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[2025] NSWLEC 1256
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-22
Byrne AC
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Medium Neutral Citation: Palfreyman v Northern Beaches Council [2025] NSWLEC 1256
Hearing dates: 9, 10 October 2024
Date of orders: 22 April 2025
Decision date: 22 April 2025
Jurisdiction: Class 1
Before: Byrne AC
Decision: The Court orders that: (1) The appeal is dismissed; (2) Development application No DA2023/1213 for alterations and additions to a dwelling house at 86 Bungan Head Road, Newport NSW 2106, being Lot 76 DP 10423, is refused. (3) The exhibits are returned except for Ex A.
Catchwords: DEVELOPMENT APPEAL – excavation under existing 4 storey house to extend garage and build underground tunnel to rear of house – install vertical lift from tunnel to rear of house – steep land – earthworks – geotechnical hazard – proximity to Bungan Head cliff and ‘environmentally sensitive area’ – site suitability – whether excavation excessive – whether impacts unacceptable – desired future character – Newport Locality statement in DCP – reduced landscape area – public interest
Legislation Cited: Coastal Management Act 2016
Environmental Planning and Assessment Act 1979, ss 1.5, 4.13, 4.15, 4.16, 8.7
Interpretation Act 1987 s 58
Land and Environment Court Act 1979 ss 34AA
Pittwater Local Environmental Plan 2014, cll 2.3, 3.3, 7.2, 7.7, Dictionary
State Environmental Planning Policy (Resilience and Hazards) SEPP 2021
Cases Cited: Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338, NSWLEC 61
Brown v Pittwater Council [2012] NSWLEC 1301
Davies v Penrith City Council [2013] NSWLEC 1141
Denoci v Liverpool City Council [2020] NSWLEC 102
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Ryder v Randwick City Council [2024] NSWLEC 1590
The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158
Texts Cited: Northern Beaches Council, Geotechnical Risk Management Policy for Pittwater 2009 (July 2009)
Northern Beaches Council, Northern Beaches Local Housing Strategy (December 2021)
Pittwater 21 Development Control Plan
Category: Principal judgment
Parties: Jane Elizabeth Palfreyman (First Applicant)
Michael Douglas Palfreyman (Second Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
T Howard SC (Applicants)
C Novak (Respondent)
Solicitors:
Dentons Australia (Applicants)
Northern Beaches Council (Respondent)
File Number(s): 2024/106421
Publication restriction: No
COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council (the Council) of development application No DA2023/1213 (the DA) for ‘alterations and additions’ involving excavation to construct a tunnel under an existing house and extend the tunnel to a lift to be installed at the rear of the house, and related changes to the existing underground garage (proposed development) at 86 Bungan Head Road, Newport, NSW 2106 (the Site).
The appeal was subject to conciliation starting on Site, in accordance with s34AA(2)(a) of the Land and Environment Court 1979 (LEC Act). As no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings moved to a hearing forthwith in Court pursuant to s34AA(2)(b)(i) LEC Act.
The cliff tops of the Northern Beaches area of Sydney command magnificent views up and down the eastern coast of NSW and to the Pacific Ocean. These views create highly sought after locations in which to live and are consequently populated by what can be described as commanding residential properties.
The dwelling at 86 Bungan Head Road, currently owned and occupied by the Applicants, is one such house with commanding views to the Pacific Ocean and beyond.
The DA application form to the Council under “description of development” seeks approval for ‘alterations and additions including internal lift and reconfigured garage floor area’: Ex A tab 2, page 2. It does not mention that the proposed development also includes the excavation and construction under the house of a tunnel from street level to the rear yard of the 4-storey house and related changes to the existing garage area.
On an examination of the plans and prescribed documents that are attached to the DA form and now form part of the class 1 application, the proposed works in fact involve a major engineering project to be undertaken underneath a single residential dwelling in a steep location opposite the cliffs of Bungan Head. The major issue in this appeal is the proposed construction of the tunnel and lift.
The proposed development involves excavating and constructing an approximate 48m2 (6.0 m x 8.0 m) car bay with storage garage, 18.7 long horizontal tunnel (circa 4.6m wide x 3.4m high) from the rear of the proposed new car bay and a 3.4m x 3.7m 16 m high lift shaft, located at the rear of the house. The total excavated volume is estimated at 623 m2. The overall length of the tunnel is estimated at 22.4 m (18.7m + 3.7m): Ref: Douglas Partners report, Ex A tab 15, page 1.
It is important to make clear that the works proposed are not staged in the usual hypothetical new dwelling house DA sequence on a similar block which starts with demolition of existing structures, earthworks to clear site, excavate for underground tunnel, build 4 storey house and install lift from end of tunnel to rear level land, install swimming pool, cabana and landscaping. Rather the sequence is the other way around. House, swimming pool and landscaping completed first then excavate under the existing house from front to back for a tunnel to install a lift at the rear. Therein lies the difficulty with the proposed development.
In fact, the current DA before the Court is seeking approval to carry out a substantial engineering project which nevertheless fits within the broad definition of ‘development’ pursuant to s 1.5 EPA Act as being the “carrying out of a work”. I note there was no submission made that the proposed works were not permissible with consent. The residential use of the land is a permissible use and is not changed by this DA. Whilst ‘earthworks’ on this land requires development consent, to the best of my knowledge there is no numerical measure of earthworks or excavation that may limit the extent of excavation under an existing dwelling, for example relative to the size of the land, size of the dwelling, proposed cubic metres of earth to be excavated, permissible use under the zoning and zone objectives.
