Mackenzie Architects International Pty Ltd v North Sydney Council

Whether owners consent is required

1. At the close of the hearing, the parties were directed to file written submissions on the contention at [17(1)] as time did not permit submissions to be heard in in person on that point.
2. The Joinder argues that the proposal seeks development consent for the purpose of dual occupancy (attached) development, the use of which includes the driveway. Absent the consent of the Joinder, the Court has no power to grant consent.
3. The proposed development relates not only to the whole of Lot 4, but also to that part of Lot 3 that forms the northern half of the driveway, which serves the use of the proposed dual occupancy (attached) in five ways: 1. Providing vehicular and pedestrian access to the dwellings 2. To facilitate bins and bulky waste for collection on Kurraba Road 3. Waiting areas for moving cars stored in the car stacked for unit 2 4. Provision of services to the dwellings, including electricity, water and communications) 5. For construction access to facilitate building works to serve the use for the purpose of a dual occupancy development.
4. As "Use' of land is defined in s 1.5 of the EPA Act as 'development', and the use of the driveway relates to the new use of dual occupancy (attached), the consent of the Joinder is a jurisdictional prerequisite.
5. By contrast, Mackenzie Architects argues that no new use is sought for the land that is subject to the right of carriageway. No consent is sought for use of the driveway, as it will continue to be used consistent with the easements that apply.
6. Instead, the consent sought is for the purposes of a dual occupancy, being a form of building on Lot 4. No part of the proposed dual occupancy for which consent is sought is on the driveway access handle. The development the subject of the development application does not propose development on the Joinder's land and those authorities on which the Joinder relies are distinct from the circumstances in this case, most notably because the proposed development in those cases involved development on land owned by a person which had not given their consent to carry out that work.
7. Instead, an extensive line of authorities support the position put by Mackenzie Architects, including the High Court in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; [1996] HCA 20 that found whilever the use of land was a form of development, that did not mean the use of adjoining land was land over which the development was being carried out.
8. More recently, the Court held that the consent of the owner of land burdened by a right of carriageway was unnecessary for subdivision and construction of two new dwellings on subdivided lots as the servient land did not form part of the development application (Oboodi v Hornsby Shire Council [2019] NSWLEC 1287). Likewise, the Court has found subdivision of one lot into two lots to permit the construction of a new dwelling on the newly subdivided lot did not require consent of the servient tenement (XYZ Services Pty Limited v Inner West Council [2024] NSWLEC 1765).
9. While my preliminary view is that the proposed development is sufficiently remote from the driveway to favour the submissions of Mackenzie Architects, for reasons that will become clear, it is not necessary to make a finding on this point.

