[2006] NSWCA 300
Wollondilly Shire Council v Kennedy [2023] NSWLEC 53
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCA 300
Wollondilly Shire Council v Kennedy [2023] NSWLEC 53
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Judgment (21 paragraphs)
[1]
The applicant instead proposes an operational condition as follows:
[2]
"The planting of trees and vegetation in the front setback is to be supervised by the Applicant's landscape expert, in conjunction with the stormwater engineer, so as to ensure no conflict with the proposed OSD and stormwater infrastructure, in accordance with Council's stormwater policy."
[3]
In either scenario, the Court can be satisfied that any conflict is minimised between the onsite detention and the planting of trees and vegetation in the front setback.
However, there also remains a dispute as to the adequacy of the proposed plantings. Mr Kenworthy opines that the landscaping proposed is insufficient to soften the size and scale of the built form, and will not maintain and enhance the streetscape. To inform this opinion, he relies on his opinion concerning the viability of trees 5 and 12, the viability of trees within the onsite detention basin, and the fact that the plantings along the northern boundary do not extend the full length of that boundary.
I do not accept Mr Kenworthy's opinion with respect to the adequacy of the landscaping. The conditions of consent will ensure that there is no conflict between the trees and the onsite detention basin. The plantings on the north boundary are sufficient when taking into account the landscaping plan as a whole, and I have found above that trees 5 and 12 will not be adversely impacted. I prefer Mr Tesoriero's evidence that the landscaping proposed will provide a greater level of vegetation and canopy cover when compared to the current site, such that the streetscape presentation will be enhanced by the provision of the landscaping proposed. As such, I am satisfied, consistent with cl 6.12(4) of the GRLEP, that the proposed development allows for the establishment of appropriate plantings that are commensurate with the height, bulk and scale of the buildings proposed, and will maintain and enhance the streetscape and the desired future character of the locality.
[4]
Size of the basement and extent of excavation (contentions 1.6, 1.10)
[5]
The Council contends that the depth of cut required for the basement is excessive, the basement size goes beyond the ordinary storage requirements associated with a dwelling house use, and does not comply with either the applicable controls in the GRDCP or their objectives.
The applicable controls in the GRDCP are found in Part 6.1.3, at Section 7, as follows:
[6]
"7. Excavation (Cut and Fill)
Objectives
(a) Retain natural ground levels and existing landform.
(b) Create consistency along streetscapes.
(c) Minimise the extent of excavation and fill.
(d) To ensure that excavation and fill does not result in an unreasonable loss of privacy or security for neighbours.
(e) Must not impact the height of the swimming pool fence on the subject site or adjoining sites to ensure compliance with AS1926 (latest edition).
Controls
1. Any excavation must not extend beyond the building footprint, including any basement car park.
2. The depth of cut and fill must not exceed 1.0m from existing ground level, except where the excavation is for a basement car park.
3. Developments are to avoid unnecessary earthworks by designing and siting developments to respond to the natural slope of the land. The building footprint must be designed to minimise cut and fill by allowing the building mass to step in accordance with the slope of the land."
[7]
In addition, control 4 of Section 2 of Part 6.1.3 provides a limit on the size of a basement as follows:
[8]
"4. Where topography conditions require a basement, the area of the basement should not exceed the area required to meet the car parking requirements for the development, access ramp to the parking and a maximum 10m2 for storage and 20m2 for plant rooms. Additional basement area to that required to satisfy these parking requirements may be included as floorspace area when calculating floorspace ratio."
[9]
The proposed development seeks a basement that has a floor area of around 517.2m2. The excavation required is up to 8.4m deep. This is far greater than the limits on basement area in control 4 of Section 2 of Part 6.1.3 of the GRDCP. It also exceeds the limit on cut in control 2 in Section 7, although strictly speaking this limit does not apply to a basement car park.