I note that Mr Howard SC states in submissions that the 632 cubic metres proposed to be excavated ‘does not exceed any numerical standard’ but no reference to a numerical standard was provided to the Court [ASUB para 15]. He further relies on the calculation of Mr Chambers but Mr Chambers conclusions are his opinion and not a standard: Ex 5, pages 14 & 15; Chambers at [pars 25 – 28].
The Applicants reasoning behind this DA is to provide level access to the existing dwelling house at the rear where the land is flat for elderly parents, a family member with mobility problems and the Applicants themselves when that need may arise (ageing in place). A principle submission of the Applicants is that for these reasons the DA should be allowed because it is in the public interest. I shall return to this later.
However, for the reasons set out in this judgment, taking into account the evidence, relevant planning controls and having regard to the parties’ submissions, I have come to the conclusion that the appeal should be dismissed and consent refused for the proposed development as follows.
In short the Applicants, who bear the persuasive onus of proof: Denoci v Liverpool City Council [2020] NSWLEC 102 per Preston CJ at [124]; have failed to make out their case that the DA be approved and consent granted to carry out the proposed development on the Site.
I was assisted in this matter by written submissions from the parties’ Counsel, for the Applicant Mr T Howard SC (ASUB) and for the Respondent Council Ms K Novak (RSUB).
Expert planning evidence was provided by Mr Robert Chambers on behalf of the Applicants and Mr John McFadden on behalf of Council. They joint conferenced but there was no agreement on the town planning issues before them as detailed in the Joint Expert Town Planning Report, Ex 5.
Procedural issues were raised by the parties in oral address regarding the scope of the Court’s inquiry into a DA for ‘alterations and additions’ and it is helpful to take note of the following general principles and relevant caselaw: [RSUB paras 15, 16]
“Whilst the application being assessed under s 4.15 of the EP&A Act is the alterations and additions identified in the DA, that does not mean that the existing development on the Site must be ignored: Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 per Preston CJ at [91]-[92]. Indeed, a consideration of the suitability of the site (s 4.15(1)(c)) and the likely impacts of the development (s 4.15(1)(b)), can only be sensibly understood within the context of the existing development.
In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780, Preston CJ considered whether the relevant enquiry for an application for alterations and additions was constrained to only the alterations and additions from development approved under a prior development consent or if a broader analysis was appropriate, having regard to the resulting development (ie the proposed alterations and additions in conjunction with existing approved development). Preston CJ at [23]-[27] ultimately held that it was permissible to consider the resulting development in its entirely. The Council says that same approach should be taken in this case. That is, whilst the development application is for the alterations and additions and not the resultant building, the acceptability of the DA may nevertheless be evaluated having regard to the context of existing approved development as a whole.”
The Site is located to the western side of Bungan Head Road and has vehicular access off Bungan Head Road. The Site has a steep cross fall to the street, with an approximate 10 metres rise from the front (eastern) boundary to the dwelling house. On the Site is an existing four storey residential dwelling-house and a double garage at street level. The house is accessed from the garage by external steps covered in part on the southern side of the house. The upper level of the Site is generally flat where the dwelling house, swimming pool, rear yard structure and landscaping are located.
To the east of the Site, on the opposite side of Bungan Head Road, the land is identified as ‘Bluff/Cliff Instability’ on the Coastal Risk Planning Map under the Pittwater Local Environmental Plan 2014 (PLEP).
The Site is 15 metres wide, 51 metres deep and has an area of 761 sq m.
An aerial image of the Site and the surrounding properties is as follows:
The Site is zoned C4 Environmental Living (“C4”) as shown on the Land Zoning Map of the PLEP.
The Site is partly mapped as “Geotechnical Hazard H1” on the Geotechnical Hazard Map under the PLEP.
The following environmental planning instruments, development control plans and policies are relevant to the assessment of the Development Application:
Environmental Planning and Assessment Act 1979 (EPA Act).
Environmental Planning and Assessment Regulation 2021 (EPA Regulations).
Coastal Management Act 2016 (CM Act)
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards).
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport & Infrastructure).
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX).
Pittwater Local Environmental Plan 2014 (PLEP).
Pittwater 21 Development Control Plan (PDCP), in particular the following provisions:
(a) A4.10 – Newport Locality (b) B8.1 – Construction and Demolition – Excavation & Landfill (c) D10.13 Landscaped Area – Environmentally Sensitive Land (d) Northern Beaches Council - Geotechnical Risk Management Policy for Pittwater 2009*.*
Zone C4 Environmental Living
1 Objectives of zone
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To provide for residential development of a low density and scale integrated with the landform and landscape.
• To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.
On 20 December 2011 DA 194/11 was approved by the Pittwater Council for major alterations and additions to an existing dwelling, including a double garage adjacent to the street boundary, external stairs between the Site entry and the dwelling on the southern side of the garage with a roof structure over the stairs.