The proposed development exceeds the height standard

1. The proposed development exceeds the height of building development standard of 8.5m that applies to the site by operation of cl 4.3(2) of the North Sydney Local Environmental Plan 2013 (NSLEP).
2. The Council initially contended that the excessive height of the proposal results in development that is incompatible with the existing and desired future character of the area, and imposes a number of adverse impacts on surrounding properties, including view loss.
3. However, Council's experts in town planning and urban design record their substantial agreement on height in the joint expert report filed 5 December 2024 (Exhibit 1R-2).
4. The experts that conferred include: 1. Mr Garry Chapman, town planning and Mr Dugald Mackenzie, urban design on behalf of Mackenzie Architects 2. Mr Scott McInnes, town planning and Mr Peter Smith, urban design on behalf of the Council 3. Mr Paul Grech, town planning on behalf of the Joinder.
5. The experts agree that the height exceedance is minor and is lower than the height of the existing dwelling on the site. As such, the proposed height will not be unduly prominent in its locality or impose unreasonable impacts on the amenity of surrounding properties.
6. Subsequent to this agreement, I note without prejudice conditions of consent were agreed that further reduced the height of plant species proposed on the green roof.
7. Furthermore, the experts agree the proposal will also appear compatible when viewed from Shell Cove and from Cremorne Point opposite as it is set back from the foreshore, screened by a mature Cheese Tree, responds to an abrupt change in level on the site and does not affect solar access to adjoining development.
8. Mackenzie Architects relies on a written request authored by Mr Gary Chapman in accordance with cl 4.6 of the NSLEP and dated 4 December 2024 (the written request), which states the exceedance is measured between 9.29m-9.35m and is due to the steep fall in topography of 14.55m when measured from the western boundary to the eastern boundary.
9. In summary, the written request states that to require strict compliance would be unreasonable because the proposal is lower than the existing dwelling on the site and the exceedance is minor and confined to the north east of the site, notwithstanding the abrupt change in topography. Equally, the exceedance imposes no adverse visual or other amenity impacts on properties it adjoins.
10. In fact, the experts are largely agreed that as the exceedance remains below the level of the ridgeline of the existing dwelling, the result would be an increase in water views to Shell Cove from the neighbour at Unit G01/182 Kurraba Road but for that part of the view that is already obscured by a Tree identified as Tree 1 in the Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 10 August 2023 (Exhibit D, Tab 6), where the stand-alone garage and Study is proposed.
11. While this may be the agreement of the experts, I am not convinced that the extent of consideration given to the likely impacts by the experts extends to the manner by which the development is proposed to be given effect, in the event development was granted. As that deficiency is unrelated to height, but is instead responsive to contentions pressed by the Joinder, I propose to set out the reasons why consideration of the written request is otiose, and instead provide reasons as to why the appeal should be dismissed and the development refused.
12. It is relevant at this point to explain the characteristics of the site and its context in greater detail. The topography in the area slopes steeply from Kurraba Road to the foreshore of Shell Cove.
13. The site is itself a battle axe block with the benefit of a right of carriageway over the access handle of the site. Presumably because of the history of subdivision over time, and the desire for vehicle access to each lot, a dominant part of the streetscape is large areas of hardstand visible from the street frontage in front of, and between, buildings.
14. So it is with the subject site. The access handle is a hardstand driveway, sloping downward from Kurraba Road to an area of proposed hardstand, in which the turntable is proposed.
15. The eastern portion of the site is a combination of steep natural ground, and retaining walls that step down to an existing timber boatshed to the north of the site, and a narrow paved terrace to the south supported on a sandstone seawall, depicted in Exhibit 2-R3, beyond which are the lapping waters of Shell Cove.
16. It is also relevant to note here that the eastern portion of the subject site, as is common in the area, is Sydney Harbour foreshore. It is nominated to be within the Sydney Harbour Catchment, and also within the Foreshores and Waterways Area according to Ch 6 of Statement Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).
17. A mature Cheese Tree occupies the eastern portion of the site, close to the foreshore.

