Ho-Chung v Bayside Council

The evidence

The hearing is held pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 (LEC) and commenced as a conciliation conference following a site view and hearing from residents. The issues raised by the residents are summarised as follows:

Adverse amenity impacts through noise, overlooking and loss of privacy;
Raising the height of the illegally built structure will exacerbate these adverse impacts;
Existing development is unsightly and should be removed;
Site is divided and used separately which adds to adverse impacts, forces occupants of front dwelling to use front yard rather than rear yard which disturbs residents by noise emissions;
Will exacerbate parking problems;
Building has been occupied as 2 dwellings and concerned this will continue;
Out of character with local area;
Ground level has altered without providing adequate retaining walls;
Building provides poor amenity for occupants;
Contrary to planning controls;

The conciliation did not resolve the contentions in the case and the matter proceeded to hearing.
Expert engineering evidence was heard from Mr M Ngyuen for the applicant and Mr D Brewsher for the council.
They agree that the rear of the site where the subject building is located is unacceptably impacted by flooding, surface flows and sea level rise and failure to provide a stormwater and flood risk assessment of the dwelling is contrary to normal floodplain management practice.
They also agree the application is inconsistent with the primary objective of the NSW Government's Flood Prone Land Policy which is to "reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property and to reduce private and public losses resulting from floods".
They agree the council flood study indicates that the 100 year ARI flood level at the site is 2.7 m AHD and the probable maximum level (PMS) is 3.4 m AHD they also agree climate change has less than 0.1 m in impact on the 100 year flood level. Mr Bewsher has raised concerns about the accuracy of the flood level estimate at the site.
It is common ground that the proposed absorption pit indicated on the stormwater concept plan is inadequate to deal with flooding and stormwater management, the floor level of the unauthorised structure is too low, which would cause unacceptable impact to that structure as a result of surface flows, flooding and sealevel rise and that no evidence has been provided to demonstrate that the structure will be protected from stormwater and flooding inundation nor that the applicant has demonstrated the suitability of the site and the likely impacts of the development in so far as the structure impacts on drainage, flow regime and flooding. They say the current stormwater management on the site is inadequate and the risk of adverse impacts to surrounding properties is unacceptable and likely to have negative impacts on stormwater in terms of public health and safety.
To address these concerns, the experts have prepared a number of modifications that have been incorporated into the deferred commencement conditions proposed by the Council.
The first requires the floor level of the secondary dwelling to be raised to at least 3.7m AHD or, at best 0.5m above the revised 100 year flood level that would be determined through the revision of council's existing flood study. Other requirements require the documentation of relevant flood risks at the site with measures to address those risks to people and property during floods larger than 100 year ARI up to the PMF including for the preparation of a flood emergency response plan, preparation of a detailed stormwater design for the collection and disposal of all roof water run-off from the secondary dwelling with four options for disposal listed in order of preference. In addition to raising the floor, strengthening that floor including its supports so that it complies with normal building requirements and that it allows for the free flow of water under the structure without obstruction and can withstand the water loadings including for debris and buoyancy effects during a PMF event. Such strengthening should be certified by a structural engineer. Subject to a chartered engineer providing certification and supporting hydrological calculation which demonstrate that there will be negligible impact to downstream flooding problems as a result of not providing on-site stormwater detention (OSD) facilities, the experts consider that specific OSD facilities are not required for the secondary dwelling.
Mr Bewsher says these documents should be assessed by the council whereas Mr Ngyuen says the assessment could be undertaken by a certified engineer.
The increase in the floor level of the building amounts to 800mm although Mr Ngyuen says that 3.2AHD may be satisfactory subject to the final levels being determined through additional flood modelling.
Neither expert had assessed the depth of capacity of the existing Sydney Water trunk drainage system and therefore could not assist the Court in determining whether all of the proposed disposal options were viable nor whether Sydney Water would consent to the connection. Other alternate systems were proffered during the hearing including additional onsite storage tanks however, again no details were provided.
The experts agreed that due to the levels of the site and adjacent development there would be ponding within the rear setback area until this is absorbed or overtops the existing retaining wall.