On 31 October 2012 the Land and Environment Court approved development application No. 148/12 for the construction of a studio and bathroom above the double garage*: Brown v* Pittwater Council [2012] NSWLEC 1301, per O’Neill C.
On 1 September 2023 the DA now before the Court was lodged with Council.
The DA was publicly exhibited and notified in accordance with the Respondent’s Community Participation Plan from 8 September 2023 to 22 September 2023.
As a result of the public exhibition and notification period, no submissions were received.
The DA was referred to Ausgrid pursuant to s.4.13 of the EP&A Act. Ausgrid provided a response stating that it had no objection to the DA, subject to conditions.
On 30 October 2023, the Respondent wrote to the Applicant advising of the issues with the DA and advised that the Respondent could not support the application in the current form.
On 15 November 2023, the Respondent received a response from the Applicant consisting of a letter responding to the issues raised with an amended proposal reducing the quantum of excavation, amended architectural plans and a letter from a geotechnical engineer.
On 25 January 2024, the Respondent wrote to the Applicant advising that the DA would be determined with a recommendation of refusal. Two options were given to the Applicant. Those two options were to 1. withdraw the application or 2. request Council to determine the application.
On 30 January 2024, the Respondent received a response from the Applicant to proceed with the determination of the application, unamended.
On 31 January 2024, the DA was refused for the reasons set out in detail in the ASOFAC22 paragraph [23] which formed the basis of the Council’s contentions which I set out below.
The Class 1 Application now before the Court was filed on 20 March 2024.
On 18 September 2024, the Applicants confirmed that they are relying on plans identified as “Revision 2” plans dated 10 November 2023 (included at Tabs 22-24 of the Class 1 Application (Revision 2 Plans).
On 27 September 2024, the Applicants advised that they propose to rely on various documents for the purpose of the s 34AA conciliation conference and hearing in the proceedings including an amended waste management plan dated 10 November 2023 (Amended WMP).
Accordingly, the plans before the Court at the hearing are partly Revision 2 and Revision 3: Ex C.
The proposed development, in particular the tunnel and lift, is shown in the following cross section plan, Proposed Sections, Rev 2:
Contention 1: Scale of development excessive – 623m3 of excavation to depth of 1.6 metres. Clause 2.3 ‘Cl Zone objectives and land use table’ PLEP; Section B8.1 PDCP ‘‘Earthworks Construction and Demolition Excavation and Landfill’; cll 7.2 and 7.7‘Earthworks’ PLEP; Section A4.10 ‘Newport Locality’ PDCP.
Contention 2: Proposed Development inconsistent with desired future character of the Newport locality. Control: Section A4.10 ‘Newport Locality’ PDCP.
Contention 3: Landscaped area inadequate – 47.2% less than control: Section D10.13 PDCP.
Contention 4: Not in the public interest, reduction in landscaping and excessive excavation for tunnel and lift shaft contrary to expectations of public and inconsistent in C4 Environmental Living Zone.
Contention 5: Insufficient information provided to enable assessment of cl 7.2 (earthworks) or cl 7.7 (Geotechnical hazards) of the PLEP.
C****ontentions 4A**,** 4B, 6**:**
The council was granted leave to amend the SOFAC to add Contentions 4A, 4B and 6 which largely concerned the bin store area (4A); whether work (rock anchors) was proposed on land at 84 Bungan Head Road (4B); and inconsistent and insufficient information on already constructed battery storage area and Tesla power banks installation (6).
Issue 1: Scale of d****evelopment Is the proposed earthworks and excavation of such a scale that the impact on the desired future character of Newport Locality area and Site landscape area is unacceptable and contrary to applicable PLEP and PDCP planning controls for a development in the C4 Environmental Living zone. [Contentions 1, 2, 3]
Issue 2: Site suitability Whether the proposal can be built on this Site or is the Site wholly unsuitable from a geotechnical and environmental perspective in this particular locality on Bungan Head. Is there sufficient geotechnical and risk assessment evidence for the Court to be satisfied as to the requirements of cll 7.2 (earthworks) and 7.7 PLEP (geotechnical hazards)? Even if the evidence is sufficient, is the Site suitable for the proposed development? [contention 1 and contention 5]
Issue 3: Public Interest Whether the proposed development is of such a scale and impact to be contrary to the public interest. Tied in with the third issue is whether the public interest is engaged by the Applicants’ proposed accessibility additions for a single private dwelling and whether this is a relevant consideration in the Court’s decision-making. [Contention 4]
“[28] In essence, the DA seeks to carry out further development on what is already a constrained Site dominated by existing built form by undertaking further significant excavation and building, whilst disregarding the current provisions of the Pittwater LEP and Pittwater DCP that apply to this development application.
[29] The existing dominating built form has resulted in the Applicants seeking to retrofit extensive excavation and elevator work adjacent to the primary building in a manner which is not responsive to the sensitivity of the Site as denoted by its zoning C4 Environmental Living and results in a development that fails to step down or along the landform to integrate with the landform and minimise site disturbance.
[30] Regrettably, it appears on the Applicants’ own case that they have purchased a property which is unsuitable for their needs. That fact cannot be used to give carte blanche to an applicant to propose what is ultimately unsuitable development for this Site. The Council’s position is that the Site is not suitable for the DA as propounded by the Applicants and that the Court should refuse the DA.”