Earthworks are proposed

1. The proposed garage slab to the west of the site is at a reduced level (RL) of 16.11m AHD (architectural plan A2103) while the RL of the lower ground floor slab is shown at 5.135m AHD.
2. The result is a change in the order of 11m between the Unit 01 garage slab, and the level of the lower ground floor slab and external terrace forming the private open space to the eastern extent of the development.
3. This is not to suggest that all of the 11m level change is new excavation.
4. The change in level, and depth of excavation proposed, is perhaps best depicted in Section BB, re-produced below:
5. A Preliminary Geotechnical Assessment prepared by Martens dated December 2024 (Geotechnical Report) states the proposed excavation will likely extend into the zone of influence of neighbouring properties and/or other infrastructure, and for which excavation support such as batters, shotcrete, shoring walls and ground anchors are all explored at Section 4.3 of the Geotechnical Report.
6. The results of two Dynamic Cone Penetrometer Tests (DCP104 and DCP105) undertaken in the eastern portion of the site, close to the Cheese Tree, indicate the presence of rock at between 650-950mm below the surface (Exhibit M, Attachment C), described at pp 6-7 as likely to be highly weathered bedrock, inferred to be very low strength sandstone between 650mm-1900mm below the surface.
7. Mr Grech's evidence is that given the proximity of the excavation to adjoining properties and Shell Cove, a detailed construction methodology is required to understand how risks inherent in the earthworks are likely to be addressed.
8. The Joinder submits there is no assessment of the volume of excavated spoil likely to be removed from the site. As such, no weight can be given to the number of truck movements estimated in the construction management plan (CMP).
9. Four truck movements are estimated per day during demolition, 6 per day during excavation and 1 per day during construction. The CMP states that only small rigid vehicle (SRV) trucks will be used.
10. The likely predicted volume of spoil is the kind of detail Mr Grech considers reasonable to expect in a CMP. Such detail is essential to any consideration of impacts on neighbouring properties as a kind of 'off site impact' arising from the construction phase.
11. This is not merely a theoretical concern, but is asserted to be a very real and present challenge for the Joinder whose daily vehicle movements are likely to be obstructed by trucks movements, concrete pumping lines from the kerb on Kurraba Road and the like.
12. Mr Grech provides rough estimates at par 127 (g) of the joint expert report that suggest somewhere between 322-570 truck movements would be required to remove spoil from the site. I note these figures are not challenged, other than for the experts for Mackenzie Architects to defer such a task to a builder, should the Court grant development consent.
13. The CMP contains sections devoted to Traffic and parking impacts, Erosion and Sediment controls and silt arrestors, Site office and bins, noise, emergency evacuation and the like. The CMP is to be read in conjunction with other documents.
14. For example, the CMP cites an Erosion and Sediment Control Fence (the sediment fence) to "aid in minimalizing the environmental impact on surrounding flora and fauna". The Stormwater Plans show the extent of such a fence on the Sediment and erosion Plan (Exhibit C, drawing No. PS01-B300), and details appear on Drawing No. PS01-B310 (fence details).
15. While the CMP is titled 'Construction Management Plan and Construction Methodology', I agree with Mr Grech's evidence that it lacks information that could be reasonably expected of a CMP, particularly for the nature of the development proposed, and on a site with these particular characteristics.
16. The particular features and elements of the proposal give rise to issues that I accept are deserving of some careful consideration. The deficiencies in the CMP are, in my view, particularly relevant for reasons I will now outline.
17. Section BB illustrates the extent of excavation required to achieve the lower ground floor and private open space to Units 1 and 2. Excavation to such a depth, and acknowledged to be in the zone of influence of adjoining dwellings, raises real questions as to the particular methodology to be employed to achieve that excavation. The Geotechnical Report recommends earthmoving equipment be used, such as hydraulic earthmoving equipment with rock breaker attachments, rock sawing and hydraulic hammer equipment (p 10). This equipment is not identified in the CMP.