The Council's position is that not only are the controls not met, but the proposed development does not meet the objective in Section 7 of Part 6.1.3 to minimise the extent of excavation. This is supported by the evidence of Ms Chikkerur, who considers that the excessive basement area is incompatible with the current single and two-storey dwellings with primarily at-grade garages, and the excavation does not follow the natural topography of the existing ground level. Instead, she opines that it is a way to get around the prescribed height and floor space development standards in the GRLEP. Further, she considers that excavations of this nature are not common in low density residential areas and are more common in higher density developments, and its approval would present an undesirable precedent for developments in low density residential areas. Ms Chikkerur also provides evidence concerning alleged inadequacies in the geotechnical report.
In contrast, the applicant relies on the evidence of Mr Neustein, who points out that there are no above ground impacts from the size of the basement or the extent of excavation. Firstly, he opines that only visible aspects of development can contribute to the character of an area, and from the public domain the below-ground level will appear only as a basement garage and the size of the basement and the extent of excavation will not be perceived. Secondly, he points out that the cost of the basement is substantial, and it is therefore highly unlikely to become a common form of development. Thirdly, based on the geotechnical report, there is no impact on adjoining structures. Fourthly, his evidence is that the basement excavation does not extend beyond the general footprint of dwelling 1 and does not impact on the topography of the site, which would have to be benched if the basement was not proposed to allow level floor slabs. Further, he considers that, having regard to the needs of the applicant (for storage for large format artworks), the excavation is minimised.
[10]
The size of the basement and the extent of excavation does not warrant refusal
[11]
It is clear that the size of the basement and the extent of excavation does not comply with control 4 of Section 2 of Part 6.1.3 of the GRDCP. The limit on cut in control 2 in Section 7 does not apply to basement car parking. When considered against the ordinary needs for a dwelling house, I accept the position of the Council that the excavation is not minimised, contrary to the objectives in Section 7.
However, non-compliance with the GRDCP or its objectives does not compel the refusal of a development application. The GRDCP is a mandatory consideration pursuant to s 4.15 of the EPA Act and its provisions are entitled to significant weight, but it is well established that they cannot be determinative of the application (see Zhang v Canterbury City Council(2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]). Section 4.15(3A)(b) of the EPA Act imposes a positive obligation on the consent authority to consider alternative solutions to achieve the objectives of standards in a development control plan, but it does not impose an obligation to refuse a development application that neither complies with the standards nor achieves their objectives.
As such, Part 6.1.3 of the GRDCP cannot operate to mandate or compel the refusal of a development. Instead, the Court, exercising the functions of the consent authority, retains a discretion as to whether or not to grant development consent in the event of a non-compliance with a development control plan. In the circumstances of the proposed development, I consider that the large size of the basement and the corresponding excavation is not sufficient to warrant refusal of the development application. I reach this conclusion for the following reasons.
Firstly, there is no streetscape or character impact from the size of the proposed basement and the extent of excavation. I accept the evidence of Mr Neustein that only visible aspects of development can contribute to streetscape impacts, and from the public domain the below-ground level will appear only as a basement garage, which is acceptable in the context of a low density residential area.
Secondly, I consider that, based on the geotechnical report, there will be no adverse impacts on adjoining properties as a result of the extent of excavation. The criticisms of Ms Chikkerur concerning the geotechnical report cannot be accepted in circumstances where she has no expertise in geotechnical engineering. The report makes it clear that any vibrations, if carried out in accordance with the report, will be below the threshold levels for building damage on adjoining properties.
Thirdly, the Council has not raised any contention concerning the drainage of the groundwater from the site, which is addressed in the geotechnical report and by a proposed condition of consent in the without prejudice conditions. The geotechnical report sets out the requirements for dealing with groundwater. Consistent with the report, proposed condition 8 requires, prior to the issue of a construction certificate, design changes to provide a suitable drainage method for subsurface waters and drainage around the basement walls. The applicant has agreed to that condition.