The Applicants put their case in a different light and focus on how the Site would present to the street when the proposed development was completed. They submit that it is expected that the whole project, being a tunnel under the house and changes to the existing garage would be concealed within the bowels of the building when completed, except for the lift shaft where it emerges out of the ground adjoining the rear of the house. The Applicants accordingly argue that the proposed development is of minimal change and hence minimal if any impact. They state that the proposed development is described as ‘modest’ [ASUB para 13].
Secondly the Applicants contend that the principle aim of the DA is to achieve access to their elderly and mobility impaired relatives, and for themselves as they age, is in the public interest. Further the proposed development seeks to meet the objective of providing adequate access to the Applicants’ home in circumstances where the topography of the site presents particular design challenges. Reference is made to the Northern Beaches Local Housing Strategy (at pages 18 and 31) and it is submitted that ‘approval of the DA would promote those policies without occasioning adverse impact’: [ASUB, paras 7, 8, 9].
Thirdly the Applicants contend that contrary to what the Council says, the Court does have adequate information before it to consider appropriate measures proposed to avoid, minimise, or mitigate the impacts of the development and to enable assessment of the subject DA against the provisions of cll 7.2 and 7.7 of the PLEP. They submit there will be ongoing rigorous geotechnical monitoring and oversight to ensure that no such adverse impacts are occasioned during the construction phase of the proposed development: [ASUB para 57].
Council did not provide a geotechnical, construction and risk assessment report in reply. I note the Registrar refused such an application as geotech was captured under the ‘insufficient information’ contention. This does not mean that there is no contradictor to the Applicants’ geotechnical risk assessment and construction expert evidence such that I have to accept the Applicants’ expert evidence without questioning it. As the consent authority I am required to turn my own mind to this issue, consider the applicants evidence and take into account the mandatory relevant considerations under cll 7.2 and cl 7.7(3) PLEP and consider all geotechnical risks. This was made clear by the Council’s barrister Ms Novak in oral submissions, see [T:29: line 12 – 23].
In fact development consent must not be granted unless I am satisfied of the matters detailed in cl 7.7(4)(a) and at least one of the parameters in cl 7.7(4)(b) PLEP. The clause is jurisdictional. This is discussed further below.
It is not disputed that the proposed development engages the application of cl 7.2 of the PLEP – the proposed earthworks do not fall into the exemptions to the requirement for development consent for earthworks in cl 7.2(2)(a) or cl 7.2(2)(b); and cl 7.7 – pursuant to cl 7.7(2) the clause applies because approximately half of the Site and all of the proposed excavation area of the Site is identified as “Geotechnical Hazard H1” on the Geotechnical Hazard Map reproduced at [22].
I have read the Applicants geotechnical and construction evidence in the following documents.
Douglas Partners (DP) Geotechnical Engineers documents as follows:
(a) DP Geotechnical Investigation Report, June 2023 – Ex A tab 15 (DP Report) (b) Letter of 13 November 2023 – Council Issues Raised in Response to DA2023/1213 - Specific Conditions Clause 7.2 Earthworks and Clause B8.1 Construction and Demolition Ex A tab 20 (c) Letter of 25 September 2024 – Impact of Proposed Works on Adjacent Property – Ex C, tab 15 (d) Letter of 9 October 2024 – Impact of Proposed Works on Adjacent Property at 84 Bungan Head Road – Ex D [setback to No 84 boundary at the new bin store position was revised as explained by this letter and shown on attached Plan – Lower Ground Floor Plan – Garage – AD-DA100 Rev 3]
(a) M&G Consulting Engineers P/L letter of 5 July 2023 – Re 86 Bungan Head Road – Proposed Tunnel & Lift Additions – Construction Methodology – Annexure A tab 13. [quote] (b) RFE Earthmoving Pty Ltd letter of 6 June 2023 – Excavation Input Request for DA – Ex A tab 14 (c) CMS Surveyors P/L – 86 Bungan Head Rd – Boundary Identification and Detail & Level Survey – 25/11/22 (date of survey) – Ex A tab 9.
My observations from the above evidence are as follows.
The survey demonstrates that firstly the adjoining dwelling houses at Nos 84 and 88 Bungan Head Road are very close to the Site. Secondly, the Site is very heavily built out on all sides including to the west at the rear with a swimming pool and metal roof cabana. Thirdly, there is very little room on the southern side of the Site for access for construction works and persons: Ex A tab 9.
The proposed sequence and construction methodology set out in the M&G letter will proceed through 9 excavation steps and 2 construction steps to construct the internal walls, floors and roof of the garage extension and horizontal tunnel, including drainage and services (step 10); and construct the internal walls, lift and roof of the vertical lift shaft including drainage and services (Step 11). M&G consulting conclude this construction methodology demonstrates that a safe method of construction is achievable and at all times the proposed excavation works will not result in significant adverse impact on the structural integrity of adjoining properties.: Ex A, tab 13. These words appear fine but no explanation is given by M&G on how this conclusion was reached.
The MRF Earthmoving letter provides the following information: Ex A tab 14.