At the conclusion of the hearing, no specific design for the disposal of stormwater had been determined. The proposed draft deferred commencement conditions are in the following form: DC1 Flood risks Within 2 months of the grant of this consent, the applicant/owner is to provide to Council a document detailing: the relevant flood risks to people and property at the site during floods larger than 110 year ARI up to the PMF; measures to address the risks including a flood emergency response plan. DC2 Stormwater drainage issues Within 2 months of the grant of this consent, the applicant/owner must provide to Council for its assessment and approval: a document detailing relevant stormwater issues at the site; and detailed stormwater design plans for the collection and disposal of all roof water run-off from the secondary dwelling, showing discharge of stormwater to one of the three receiving points listed in order of preference below: The Sydney Water Corporation (SWC) trunk drainage system via a sealed gravity drainage system. The designs will also include obtaining approval from SWC and in accordance with AS 3500; If the disposal option above is not feasible, the existing stormwater pits in Botany Road. This would occur via a charged drainage system from the secondary dwelling to a new pit located at the front boundary and then via a gravity system from this pit to the existing stormwater pits. The design must be in accordance with AS 3500. Additionally, the engineer shall investigate and implement appropriate measures and/or demonstrate via hydrological and hydraulic calculations where required in the stormwater design to show that the existing stormwater situation will not be exacerbated by implementation of this option; If the disposal option above is not feasible, either the SWC System or the Botany Road stormwater pit via a pump-out drainage system designed for a 100 year storm event in accordance with Botany Council Part 10 - Stormwater Management Technical Guidelines - Section 7.3 (ii) to (v). Additionally, suitable contingencies are to be included in the design to account for pump failure or electrical outages. If the disposal option above is not feasible, an alternative stormwater disposal system which Council approves. DC3 On site detention (OSD) Within two weeks of Council's approval under condition DC3, the applicant/owner is to obtain and to provide to Council, for its review and approval, certification from a chartered engineer with supporting hydrological calculations, on whether impacts to the downstream flooding problems as a result of not providing OSD facilities will be negligible following implementation of the stormwater design plans approved under DC2. If the downstream flooding problems as a result of not providing OSD facilities will not be negligible, the applicant/owner must submit a detailed design and construction plans for OSD at the site within three weeks of Council's request, for Council's approval.
Expert town planning evidence was heard from Mr J Boers for the applicant and Ms A Lazaridis for the Council.
They agree the site falls within an ANEF contour 25-30 (Aircraft Noise Exposure).
They also agree the filed amended floor plans of the secondary dwelling entail inaccuracies and required some clarification, being the emission of an existing window in the ensuite bathroom (on the southern elevation of the secondary dwelling); and an existing toilet in a small store room and an external sink. They agree that the plans indicated that the toilet and sink were to be removed.
They also agree that the removal of the existing fence and lattice screening between the principal dwelling and the secondary dwelling will result in compliance with the private open space provisions for the principal dwelling house and that the structure is a secondary dwelling and not a granny flat/detached dual occupancy. The secondary dwelling complies with the FSR and height controls under the LEP.
They have identified a number of contentions which could be resolved through agreed conditions of consent. They relate to the amenity impacts for the proposed secondary dwelling and require the installation of a window along the western elevation of the study/storeroom for additional ventilation and natural lighting within that space; removal of the 2m high timber flat privacy screen to allow more sunlight into the bedroom; removal or replacement of the roof over the covered deck with transparent material to allow for compliance with the minimum two hours of sunlight between 9 AM to 3 PM on 21 June 2 principal living areas and the removal of infill panels between the pergola and roof in addition to the fence and lattice screening separating the secondary dwelling and the rear yard of the main dwelling.
The draft conditions include these requirements as part of the deferred commencement provisions.
In the joint report, Exhibit 4, there had been agreement that the phase 1 contamination report satisfactorily demonstrated that the the site does not pose an unacceptable risk to harm to human health or the environment however Ms Lazaridis resiled from that position when she became aware that the phase 1 contamination report had been prepared by Mr Boers rather than what she said would be a person suitably qualified to carry out such an assessment. Ms Saw for the applicant says that Mr Boers' planning qualifications were suitable qualifications to undertake such an assessment whereas Mr White for the Council did not accept that position and submits that further investigation was required.
It was apparent from the evidence that even if I was to accept Mr Boers was qualified to undertake such an assessment, that inadequate consideration of past historical uses of the site and adjoining land had been undertaken to draw any conclusion that the site had not been subject to any contaminating activity. In particular, no evidence of land use between 1945 and 1998 is provided. For that reason I am not prepared to accept Mr Boers' evidence in relation to contamination.
