a further reason why this should be the case - a reason unrelated to issues of approval and potential acoustic impacts (to be ameliorated, if they were to occur from vehicles or human activity in the undercroft as dealt with in the preceding section). I am satisfied that vehicle access up this side setback could not be appropriate in its present configuration because of the present lack of separation available between any driveway that might be installed in lieu of the present pathway and what is the sole pedestrian access to the dwelling, there being no pedestrian access along the southern boundary.
12. If there were, at some time in the future, to be garaging in the undercroft (a matter about which I express no opinion as such a proposal is expressly disclaimed by the applicant in these proceedings), there would need to be consideration given to proper separation between any driveway and a pedestrian access to the front door at least.
13. Whilst this is not, in itself, a matter that I need to take into account in these proceedings as it was not a matter that was dealt with in the evidence (and, as a consequence, I give it no weight in my adoption of the conclusion of Mr Nash and Mr Turrisi), it is a matter that merely warrants being noted as providing comfort that the course proposed is the correct and appropriate one.
14. To ensure that vehicle access is effectively denied up the northern setback, the additional wall and installation of a 1200 mm wide gate as advocated by Mr Turrisi and Mr Nash in the s 96 modification proceedings is the appropriate protective measure.
15. I am not satisfied that a gate of 1500 mm in width would necessarily be sufficiently narrow to create the necessary barrier effect. Indeed, it is at least a potential outcome that a gate of 1500 mm in width or greater, if removed, could create an aperture that would permit some vehicle access to rear of the dwelling including to the undercroft.
16. As a consequence, I have incorporated in Schedule 1 a requirement that the second wall be constructed with an aperture of a width to accommodate a gate of 1200 mm in width with that gate to be installed. Whether or not the applicant wishes to leave the walls as raw brick (as is presently the case with the wall element currently erected as shown in the photograph) or the applicant wishes to render and paint the wall elements in a fashion consistent with the treatment of the remainder of the dwelling is a matter for the applicant as is the nature of the gate to be installed.

The preferred statutory path

1. There are two options, potentially available, as prerequisites to my issuing a building certificate for any aspects of the as constructed elements of the dwelling where I have concluded that the two tests set out by Bignold J in Ireland No 2 at [37] are able to be satisfied. The first path is that which is available utilising the provisions of s 149D of the Act. This provision is in the following terms: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 : (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.
2. Of particular relevance are subsections (2), (3) and (5). These, effectively, enable me to set out a path which, if satisfactorily followed would lead to me being satisfied that, at that time, a building certificate might be appropriate to be contemplated and the scope of any orders necessary and appropriate to attach to that certificate could be considered in light of the state of the building at that time.
3. The alternative path is to proceed directly to the issuing of a conditional building certificate by utilising the powers given to the Court through this appellate process by s 149F of the Act. This section is in the following terms: 149F Appeals with respect to building certificates (1) An applicant: (a) who is aggrieved by a council's refusal to issue a building certificate, or (b) who is aggrieved by a council's refusal to issue a building certificate within 40 days after: (i) the date of application for the certificate, or (ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied, whichever is the later, or (c) who receives a notice under section 149C to supply information, may appeal to the Court. (2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires. (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate.
4. For the purposes of adopting an approach founded, sequentially, on s 149D followed by a significantly later consideration of orders pursuant to s 149F, I would be exercising two distinct aspects of the jurisdiction available to me. In exercising jurisdiction pursuant to s 149D, I would be doing so pursuant to s 39(2) of the Court Act, the provision that has me stand in the shoes of the Council for the purposes of the Council's potential roles in that provision.
5. As earlier discussed, when I move to the powers given to the Court by s 149F(3)(c) of the Act, these are broader than those available to the Council and are solely able to be exercised by the Court.
6. I am satisfied that the combined approach of moving, first, pursuant to s 149D followed by a period within which the applicant can comply with those matters required pursuant to that provision and then (and only then) moving to the more expansive power pursuant to s 149F(3) is an approach that permits a more finely calibrated response to the matters for which I have concluded it is appropriate to issue a building certificate than simply leaping to a s 149F(3) approach.
7. In adopting this approach, particularly given the extensive litigation history concerning these building works and the desirability of limiting any future potential litigation, I am mindful of the desirability of bringing finalisation to disputation (if possible) between Mr Ross and the applicant, on one hand, and the council on the other.