Excavators to be used – 4.0 Tonne Kubota with attachments Diamond Rock Saw, Grinder, and Hydraulic Hammer; Bobcat Model T595 parked on Bungan Head Road for removal of excavated material;
Tunnel will be excavated southerly in sections depending on rock stability, structural and Geotechnical Engineers instructions;
No access for any type of machine is possible from Bungan Head Road to the back yard. Hand excavation for the lift shaft is the only method possible excavating from the top down;
Hand excavation - Rock will be stitch drilled and separated using a hydraulic splitter (site inspection required). A gantry will be constructed across the top of the lift shaft. Rock will be stockpiled and removed from Site via the lift shaft when the lift shaft excavation has been completed;
Mechanical ventilation in the tunnel for incoming fresh air and for exiting dirty air and machine fumes and dust will be provided through the garage door. First Aid kit on site.
I have reproduced the above details to demonstrate that the proposed development is not at all ‘modest’ as submitted by the Applicants’ Counsel but rather is a sophisticated, complex and no doubt costly endeavour. For example, hand excavation by its very nature is time consuming and costly. In addition, some of the comments demonstrate the difficulties the builders will have on this Site and despite it not being clear that the persons who prepared the MRF letter had inspected the Site. Bungan Head Road has very limited parking availability yet that is specified in the letter as a parking area for the construction machinery and vehicles. This comment may seem trivial, but it is a significant issue and demonstrative of the unsuitability of the Site for the proposed development.
The Douglas Partners Investigation report (DP Report) is detailed and technical and it is not necessary to reproduce in full. It was also carried out more than two years ago and would need to be updated. Follow up letters have addressed discrete issues raised by Council and provide more current information as discussed below. The issue to address is whether the requirements in cll 7.2 and 7.7 of the PLEP have been met by the Applicants’ evidence which is principally the DP report and follow up letters.
The DP Report includes a Slope Risk Analysis using a statistical analysis for Life Risk Assessment for Existing and Proposed Developments.
The DP report has a table titled ‘Property slope Instability Risk Assessment for Proposed Site Developments’. It hypothesises a scenario of “collapse of the new car bay, tunnel or lift shaft excavation which may cause collapse or damage to existing structures on the Site”. This scenario is ranked as rare “provided that an excavation and support methodology is developed/designed and followed meticulously by the contractor, with all temporary/permanent support installed in accordance with good construction practise.”: Ex A, tab 15, page 21 of 25. This scenario is repeated in the table for the land next to the site and the same wording is used to rank the likelihood of a catastrophic collapse event. Use of the word “meticulously” sets a very high operational standard and that word in my opinion would not ordinarily be associated with earth moving contractors.
Preliminary testing has been done for groundwater and the DP Report states:
“No free groundwater was observed during hand augering to depths of up to 1.0m. The use of water for rotary drilling and coring prevented observation of groundwater within the rock.” [DP Report, para 4.2.2, page 4 of 25].
“Groundwater flow is expected to follow the topography and flow along the top of the rock, finding its way down into the rock below and through the three-dimensional network of discontinuities (joints and bedding planes) in the rock mass. Based on the topography seepage is expected to flow down towards the eastern boundary of the site. The siltstone layer between RL 68 m and RL 65 m would likely act as an impermeable layer, where surface water / seepage will accumulate in the sandstone above.
During construction and in the long-term, it is anticipated that seepage into the excavation should be readily controlled by perimeter drains, connected to a "sump-and-pump" system typically installed for drained excavations. Approval from WaterNSW, however, may be required prior to designing and constructing a drained shaft and tunnel. A drained shaft and tunnel, if approved by DPIE Water, will require permanent subfloor drainage to direct seepage to the stormwater drainage system for which Council approval will be required. The disposal requirements of water collected on-site will be dependent on the chemical consumption of the water.
Previous experience in Sydney is that seepage will likely contain relatively high levels of soluble iron that will form a precipitate in the form of a gelatinous 'sludge' when exposed to oxygen (refer photo 3 and 4). This 'sludge' has the potential to block-up subsoil (gravel) drains and 'seize-up' pumps. Therefore, detailing of subfloor drains, sumps and pumps should incorporate provision for regular maintenance such as flushing and `rodding' of drains and / or "baffle" pits.
Notwithstanding the above, it should be noted that groundwater levels are transient and may fluctuate over time, particularly, following periods of heavy rainfall.”
Whilst the DP Report draws attention to potential issues with groundwater both in construction and in the long-term, it does not provide nor purport to provide enough information to advise on final solutions. It also does not deal with stormwater and wastewater.
It is clear that more work needs to be done at the investigative stage to properly design drainage systems that meet the standard required by cl 7.7(4)(a) which does not just refer to stormwater but includes “waste water and drainage across the land so as not to affect the rate, volume and quality of water leaving the land”. The purpose of the inquiry that I must undertake under cl 7.7(4)(a) is very specific.
The subsequent correspondence and more recent letters from DP consider the issue addressed in their titles - see paragraphs [58](1), (b)-(d) above.
The 25 September 2024 DP letter is concerned with impacts on the neighbouring property to the south at 84 Bungan Head Road. A follow up letter of 9 October only confirmed acceptance of the varied set back shown in Rev 3. The letter repeats some of the wording in the DP Investigation Report and the 23 November 2023 DP letter which were in response to a letter from Council dated 30 October 2023. The following are extracts from the 25 September 2024 letter:
“Based on DP’s experience the likely impact (on No 84) is expected to be negligible. A rigorous geotechnical assessment, however, will be carried out as part of the design process. This assessment may include numerical modelling, depending on the proven ground conditions beneath the neighbours building. The outcome of the assessment will be used to predict ground movement at the founding level of the neighbour's building for the structural engineer to include in a structural assessment of the impact that the predicted ground movement will have on the building.