Fourthly, each level of excavation is within the footprint of the works on the levels above and at least 1208mm away from the boundary with adjoining properties. In circumstances where the parties have agreed that the first floor balcony should be redesigned to increase its setback to the front boundary to 6.37m, the lower basement will protrude beyond the floorplate of the ground and first floors by 1.17m at the front of the site. Nevertheless, due to the topography of the site, the excavation for the lower level of the basement is still within the footprint of the slab above, including at the front area, where the slab above provides the level entrance to the dwelling. The fact that excavation is limited to the footprint of the above-ground works is a measure of acceptability, consistent with Control 1 in Section 7 of Part 6.1.3 of the GRDCP.
Fifthly, a legitimate use of the basement has been identified that is consistent with the residential purpose proposed in the development application. It is for the storage of large format artworks, as well as for a dark room and the storage of art supplies.
Further, I agree with Mr Neustein's observation that the creation of a precedent for large basements is unlikely, due to their cost. However, if that is how future residents wish to increase storage on their property, then each application would be assessed on its merits to ensure that it is acceptable in context and has no adverse impacts. Accordingly, I do not accept that the potential for an adverse precedent for basements that exceed the controls in the GRDCP is a reason to refuse the proposed development, particularly where the basement has no impact.
For those reasons, notwithstanding that there are breaches of the GRDCP, I am not persuaded that there are any detrimental impacts that will be occasioned by the proposed excavation and the size of the basement, and, as such, neither of these matters warrant refusal of the development application.
[12]
For the reasons set out above, none of the contentions raised by the Council warrant refusal of the development application. The proposed development is permissible on the site, complies with the relevant development standards, and has acceptable impacts. Based on the geotechnical report, I have considered the matters in cl 6.2 of the GRLEP. I am satisfied that the essential services required by cl 6.9 of the GRLEP are either available or adequate arrangements have been made to make them available when required. Further, I am satisfied of each of the matters in cl 6.12(4) of the GRLEP concerning landscaping and privacy.
I have considered the provisions of the GRDCP, and determined that there is either compliance with those provisions or the non-compliance does not warrant refusal of the development application. Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential use, it is unlikely to be contaminated.
As such, there is no basis upon which to refuse the development application, and it should therefore be granted, subject to appropriate conditions of development consent.
[13]
There is a dispute between the parties on a number of the conditions of consent. The applicant opposes the following conditions sought to be imposed by the Council:
A deferred commencement condition requiring an amended geotechnical report "regarding groundwater considerations".
A deferred commencement condition requiring changes to the stormwater design to remove any conflict between the stormwater plan and the landscaping plan regarding the proposed trees within the onsite detention basin, and two operational conditions to require that the stormwater infrastructure "must not conflict with the planting of all trees and other vegetation".
A deferred commencement condition requiring a weir to the onsite detention system, in the following terms:
[14]
"Provide a weir to the OSD system with adequate freeboard to the building finish floor level (minimum 250mm) for example with additional protection such as adding brick layers to the surroundings of the water storage area or similar."
[15]
Conditions requiring trees to be planted at a minimum of 3m away from any boundary or structure (condition 23(a) and 42(a)).
A condition preventing any grade changes within the TPZ of any tree to be protected (a sub-set of condition 25).
[16]
In addition, the applicant disputes the wording of the condition requiring the amended plans for an increased setback for the first floor balcony. The applicant seeks wording that allow the plans to be provided to the certifier, without any approval process, and prescribes plans "providing an increase in the front setback of the first floor balcony of dwelling 1 by at least 1.17m".
In relation to each of the above, I make the following findings.
Firstly, the deferred commencement condition requiring an amended geotechnical report "regarding groundwater considerations" lacks clarity and is not supported by evidence of a geotechnical engineer that something is lacking in the geotechnical report concerning groundwater considerations. As set out above, the drainage of the groundwater from the site is addressed in the geotechnical report and by a proposed condition of consent in the without prejudice conditions.