18. The CMP attaches three Construction Site Plans (collectively, the Staging Plans) (Appendix C), depicting key aspects of what is described as 3 stages. 1. Stage 1 shows the demolition of the existing dwelling, garden beds and Tree 1. 2. Stage 2 shows the use of the western portion of the site for truck manoeuvring and an area for the storage of excavated material. The extent of excavation is shown to the east for this. 3. Stage 3 shows six construction-related aspects including the installation of the turntable and landscape area, excavation and construction of the car lift and study over, and of the main dwelling.
19. The CMP does not provide clarity on how the excavation shown in Stage 2 is to be undertaken. It would seem reasonable to expect that earthmoving equipment is required to access the area requiring excavation from the western portion of the subject site. However, once that work is completed, any such equipment is located 11m below the western portion of the site, with limited setbacks to the north and south of the site to make the return journey up to Kurraba Road. Those setbacks are presumably battered, or shored or anchored in accordance with the recommendations of the Geotechnical Report. It is self-evident that such equipment would have to then be returned back to the upper level by crane, or leave the site by barge, moored close to the seawall.
20. Returning momentarily to the access handle, it is questionable whether a crane could even access the site. Truck Swept Paths prepared by Terraffic (Exhibit L, Appendix B) demonstrates access is possible for SRVs to navigate the driveway. However, it is unclear whether a crane of a size required to manoeuvre digging equipment, if one is required, is able to access the site. Presumably as one is not proposed, no modelling was considered necessary.
21. However, this gives rise to the next issue.
22. Mackenzie Architects asserts that neither a crane or barge will be used at any stage of construction. Absent a crane or barge, the site, once excavated, would appear to be cut in two by a vertical drop of 11m in height with limited scope for access by plant and equipment required for formwork, propping, materials delivery, storage and movement around the site. Just as the driveway may be too narrow for a crane, the Cheese Tree stands between the excavation and the only location for a barge to moor, precluding this as an option.
23. The final issue arises from what is not shown on the Staging Plans. Reference is made at p 8 of the CMP to the site office and bins located at the entrance to the site, adjacent to the entrance. However, neither of these facilities, essential for a site of this scale, are depicted in Stage 1, 2 or 3. The Waste Management Plan, prepared by Mackenzie International Architects dated 4 September 2023 states, on p 4, that sufficient area will be provided for waste storage, sorting waste and recyclables. Three bins are required; for light building materials, heavy building materials and for brick, concrete and tiles. Furthermore, a statement is made at pp 6-7 of the CMP that parking will be available on site for workers. Reference to the Staging Plans clearly shows there is no space for parking onsite, just as there appears no space for site office or bins.
24. The only conclusion to draw from this is that the CMP does not adequately address the particular constraints of the site, or the particular construction challenges inherent to the development. The volume of spoil to be removed from the site and the means by which it is excavated and brought up 11m from the base of the excavation to the storage nominated in the Staging Plans is unknown. In my view, it has not been demonstrated that there is sufficient space at the upper level of the site for plant and equipment essential to the construction of the development. What earthmoving equipment is used, and whether it can manoeuvre around the site, or be extracted once excavation is complete, is also doubtful.
25. Mr McInnes considers the question of construction management to be the preserve of a builder. While that may often be the case where a site allows for proper receipt of deliveries and manoeuvring of plant and equipment, I accept Mr Grech's evidence that the potential impacts of construction on a site such as the subject site is an essential matter that cannot be deferred. I also consider the particular challenges of the development proposed on a site with such constraints are not only logistical but are physical.
26. With no criticism intended, it would appear the deficiencies in the CMP arise from the expertise in its preparation. The introduction to the CMP states the author is Motion Traffic Engineers, commissioned to prepare a construction traffic management plan. The second paragraph refers to the CMP as a Construction Traffic Management Plan and Construction Methodology. The third paragraph refers to the CMP as a Construction Management Plan and Construction Methodology. It would appear to be primarily a traffic management plan and deals only secondarily with matters of construction management and methodology.