The predicted ground movement will also be used to determine the requirements and the trigger levels for the construction stage monitoring, as required to manage the geotechnical risk associated with constructing the tunnel and shaft near the neighbour's building.
In conclusion, construction of the tunnel and shaft without adversely impacting the neighbour's building, is certainly feasible. A rigorous geotechnical assessment of ground movement and a robust ground support design developed during the design process together with an agreed excavation methodology and construction instrumentation combined with close geotechnical supervision will provide appropriate risk management and should ensure the proposed works are carefully considered and controlled throughout the design and construction process.
The matters set out above are appropriately addressed post development consent”.
“The results provided in the report are indicative of the sub-surface conditions on the site only at the specific sampling and / or testing locations, and then only to the depths investigated and at the time the work was carried out. Sub-surface conditions can change abruptly due to variable geological processes and also as a result of human influences. Such changes may occur after DP's field testing has been completed.
DP's advice is based upon the conditions encountered during this investigation. The accuracy of the advice provided by DP in this report may be affected by undetected variations in ground conditions across the site between and beyond the sampling and / or testing locations. The advice may also be limited by budget constraints imposed by others or by site accessibility.
The assessment of atypical safety hazards arising from this advice is restricted to the (geotechnical / environmental / groundwater) components set out in this report and based on known project conditions and stated design advice and assumptions. While some recommendations for safe controls may be provided, detailed 'safety in design' assessment is outside the current scope of this report and requires additional project data and assessment.”
“No structural loads were available at the time of preparing this report.”
7.2 Earthworks
(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
(2) Development consent is required for earthworks unless—
(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
(3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,
(i) the proximity to and potential for adverse impacts on any heritage item, archaeological site or heritage conservation area.
(4) In this clause—environmentally sensitive area has the same meaning as environmentally sensitive area for exempt or complying development in clause 3.3.
7.7 Geotechnical hazards
(1) The objectives of this clause are to ensure that development on land susceptible to geotechnical hazards—
(a) matches the underlying geotechnical conditions of the land, and
(b) is restricted on unsuitable land, and
(c) does not endanger life or property.
(2) This clause applies to land identified as “Geotechnical Hazard H1” and “Geotechnical Hazard H2” on the Geotechnical Hazard Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider the following matters to decide whether or not the development takes into account all geotechnical risks—
(a) site layout, including access,
(b) the development’s design and construction methods,
(c) the amount of cut and fill that will be required for the development,
(d) waste water management, stormwater and drainage across the land,
(e) the geotechnical constraints of the site,
(f) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted to development on land to which this clause applies unless—
(a) the consent authority is satisfied that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and
(b) the consent authority is satisfied that—
(i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or
(ii) if that risk or impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that risk or impact, or
(iii) if that risk or impact cannot be minimised—the development will be managed to mitigate that risk or impact.
As stated above, cll 7.2 and 7.7 of the PLEP are both engaged by the proposed development. These provisions provide a road map for the consent authority to assess the related aspects of earthworks and geotechnical hazard in a development application.
The objectives of cl 7.2 are to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, or features of the surrounding land.
The objectives of cl 7.7 of are to ensure that development on land susceptible to geotechnical hazards matches the underlying geotechnical conditions of the land, and is restricted on unsuitable land, and does not endanger life or property.
Clause 7.2(3) PLEP requires the Court to consider a list of matters set out in subparagraphs (a) to (i) in deciding whether to grant development consent for earthworks.
On a perusal of the description of the proposed development, the Site and location it is clear that subparagraphs (a), (b), (d), (g), and (h) are applicable to the subject proposed development. Subparagraph (g) is engaged for consideration because of the proximity of the Site to an “environmentally sensitive area”, namely “the coastal waters of the State”: see cl 7.2(4) which picks up cl 3.3(2)(a) PLEP, and the PLEP dictionary refers to s 58 Interpretation Act 1987 for the definition of ‘Coastal waters of the State’.
Clause 7.7(3) requires the Court to consider the list of matters that follow in deciding whether or not the proposed development takes into account all geotechnical risk. Of particular relevance are the following subparagraphs of cl 7.7(3) and my comments on their consideration:
subparagraph (a) – site layout including access – site layout is not dealt with in any great detail as the proposed development can only really proceed in one location due to the restricted Site. As to access, there are significant access constraints in the construction process due to the restricted Site and the fact the design is wholly underground;
subparagraph (b) – the developments design and construction methods – there is very little information on geotechnical risk in these documents;
subparagraph (c) – cut and fill - a large amount of cut (632 cubic metres) is required for the development given it’s underground design;
subparagraph (d) - waste water management, stormwater and drainage across the land – the whole excavation construction process will be underground which adds a layer of complexity that is not explained for dealing with all sources of water in the construction phase in the tunnel and lift shaft. This subparagraph also includes post construction control of water sources including sewerage which are not detailed in the evidence [see further discussion below];
subparagraph (e) – the geotechnical constraints of the Site – approximately 50% of the total land and almost all of the area of the construction site is identified as ‘Geotechnical Hazard H1’. This is the highest risk category in the Northern Beaches Council - Geotechnical Risk Management Policy for Pittwater 2009 that travels with the Pittwater Geotechnical Hazard Map. The DP Report did not refer to the ‘Geotechnical Hazard H1’ classification;
subparagraph (f) – the language in the Applicants’ evidence is general and does not contain “appropriate measures proposed to avoid, minimise or mitigate the impacts of the development” [see further discussion below].