Secondly, the deferred commencement condition requiring changes to the stormwater design to remove any conflict between the trees and the stormwater infrastructure is vague, lacks certainty, and is unnecessary in circumstances where the stormwater engineer who designed the stormwater concept plan has indicated that the onsite detention basin can accommodate the trees proposed, and where Mr Tesoriero considers that the area is sufficient to enable the plantings to occur. The alternative condition proposed by the applicant is instead sufficient to deal with the conflict identified, which is an operational condition as follows:
[17]
"The planting of trees and vegetation in the front setback is to be supervised by the Applicant's landscape expert, in conjunction with the stormwater engineer, so as to ensure no conflict with the proposed OSD and stormwater infrastructure, in accordance with Council's stormwater policy."
[18]
Thirdly, the deferred commencement condition requiring a weir to the onsite detention system lacks clarity about what is actually sought, and is not supported by evidence from a stormwater engineer as to its appropriateness.
Fourthly, the conditions requiring trees to be planted at a minimum of 3m away from any boundary or structure, and preventing any level changes within the TPZ of retained trees, is totally contrary to what is sought in the proposed development, which nevertheless includes the retention of significant trees and the planting of trees. There is no evidentiary basis for either of those requirements.
Finally, I accept the wording proposed by the Council for the condition concerning the increase to the first floor balcony setback for dwelling 1. The plan should be approved by the appropriate person in the Council, and I prefer the Council's wording, which makes it clear that the amendment is to the front setback of the first floor balcony by increasing the setback.
The conditions of consent provided by the parties have been amended to reflect my findings above, and are contained in Annexure A to the orders below. In Annexure A, I have also removed references to attached documents that are not actually attached, and changed a cross-referenced condition in condition 57 from condition 19 to condition 20.
[19]
(1) The appeal is upheld.
(2) Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.
(3) Exhibits 1, 2, F and G are returned, and the remaining exhibits are retained.
23 January 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") Annexure A is amended to correct the date of determination.
Parties
Applicant/Plaintiff:
Eskander
Respondent/Defendant:
Georges River Council
Legislation Cited (5)
Planning and Assessment Act 1979
Government Act 1993
Planning and Assessment Regulation 2021
Environment Court Act 1979
Civil Procedure Rules 2005
Cases Cited (11)
Owner's consent (contention 1.2)
The Council raised a contention that the development application relates also to the use of Lot 8, through which access is required to dwelling 2 from the public road known as David Place. Lot 8 is owned by the Council, and the owners' consent to the development application has not been given by the Council. The Council's contention asserted that owner's consent is required by s 23 of the EPA Regulation for a development application to be made, and its absence means that the development application cannot be granted.
However, the Council now agrees that the Court, for the purpose of determining the subject appeal, can exercise the power of the Council to give the necessary owner's consent required by s 23 of the EPA Regulation so as to enable it to lawfully determine and dispose of the development appeal. This function arises pursuant to s 39(2) of the LEC Act (see Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34]).
Accordingly, the Court can exercise the function of giving owner's consent for the development application, which seeks the use of Lot 8 for vehicular access to dwelling 2, and this contention does not warrant the refusal of the development application on the appeal.
Permissibility (contention 1.1)
The Council contends that the application must be refused on the basis that it proposes a use for the purpose of 'an information and education facility' which is a prohibited use in the R2 zone. It advances this contention on the basis that the proposed basement for dwelling 1 includes an area for large artwork storage and an area that could be used as a viewing platform to the large artwork storage area, which it says is an art gallery. An information and education facility is defined in the GRLEP as follows:
information and education facility means a building or place used for providing information or education to visitors, and the exhibition or display of items, and includes an art gallery, museum, library, visitor information centre and the like.
In support of this contention, the Council submits that the extent of the floor space dedicated to the storage and display of art goes beyond the limit of what can be accommodated in a dwelling house use. The Council submits that it is therefore a separate and independent use of the land. In support of this submission, it relies on the decision of Wollondilly Shire Council v Kennedy [2023] NSWLEC 53, in which the Court found that a use for the storage of a large number of vehicles "is a separate, independent use of the Land, going well beyond use as a garage for cars used in daily life by the occupants of the house" (at [114]). In that decision, the Court also pointed out that "the subjective intention of the occupier of a dwelling cannot inform use for a planning purpose" (at [117]).