Water quality

1. The Sediment Fence referred to at [59] is shown around the perimeter of the north, east and southern boundaries of the site.
2. The fence details show star pickets are to be embedded 600mm into the ground at centres of no more than 2.5m. A self supporting geotextile fabric is proposed to span between the star pickets, with its lower section embedded in a continuous trench.
3. To the east of the site, the Sediment Fence is shown fixed to the paved terrace above the seawall and, more curiously, superimposed on the gable roof of the boat shed. Clearly, the fence detail is unsuited to these locations and would not arrest sediment or other pollution from travelling over the site towards Shell Cove. When one assumes this may be an error, and the sediment fence might in fact be proposed to continue along the top of the existing retaining wall west of the boatshed, that assumption is put to rest by the sections which show new works to build up the height of the retaining wall, and so would necessarily obviate a sediment fence in that location.
4. The Sediment and Erosion Plan also shows geotextile fabric and mesh gravel filter applied to the five stormwater pits that are also depicted on the Drainage Plan at PS01-E100.
5. As the filters are shown on the Sediment and Erosion Plan, I understand them to be intended to be used for the duration of construction.
6. However, no such filtering devices are shown to the five stormwater pits on the Drainage Plan. Neither is there a note or detail to this effect elsewhere in the Stormwater Plans.
7. The consequence of this drainage regime is that stormwater runoff that travels down the driveway, or within the hardstand to the west of the site, is captured and diverted, untreated it would seem, to the stormwater drainage pipe located in the drainage easement to the south of the site. The outflow of this pipe is directly into Shell Cove.
8. While not shown anywhere in the Stormwater Plans, roof water is assumed to be captured and, according to the Post Development Catchment Plan on drawing PS01-E700, a portion of it is diverted to the rainwater tank. There is no filtering device, such as a first flush system, applied to the 3,000L rainwater tank shown in the eastern portion of the site.
9. The rainwater tank connects to a stormwater pit located in the garden bed east of Unit 01, which in turn also outflows directly into Shell Cove through the seawall. A note on Drawing PS01-E100 advises that details of the outlet are to be provided at the Construction Certificate Stage.
10. The Joinder submits it is inappropriate for the resolution of such a detail to be deferred, given the environmental values of Shell Cove and the harbour.
11. The upshot of all this is that stormwater runoff across the driveway, and western hardstand is diverted, untreated by any device otherwise nominated, into stormwater drainage to the southern setback of the site that is proposed to be discharged directly into Shell Cove.
12. It is also unclear how the car lift sump is drained, as once again, it is not drawn nor otherwise described. The level of the sump would appear to be, according to architectural drawing A2106, in the order of RL14.01 that would seemingly require excavation or trenching of some kind to connect to the same drainage path that leads to Shell Cove. Once again, absent filtering devices or other form of onsite water retention, or detention, it is reasonable to conclude, in my view, that a drain from the car lift sump would convey pollutants to the stormwater drainage that outflows, untreated, into Shell Cove.
13. A water quality assessment prepared by Martens, dated 28 November 2024 (Martens Assessment) is attached to the joint expert report of the town planning and urban design experts. The Martens Assessment is in the form of a 3-page letter that summarises the MUSIC modelling undertaken on pre-development and post-development scenarios. The results tabulate a reduction in total suspended solids, phosphorus and nitrogen, and gross pollutants. However, the means by which the post-development scenario is achieved is not explained. As such, the Court is not assisted by the Martens Assessment beyond a general statement of compliance.
14. Section 6.6 of the Biodiversity SEPP, requires the Court to form an opinion of satisfaction that the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised.
15. The Court cannot form an opinion of satisfaction in respect of water quality that would appear to flow untreated from hardstand areas used by vehicles on both the subject site, and the adjoining property to the north, being the Joinder's property, into Shell Cove.
16. Neither was the Court taken to, or could of its own volition find, any evidence that the impact of water flow into Shell Cove will be minimised. While a 3,000L rainwater tank is proposed, it does not service the southern drainage easement that is designed without any device or method to address the water flow that would appear to fall from an elevation of 15m above the proposed outflow, details of which are not provided.
17. Within the Foreshore Area, cl 6.9(3)(c) of the NSLEP requires the consent authority, or the Court on appeal, to be satisfied that, among other things, the development will not cause environmental harm such as pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or (iii) an adverse effect on drainage patterns.
18. For reasons set out above, I cannot be satisfied that the development will not cause environmental harm such as pollution or siltation of Shell Cove, either during construction, or in the operation of the development once completed.
19. Likewise, given the curious deficiencies in the location and operation of the sediment fence during construction, and the direct outflow of untreated stormwater into Shell Cove during construction and thereafter, I cannot be satisfied that the direct, indirect or cumulative adverse impact on aquatic animals or vegetation will be kept to a minimum for the carrying out of the development (s 6.7(2)(a) of the Biodiversity SEPP). Nor can the Court be satisfied that the sedimentation of Shell Cove will be minimised (s 6.7(2)(d) of the Biodiversity SEPP).
20. Not unrelatedly, cl 6.10 of the NSLEP requires the Court, in this instance, to consider the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area (subcl (3)(g)), and any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development (subcl 3(h)).
21. Given the immediate proximity of the site to the waters of Shell Cove, and to Sydney Harbour more broadly, I regard the consideration to be given to those matters at cl 6.10 of the NSLEP to be highly relevant in the circumstances of this case.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No DA 307/23 seeking consent for the demolition of the existing dwelling and the construction of a one x 4-storey dual occupancy, including turning plate and car hoist system, new access stairs within the rear setback and associated landscape works at 178B Kurraba Road, Kurraba Point, is refused. 3. All Exhibits are returned, except for Exhibits A, B, C, D, J, K and 2R-4. T Horton Commissioner of the Court

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