Conclusion

1. Mr Ross said in his closing written submissions (at para 34): Whilst it has also been demonstrated thus far, prima facie, solely through Mr. Nash's evidence that all of 'the disputed changes' whilst not only being numerically compliant with all of the controls, have been shown to be undeniably an improvement or 'at least as good as" what was approved in respect to its impact on the neighboring amenity and /or against any measurable standard or performance criteria.
2. I accept that a number of the changes are either trifling in impact, neutral or beneficial (as is demonstrated by the extent of the matters to which the Council takes no exception - see Appendix B). However, other aspects of that which has been constructed in a fashion not consistent with the 2008 development consent plans are not able to be so categorised but require works to be carried out before they could be included in any building certificate.
3. I have concluded that, subject to the satisfactory completion of the works that are detailed in Schedule 1 to this decision, a building certificate is capable of being given to the building that will be in the form resulting from those works. The works required in Schedule 1 are comparatively limited and, in summary, comprise: 1. Acoustic protection of the southern neighbour from potential noise impacts from the undercroft area; 2. Completion, in a permanent fashion as described in Schedule 1, of the garden bed on the western deck at the uppermost level in fashion that replicates the garden bed at this location provided for in the 2008 development consent (complete with appropriate landscape planting within the garden bed) with the area beyond the outermost perimeter of that garden bed thus being rendered non-trafficable. 3. Replacing with masonry the infill panels below the windows on the eastern façade of the bedrooms on the uppermost level; 4. Removal of the kitchen in the north-eastern corner of the lowest habitable level with the removal being carried out in a fashion to prevent re-instatement of a kitchen at this location. 5. Confirmation that the uninspected lift well aperture coverings at the middle and upper levels of the dwelling are adequate; 6. Installation of a permanent gate structure and gate on the northern pathway to the east of the front door; and 7. Completion of the powder room on the lowest habitable level.
4. There are a number of further matters that should be made expressly clear with respect to these conclusions. They are: 1. The outcome that I have considered appropriate as rendering the building capable of being given a building certificate is a package in its entirety. That which is set out in Schedule 1 is not intended to be a menu from which the applicant might make some limited selection; 2. The conclusions set out in this decision have been reached on the basis that, within the period allowed for the completion of the work set out in Schedule 1, no further works departing from the 2008 development consent (and being works for which development consent would be required) other than the works set out in Schedule 1 are carried out to or within the building; 3. Whether there is or is not a lift presently installed in the lift well, any building certificate that may be issued as a result of these proceedings will not encompass any lift in the lift well; and 4. The terms of the building certificate will be expressly confined to those matters that are within the built form or, as with the gate in the northern setback, are necessarily attendant upon and interlinked with the building. Any building certificate directed to be issued will expressly exclude matters outside the dwelling itself as disclaimed by the applicant, through Mr Ross, as not falling within the scope of the application (such as the front fence and the secondary retaining walls parallel to the front fence within the front setback).

Proportionality of the total outcome

1. I have earlier dealt with the question of proportionality in my assessment of a number of the elements where the Council had proposed that works should be undertaken prior to the issuing of a building certificate. Relevantly, each of my individual decisions was reached after consideration of such proportionality issues as were relevant.
2. Having now dealt with all of the issues requiring consideration, it remains, for reasons I earlier outlined, to consider whether the cumulative burden placed on the applicant to give effect to various individual works proposed to be required would be proportionally reasonable.
3. I have concluded that it would not be unreasonable to require implementation of all of those matters elsewhere set out and they will, in total, be incorporated in the schedule of works (Schedule 1) published after these reasons for decision in prior to the appendices to them.
4. Whilst I am aware that there will be a deal of financial cost as well as domestic disruption to the applicant in complying with that which is set out in Schedule 1, doing so, in my assessment, would not be disproportionate either in the context of the overall nature and cost of the works already carried out to the dwelling or the overall remaining high level of amenity that will be enjoyed by those residing in the dwelling on the site and that the reduction in amenity (to the extent that there might be any) would be minimal.
5. Although the costs of giving effect to Schedule 1 will be more than trifling, those costs are ones necessarily arising as a result of addressing the unacceptable consequences of the applicant (and her predecessor in title) departing from that which had been approved in the 2008 development consent plans.
6. In saying that, as I have earlier noted, these proceedings are in no way punitive and each of the matters contained in Schedule 1 arises as a consequence of the necessity to address adverse impacts of that which has, in fact, been constructed when compared to that which had been approved in the 2008 development consent plans.

Time for implementation

1. As the works that are set out in Schedule 1 are not ones requiring major construction works (contrary to the position that would have arisen had I concluded that cutting back any of the elements integrated with the main slabs below the middle and uppermost levels), I am satisfied that a period of six months is appropriate to be permitted for the finalisation of these works. In reaching that conclusion, I have made what I consider to be appropriate allowance for: 1. Possible wet weather disruptions; 2. Possible delay in the supply of materials; 3. Seeking quotes from and engaging appropriate tradespeople; 4. The need to schedule the timing of the works in a fashion sympathetic to what has been said to be the medical condition of the applicant (whilst acknowledging that, in making this allowance, I have no proper evidentiary basis supported by medical certificates for doing so); and 5. After having taken all those factors into account, then adding a further month to the five months that I consider would be necessary (with this additional month added as an additional contingency safety margin).

Where to from here?