The Council's position in this regard is supported by the evidence of Ms Chikkerur, who opines that the scale of the artwork storage area raises concern and the mezzanine basement level acts as a viewing gallery, which means that it is not merely being used for storage. Ms Chikkerur therefore says that the proposed storage is of such scale and intensity that it is capable of an independent use that is separate to the ordinary use of the dwelling.
I am not persuaded that this contention has any proper basis. There is no 'information and education facility' in the form of an art gallery proposed within the proposed development. The plans clearly show the area within the basement of dwelling 1 as a storage area for large artworks, supported by the Statement of Environmental Effects dated 27 March 2023, which describes the nature of the artworks to be stored. It is axiomatic that the storage area will need an area for inspecting or viewing the stored goods, but that does not make it an 'information and education facility' in the form of an art gallery, in the same way that displaying art at your dwelling does not make your dwelling an 'information and education facility'. There is not a skerrick of evidence that "visitors" will be received at dwelling 1, so as to meet the definition of 'information and education facility'.
As set out above, cl 6.9 of the GRLEP precludes the grant of development consent unless the Court, exercising the functions of the consent authority is satisfied that a number of essential services "are available or adequate arrangements have been made to make them available when required". One such essential service is suitable vehicular access.
The Council contends that, given there is no legal right of access over Lot 8, which is owned by the Council, adequate arrangements have not been made to make vehicular access to dwelling 2 available when required. The Council points out that the Deposited Plan for Lot 8 indicates that it is on a separate allotment to the land dedicated as a public road and now known as David Place. The Council's records indicate that Lot 8 is classified as operational land under the requirement to classify land pursuant to the Local Government Act 1993, but the Council has not provided details about the circumstances that caused it to be so classified.
Mr Eskander made an offer for a proposed easement for access over Lot 8, which went before a meeting of the Council on 23 October 2023. The minutes for the meeting contained a recommendation for refusal. The Council resolved to refuse the granting of an easement, although that resolution is not in evidence before the Court. Prior to this, on 25 September 2023, Mr Eskander commenced Class 3 proceedings seeking an easement over Lot 8, pursuant to s 40 of the LEC Act.
The Council submits that cl 6.9 of the GRLEP is a jurisdictional pre-condition that cannot be satisfied by a deferred commencement condition. In support of its position, it relies on the decision of the Court in Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155, in which Pain J found that, at [30]:
"the Court must have regard to the access arrangements in granting consent to the current development application and could not grant consent to a development if it was not satisfied that legal access was adequate and available".
The Council also relies on the decision of the Court in Fitton v Central Coast Council [2022] NSWLEC 1215, in which Commissioner Dickson acknowledged that suitable vehicular access comprises of three components: an adequate physical method of access, a proprietary right or entitlement to traverse the land, and planning permission to use the relevant land for the purpose that access will serve (see [47]). The Council submits that an enforceable right is required to demonstrate that adequate arrangements are in place.
Further, the Council submits that the imposition of a deferred commencement condition is not sufficient to satisfy cl 6.9. The Council relies on the decision in Fitton v Central Coast Council that such a deferred commencement condition "defers determination of a critical matter to post determination and leaves unresolved an essential part of the development consent" (at [59]), which draws from the Court's decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, in which Preston CJ found that you cannot defer consideration of a matter required to be considered prior to the grant of development consent.
Lot 8 and the public road
Section 6 of the Roads Act 1993 makes it clear that the owner of land adjoining a public road is "entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road". If Lot 8 is a public road, then the owner of the site would have an entitlement to access across the boundary between the site and Lot 8.
A public road is defined in the Dictionary to the Roads Act as:
(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and
(b) any road that is declared to be a public road for the purposes of this Act.
Section 249 of the Roads Act, which is identical to s 701 of the Local Government Act provides the following:
249 Evidence as to whether a place is a public road
(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road.
(2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown, etc).