I acknowledge that the DP Report does discuss this subject matter. But cl 7.7 is not just about discussing geotechnical risk but rather whether the development takes into account al****l geotechnical risk (cl 7.7(3)) and is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the surrounding land (cl 7.7(4)(b)(i). Subclauses (b)(ii) or (b)(iii) are alternative states of satisfaction to subclause (b)(i).
In addressing the first leg of cl 7.7(4)(a), because of the lack of information I am not satisfied that ‘the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land’. The evidence and my findings to reach this conclusion are set out above at paragraphs [68] and [69].
I have no issue with the veracity of the DP Report but it has not been tested in the Court and given the PLEP control for Geotechnical hazards has as an objective that the development ‘does not endanger life or property’, it is appropriate to be cautious in making a decision on this issue. It would not be appropriate to just accept the Applicants submission that as the DP Report was prepared by a highly experienced firm whom the Court can trust it should be accepted.
In any event I am not satisfied that the Applicants’ evidence is in a sufficient state of completeness and detail for the Court to be able to assess the requirements of cl 7.7(3) and cl 7.7(4) and decide whether or not the development takes into account all geotechnical risks and therefore whether development consent should be granted.
With reference to the quotes from the DP Report and ancillary documents reproduced above at [72] and [73], there is frequent use of the words “rigorous Geotech assessment will be carried out as part of the design process… to predict ground movement” and instructions will be “meticulously followed by the contractor”, etc. The discussion on groundwater talks in terms of approvals that “may be required from WaterNSW, DPIE Water and Council and that the requirements of water collected on-site will be dependent on the chemical consumption of the water”. It concludes with the rider that “stormwater levels are transient and may fluctuate over time particularly following periods of heavy rain”. I note the comment that no structural loads were available at the time of preparing this report, DP Report page 9 of 25.
The 25 September 2024 DP letter concludes with words, with reference to geotechnical risk and management: “The matters set out above are appropriately addressed post development consent” reproduced above at [72]. This statement ignores the application of cl 7.7 PLEP which requires the geotechnical risk issues are established before consent is granted for the reasons discussed above. The DP Report does not consider clause 7.7 of the PLEP at all.
In considering a DA, conditions of consent can solve the issues that remain a concern for a Council. However, there are situations where that is not suitable or advisable. The purpose of cl 7.7(4) is to particularly guard against that occurring when there is a geotechnical hazard. Deferred commencement conditions are a statutory mechanism of dealing with a development that is not advisable to proceed until further things are done or provided making the proposed development suitable to proceed. In this matter Council in the first version of draft conditions of consent filed 4 October 2024 included two Deferred Commencement Conditions pursuant to s 4.16(3) of the EPA Act concerning likely impacts – Geotechnical Hazards Report; and likely impacts – Geotechnical Hazards – Water: [Ex 3, pages 2 - 4].
The Ex 3 deferred commencement conditions in terms mirror the mandatory requirements under cl 7.7(4) PLEP. This reinforces my own opinion that there is not enough information in the DA documents to address geotechnical risk and consent should not be granted. Council did not put on engineering expert evidence but these deferred conditions in Ex 3 are evidence that reflects and supports Council’s position on geotechnical engineering matters.
If I be wrong and the requirements of cl 7.7(4)(a) and (b)(i), (ii) or (iii) were met by the evidence and the power to grant development consent is engaged, I retain the discretion to not grant consent if there are valid evidentiary reasons to do so.
In that scenario I am not persuaded to grant consent because, taking into account s 4.15(1)(c) of the EPA Act, the Site in my opinion is wholly unsuitable for the proposed development for the reasons summarised below which are based on the evidence before the Court and set out in this judgment:
Close to neighbours residences at Nos 84 & 88,
Narrow southern setback from built form at No 86 – constrained excavation side,
Small block of land 15 m wide, 51 m deep, 761 sq m site area,
Approx. 80% built form site coverage,
Steep land,
Mapped geotechnical risk H1, approx. half of land, and in area of excavation,
Close proximity to ‘bluff/cliff instability’ land on the Coastal Risk Planning Map and ‘environmentally sensitive area’ – directly opposite Bungan Head Road which has a steep drop to the Pacific ocean,
No access for earth moving equipment to rear of Site – hand excavation and limited access at front of garage on Site,
Limited area for stockpiling excavation waste at rear for lift shaft,
Significant volume of rock/soil to be removed – 623 m3 – scale of development,
Wastewater, stormwater and groundwater conditions unknown,
Narrow winding public road to south and north with limited on street parking,
Newport locality statement, desired future character, zoned C4 environmental living – these relevant planning controls dictate low impact, low density, landscaping priority, minimising site disturbance etc.