1. I have set out in Schedule 1 the works that I have determined are required to be undertaken before I am prepared to direct that the Council prepare a building certificate for the dwelling.
2. As some of the matters requiring to be implemented by Schedule 1 are ones where it is necessary that I be satisfied that the work to be carried out has, in fact, been executed in accordance with the schedule, Schedule 1, therefore, also incorporates requirements for relevant certificates demonstrating appropriate compliance with the requirements of the schedule to be provided from the tradespeople who are to be engaged by the applicant to carry out these works. In one specific aspect, a survey report is also appropriate to be required as noted in the schedule.
3. The directions at the conclusion of this decision include the requirement for the filing and serving of those certificates and the survey report in sufficient time prior to the resumed hearing for the Council to consider whether or not it might wish to subpoena any of those providing any of these certificates or survey report to give evidence.
4. At the end of the six-month period I have allowed for the completion of the works in Schedule 1, a further inspection is to be undertaken to enable me to be satisfied that those works have been carried out and that a direction for the issuing of a building certificate should be made. I would anticipate that that inspection might take several hours.
5. Following that inspection, as I indicated during the course of the final phase of the hearing (transcript of 21 November) a further short hearing should follow, that day, to enable the parties to make submissions about what orders (including any ongoing compliance orders) might be considered to be made by me pursuant to s 149F(3)(c) as part of orders directing the Council to issue a building certificate.
6. In that context, it is appropriate that the applicant be provided with notice of any enduring conditions that the Council might propose be so ordered so that the applicant has an opportunity to respond to them. Similarly (although the event is, perhaps, unlikely), the applicant is to be provided with the opportunity in the timetable I propose to set to advise the Council of any such orders that the applicant might propose or, more likely, any objections and/or changes the applicant proposes to any order proposed by the Council.
7. In each instance, any notification of proposed orders is to be in the form of a table setting out the terms of the proposed order in one column and, in a second column, a short summary of the reasons why it is said that that order is appropriate.
8. Finally, in order to provide the applicant with the opportunity to seek a variation to the timetable or to refine the detail of the requirements in Schedule 1 (although, expressly, excluding the opportunity to re-agitate any of the broad matters of substance contained in or underpinning Schedule 1) it is appropriate to grant the parties (although primarily for the potential benefit of the applicant) liberty to relist the matter before me after the expiry of three months from the date of this judgment. Any exercise of the liberty to relist is to be subject to the condition attaching to that liberty in the relevant direction set out below.
9. Finally, against the eventuality that the process of submissions concerning the terms of any proposed orders suggested to be made pursuant to s 149F(3) might take longer than might ordinarily be anticipated (as turned out to be the case in the principal hearing where the originally anticipated three days extended to twelve), the directions set a reserve day on the day following the site inspection to be available, if necessary, to accommodate any extension to the hearing concerning possibly proposed orders.
10. I therefore make the following directions: 1. The matter is set down for a further hearing before me on 27 and 28 July 2015; 2. The hearing is to commence with a site inspection at 9.30am on the first day returning to Court at 12 noon on that day; 3. Should the respondent propose that I make any orders pursuant to s 149F(3)(c), the respondent is to file and serve a schedule of the proposed orders together with a short summary of reasons in support of each proposed order by the close of business on 26 June 2015; 4. Any certificate or survey report for works carried out as required by Schedule 1 is to be filed and served by the applicant by the close of business on 10 July 2015; 5. If the applicant proposes any ongoing conditions pursuant to s 149F(3), the terms of those ongoing conditions and a short summary of the reasons for each are to be filed and served by the close of business on 10 July 2015; 6. The applicant is to file and serve, by the time specified in the preceding direction, a schedule indicating whether or not she agrees to the making of any order proposed by the respondent in any schedule of orders filed and served by the respondent pursuant to these directions or proposes any amendment to any of them and, if there is any such objection or proposed amendment, identifying the proposed order to which objection is made and/or setting out any amendment proposed together with a short summary of the reasons for that objection or amendment; 7. If the applicant proposes any orders or proposes any amendment to and/or deletions of any order proposed by the respondent pursuant to (3), the respondent is to file and serve by the close of business on 17 July 2015 a schedule indicating whether it agrees with any such proposed order or changes and/or deletions to any order proposed by the respondent and, if not, the reasons for that disagreement; 8. Liberty to either party to relist before me on or after 4 May 2015 on one week's notice to the Court and the other party (with the relisting party to file and serve a summary of not more than one page outlining the reasons for the relisting at the time of requesting the relisting).

Retention of exhibits

1. As it is not usual to return exhibits in proceedings such as these until orders reflecting the final outcome have been made, I proposed to retain all the exhibits tendered to date. Any further exhibits that may be tendered during the course of the resumed hearing at the end of July will become additions to the exhibit list already established in the proceedings. Tim Moore Senior Commissioner

Schedule 1 and Appendices A - G (3.01 MB, pdf)

Amendments 27 January 2015 - Schedule 1 heading amended Code references removed from paragraphs 118, 243, 247, 274, 281, 292, 414, 480 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: 27 January 2015