Lot 8 forms part of a thoroughfare in the nature of a road, and is so used by the public. As observed at the site inspection, it is not fenced off from David Place or from the properties to the east or west, and it is sealed in the same way that David Place is sealed. However, this is not sufficient for the Court to find that Lot 8 is, in fact, a public road: see Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182.
Lot 8 is classified as operational land in the Council's land register, and was left out of dedication as a public road in the registration of the deposited plan. The Council has provided no other details about the Council resolution or the local environmental plan that caused it to be classified as operational, or the legislative regime that would have caused it to be classified that way. In the papers prepared for the Council meeting of 23 October 2023, Lot 8 is described as a "Development Control Strip".
I ought to proceed, therefore, on the presumption that Lot 8 is not a public road. Legal access over Lot 8 must be in another form, and the parties agree that this can be in the form of an easement.
The size of the basement and the extent of excavation does not warrant refusal
It is clear that the size of the basement and the extent of excavation does not comply with control 4 of Section 2 of Part 6.1.3 of the GRDCP. The limit on cut in control 2 in Section 7 does not apply to basement car parking. When considered against the ordinary needs for a dwelling house, I accept the position of the Council that the excavation is not minimised, contrary to the objectives in Section 7.
However, non-compliance with the GRDCP or its objectives does not compel the refusal of a development application. The GRDCP is a mandatory consideration pursuant to s 4.15 of the EPA Act and its provisions are entitled to significant weight, but it is well established that they cannot be determinative of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]). Section 4.15(3A)(b) of the EPA Act imposes a positive obligation on the consent authority to consider alternative solutions to achieve the objectives of standards in a development control plan, but it does not impose an obligation to refuse a development application that neither complies with the standards nor achieves their objectives.
As such, Part 6.1.3 of the GRDCP cannot operate to mandate or compel the refusal of a development. Instead, the Court, exercising the functions of the consent authority, retains a discretion as to whether or not to grant development consent in the event of a non-compliance with a development control plan. In the circumstances of the proposed development, I consider that the large size of the basement and the corresponding excavation is not sufficient to warrant refusal of the development application. I reach this conclusion for the following reasons.
Firstly, there is no streetscape or character impact from the size of the proposed basement and the extent of excavation. I accept the evidence of Mr Neustein that only visible aspects of development can contribute to streetscape impacts, and from the public domain the below-ground level will appear only as a basement garage, which is acceptable in the context of a low density residential area.
Secondly, I consider that, based on the geotechnical report, there will be no adverse impacts on adjoining properties as a result of the extent of excavation. The criticisms of Ms Chikkerur concerning the geotechnical report cannot be accepted in circumstances where she has no expertise in geotechnical engineering. The report makes it clear that any vibrations, if carried out in accordance with the report, will be below the threshold levels for building damage on adjoining properties.
Thirdly, the Council has not raised any contention concerning the drainage of the groundwater from the site, which is addressed in the geotechnical report and by a proposed condition of consent in the without prejudice conditions. The geotechnical report sets out the requirements for dealing with groundwater. Consistent with the report, proposed condition 8 requires, prior to the issue of a construction certificate, design changes to provide a suitable drainage method for subsurface waters and drainage around the basement walls. The applicant has agreed to that condition.
The Council also relies on the decision of the Court in Fitton v Central Coast Council[2022] NSWLEC 1215, in which Commissioner Dickson acknowledged that suitable vehicular access comprises of three components: an adequate physical method of access, a proprietary right or entitlement to traverse the land, and planning permission to use the relevant land for the purpose that access will serve (see [47]). The Council submits that an enforceable right is required to demonstrate that adequate arrangements are in place.
Further, the Council submits that the imposition of a deferred commencement condition is not sufficient to satisfy cl 6.9. The Council relies on the decision in Fitton v Central Coast Council that such a deferred commencement condition "defers determination of a critical matter to post determination and leaves unresolved an essential part of the development consent" (at [59]), which draws from the Court's decision in Ballina Shire Council v Palm Lake Works Pty Ltd[2020] NSWLEC 41, in which Preston CJ found that you cannot defer consideration of a matter required to be considered prior to the grant of development consent.