There is no agreement on whether the proposed secondary dwelling should be located on the existing setback of between 1.5 and 2.5 m from the rear boundary. Ms Lazaridis says the boundary fence is located within the site, approximately 900 mm to 1.8 m away from the structure and the location of this then reduces the distance and area available at the rear of the site so that western sun is restricted by the 4m high acoustic wall along the western boundary. She says the combination of the awning and wall will restrict sunlight during afternoon hours and a greater setback would allow a higher degree of sunlight to the principal living areas. She says the structure does not allow for adequate screening and spatial relief between the site and the acoustic boundary wall and the presence of that wall is a dominant element along the western elevation that could be softened by additional planting.
Mr Boers says the rear reduced setback remains consistent with relevant setback objectives in the DCP, given that the adjoining land use to the rear is not residential and as such has reduced amenity sensitivity. The rear setback area being surrounded on two sides by high walls of industrial development would be a space of lower quality for private open space that is "hemmed in'. The open space at the front (eastern) elevation would provide a higher amenity and would remain adjacent to the living rooms of the proposed secondary dwelling. The reduced rear setback affords more physical separation between the principal and secondary dwellings, which would enhance privacy, allow for a larger area of common open space between the dwellings as opposed to to smaller areas (with a larger rear setback as open space). A larger common area of open space would allow for higher utility than a divided space.
During the hearing, the experts agreed that subject to the removal of concrete hard paved area the amount of landscaped area that would be provided would satisfy the DCP requirements of 40% of site area and draft conditions reflecting requirement are proposed.
In relation to public interest, Ms Lazaridis says the structure in its current form is not in the public interest in view of the objections received by the Council. That is because it is not being constructed in accordance with the Council controls and will set an undesirable precedent for similar structures in the area to be built with nonconforming features, limited amenity and on flood prone land. Additionally, she says it is not known whether the structure is sound as there was no assessment against the requirements of the National Construction Code (NCC).
Mr Boers says the only non-compliance with the Council controls is the rear setback and that this variation is acceptable and that the other issues raised by objectors have not been substantiated. He says it is unclear whether the information that has been provided in a structural report addresses compliance with the NCC and that a further report could be provided if necessary.
The experts do agree that the secondary dwelling would provide an additional form of affordable rental housing in the area.
Ms Lazaridis says the external environment and road noise should be considered and address within an amended acoustic report with discussion on whether the land use will be impacted or will generate additional noise and whether the structure is noise attenuated.
Mr Boers says that as the site is within the ANEF contour 25-30 the DCP requires assessment of the external environment to be assessed in relation to aircraft noise. He has undertaken an assessment of the external environment which he says satisfies the requirements of clause 3J.2 9c3 of the DCP and that road noise from Botany Road is not a significant constraint to the proposal, given its lower level of sensitivity to noise and intensity of development. In addition, the secondary dwelling is setback approximately 40m from Botany Road and the principal dwelling blocks a great deal of any noise.
Mr Boers did not provide any basis for his conclusions other than reliance on an acoustic report lodged with the application that dealt with internal noise. He did not consider the time that residents would be exposed to aircraft noise nor was he sure what the likely acceptable threshold for external noise would be, stating that it was "subjective" as is sensitivity. He concludes that the likely 81dBa exposure would be acceptable. He made no reference to the relevant Australian Standard in reaching this conclusion. Based on his limited explanation of the acoustic issues I do not accept his evidence on this issue.
In relation to whether the structure has been built in accordance with the NCC, the applicant relies on Exhibit E, a document entitled "Structural Report - Existing Secondary Dwelling". It is signed by Anthony Yialousis, an engineer who was not an expert in the proceedings. A review of the document shows that its purpose is to consider whether the building could be raised to 3.7AHD rather than whether it is compliant with the NCC. It includes comments such as "raising the structure can be carried out by providing suitably sized steel/timber support beams to the underside of the floor joists to allow lifting by hydraulic type jacks, the above mentioned floor beams can be incorporated into the structure to allow for the dwelling to be designed to withstand flood water loading, buoyancy effects and allow for passage of floodwater below the building" and "details not shown in this report do no relieve the compliance with other codes, standards and practices".
Mr Boers stated that he was present at the site during the time the engineer inspected the building. He advised the engineer used a stud finder to ascertain the structure of the wall however did not remove any wall or roof sheeting.
The site view included observation of the existing support structures and the spacing of those structures. Based on my expertise, I do not consider that the spacing of those structures is adequate and that there is sufficient evidence provided to ensure the structure would comply with the NCC. This places doubt as to whether any of the structure would comply with the code.