On this basis, the Council submits that cl 6.9 of the GRLEP operates to prohibit the grant of consent unless the Court is satisfied that suitable vehicular access is available or that adequate arrangements, in the form of an easement, have been made to make suitable vehicular access available when required.
The applicant instead submits that there is sufficient information available for the Court to be satisfied that "adequate arrangements" have been made for suitable vehicular access, which is not required until the construction certificate or occupation certificate is issued. The applicant points out that that there is no issue concerning access over Lot 8 from an engineering perspective, it is sealed, unfenced and already used for the purpose of providing access to another property, and the legal right to access can be obtained through an easement. In that respect, the applicant relies on the fact that Class 3 proceedings have been commenced by Mr Eskander seeking the imposition of an easement over Lot 8 pursuant to s 40 of the LEC Act. Accordingly, the applicant submits that the Court can be satisfied that adequate arrangements for suitable vehicular access have been made and that access will be available when required.
Further, if development consent is granted, the consent is for the purpose of a dual occupancy. It is then the responsibility of the proponent and future occupiers to ensure that the use remains for the purpose of the dual occupancy use the subject of the consent, otherwise the use may become one that is either contrary to the consent, or prohibited. As I made clear in Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 at [91], "whether there is a risk that the use of the premises might evolve into a prohibited use is irrelevant to considering whether consent should be granted for a permissible use." Therefore, even if there is potential for the basement to be used for a purpose that is not permissible (such as an art gallery), this does not prevent development consent being granted for the dual occupancy, and, if consent is granted, the development consent allows the use for that purpose and does not authorise the prohibited use.
On this basis, the Council submits that cl 6.9 of the GRLEP operates to prohibit the grant of consent unless the Court is satisfied that suitable vehicular access is available or that adequate arrangements, in the form of an easement, have been made to make suitable vehicular access available when required.
The applicant instead submits that there is sufficient information available for the Court to be satisfied that "adequate arrangements" have been made for suitable vehicular access, which is not required until the construction certificate or occupation certificate is issued. The applicant points out that that there is no issue concerning access over Lot 8 from an engineering perspective, it is sealed, unfenced and already used for the purpose of providing access to another property, and the legal right to access can be obtained through an easement. In that respect, the applicant relies on the fact that Class 3 proceedings have been commenced by Mr Eskander seeking the imposition of an easement over Lot 8 pursuant to s 40 of the LEC Act. Accordingly, the applicant submits that the Court can be satisfied that adequate arrangements for suitable vehicular access have been made and that access will be available when required.
Fourthly, each level of excavation is within the footprint of the works on the levels above and at least 1208mm away from the boundary with adjoining properties. In circumstances where the parties have agreed that the first floor balcony should be redesigned to increase its setback to the front boundary to 6.37m, the lower basement will protrude beyond the floorplate of the ground and first floors by 1.17m at the front of the site. Nevertheless, due to the topography of the site, the excavation for the lower level of the basement is still within the footprint of the slab above, including at the front area, where the slab above provides the level entrance to the dwelling. The fact that excavation is limited to the footprint of the above-ground works is a measure of acceptability, consistent with Control 1 in Section 7 of Part 6.1.3 of the GRDCP.
Fifthly, a legitimate use of the basement has been identified that is consistent with the residential purpose proposed in the development application. It is for the storage of large format artworks, as well as for a dark room and the storage of art supplies.
Further, I agree with Mr Neustein's observation that the creation of a precedent for large basements is unlikely, due to their cost. However, if that is how future residents wish to increase storage on their property, then each application would be assessed on its merits to ensure that it is acceptable in context and has no adverse impacts. Accordingly, I do not accept that the potential for an adverse precedent for basements that exceed the controls in the GRDCP is a reason to refuse the proposed development, particularly where the basement has no impact.
For those reasons, notwithstanding that there are breaches of the GRDCP, I am not persuaded that there are any detrimental impacts that will be occasioned by the proposed excavation and the size of the basement, and, as such, neither of these matters warrant refusal of the development application.