Conclusion and findings

It is apparent that the application currently before the Court is inadequate and does not allow for a proper assessment of likely impacts of the proposal. Nor does it pass the necessary threshold tests of relevant environmental planning instruments.
I do not accept the proposition advanced by Ms Saw that the failure of the applicant to provide an appropriate level of information can be overcome by the grant of a deferred commencement consent. That is not the purpose of s80(3) of the Environmental Planning and Assessment Act 1979 (EP&AAct). To take such approach provides no certainty to the Court that the application could achieve the objectives of the planning controls and result in acceptable amenity impacts both to the adjoining properties and internal to the site.
Having regard to the evidence available, I am not satisfied that the development is appropriate or accords with relevant planning instruments and controls.
There is no certainty that the site is suitable for residential development as required under s7(1)(a) of SEPP55. Stormwater disposal and flooding impacts have not been resolved.
Inadequate information has been provided in relation to whether the development would meet appropriate noise criteria relevant to aircraft noise within the proposed external open space areas. Whilst not a mandatory consideration pursuant to the provisions of SEPP Infrastructure, no proper analysis of the impacts of road noise has been undertaken.
There has been no evidence that the building as constructed has been designed to satisfy relevant provisions of the NCC.
In addition, I accept Ms Lazaridis' evidence that the internal amenity of the proposed dwelling is poor, it has inadequate solar access and should be redesigned to address these shortcomings.
In relation to the rear setback, I consider that given the constraints of the site and its proximity to adjacent industrial development it would be appropriate to provide for a reduced setback however that setback should be determined through a proper analysis of solar penetration to living rooms rather than adopting the setback proposed by the applicant. Consideration of privacy is also required, particularly as any building would be higher than existing ground levels and requires stair/ramp access which is likely to exacerbate overlooking of adjacent properties.
For the above reasons, the council is vindicated in its decision to refuse consent and the applicant may have been better placed to address the raft of outstanding matters than run this appeal. The Court cannot be satisfied that the application is an appropriate development of the site and therefore consent cannot be granted.
The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application 15/146 for the use of an unauthorised single storey building located at the rear of the property at 1200 Botany Road, Botany as a secondary dwelling is refused consent. 3. The exhibits, other than exhibits 1 and A, are returned.

Sue Morris Commissioner of the Court

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Judgment (9 paragraphs)

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