The siting of the development is a consideration in cl 7.7(4)(b)(i) and (ii) and it is a significant factor in the assessment of the proposed development.
I note that one of the objectives of cl 7.7 of the PLEP is to restrict development on unsuitable land: cl 7.7(1)(b). The proposed excavation is described by Council in Contention 1 as excessive which in my opinion has a basis in fact considering the plans and scope of construction works for the proposed development. Unsuitable land is not defined and would carry its ordinary meaning in the context of this clause. The Applicants’ proposal is clearly inconsistent with this objective of cl 7.7 because it does not restrict development on the Site but rather intensifies it markedly.
The purpose of cl 7.7 is expressed in clear words to avoid danger to life and property, avoid geotechnical risk and minimise and control impacts to the development and surrounding land otherwise consent must not be granted to the development.
The proposed development is a substantial tunnel and lift shaft where once there was rock and soil and foundations supporting the 4 storey house. I agree with Council’s position (ASOFAC) that a significant permanent change to the land is proposed, and the excavation will permanently alter the landform of the Site.
A development consent runs with the land and therefore the Court should be cautious to ensure that any approved development is acceptable for occupants generally and not just designed for the unique circumstances of the present occupants (or their visitors). Prospective purchasers would have to be informed of the presence of the tunnel and lift shaft, and they may not want them. The tunnel and internal pumps, pipes and lighting and the lift will have to be regularly maintained to a high standard as advised in the DP Report.
I accept the opinion of Council’s town planner in reply to the Applicants ‘there will be nothing to be seen and hence no impact when it is finished’. In the joint report Mr McFadden stated as follows [Ex 5, para 30]:
“The Applicants ‘out-of-sight, out of mind’ attitude towards the sub-terranean works is not supported and represents an ill-founded approach to planning and an unhealthy disrespect for the environment and natural topography particularly given the excessive scale of the development
The mended proposal does not properly integrate with the landform and landscape in which to minimise site disturbance, so the desired future character within “Newport Locality Statement’ in section 4.10 of PDCP remains a valid consideration.”
It is fallacious to argue that nothing has happened in the landform because as argued by the Applicants, ‘landform’ is only the surface of the land [ASUB para 34] and therefore there is no impact.
In my opinion the evidence demonstrates that the proposed development is inconsistent with the desired character of the Newport Locality of PDCP for the reasons set out in the ASOFAC, page 5, as follows:
“The development is not integrated with the landform and landscape of the subject site, rather the extent and scope of works augments the landform. It has the inverse effect in that the landform integrates with the development, rather than the development integrating with the landform”; and
“The proposed excavation is considered to significantly alter the landform of the subject site and will affect the future redevelopment of the land and is inconsistent with clause 7.2(3)(b)” and
“Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause D10.13 Landscaped Area - Environmentally Sensitive Land of the Pittwater 21 Development Control Plan.
Particulars:
The proposal does not provide a compliant area of landscaped open space within the proposed lot. The reduction in landscaped area caused by the proposed development contributes to the failure of the development to satisfy the desired future character of the Newport Locality insofar that it reduces available area for the establishment, enhancement and maintenance of native tree cover, assisting amongst other things the ability of the subject site to blend in with and be subservient to the natural environment.”
Given I have decided to dismiss the appeal, the determination of these contentions does not arise, and the issues raised are a matter for the Applicants as owners of the Site and the Council to resolve.
I note the Council proposed an alternative location for a lift closer to the front of the dwelling that would reduce the size of the tunnel. This was rejected by the Applicants because it would cause greater impact including to the neighbour at No 84: [ASUB, paras 24,25,26 and 60]. Therefore I have not considered this alternative location. The development application put before the Court to determine in a Class 1 appeal is an Applicants decision.
Council’s contention 4 that the proposed development is not in the public interest is supported in my opinion from my finding that the excavation of the Site to construct the tunnel and lift is excessive with the consequent disturbance to the landform and significant disruption in the building process. I also find the proposed development is totally inconsistent with the C4 zone objectives reproduced above.
The notion that when the construction is finished only the lift at the back is visible and therefore there is no real impact is rejected as I have said above.
I agree with the Council’s contention that pursuant to s 4.15(1)(e) of the EPA Act, the proposed development is not in the public interest for the reason that it will create an undesirable precedent such that it would undermine the desired future character of the area and be contrary to the expectations of the community.
The Applicants raise public interest on a different basis and contend that the public interest is furthered by the proposed development for the following reasons and should therefore be supported:
To provide additional parking needed because on-street parking is only available on one side of Bungan Head Road which disadvantages the Applicants; and
The Applicants desire to enable access for persons who have mobility issues, namely elderly parents, a mobility ompared brother and the owners themselves if and when needed.
Whilst these aims are admirable and understandable, they are personal circumstances and fulfill private interests, not public interests. The dwelling house at No 86 is a private dwelling, it is not for the use of the public. The Applicants personal circumstances are not a relevant consideration in the Court’s determination of a Class 1 development appeal.
There are a number of decisions of this Court that confirm this position, see The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158. The decisions are referred to and discussed in the Council’s submissions and I quote the following:
“It is not unusual for the Court to disregard the personal circumstances of an Applicant and impetus of a proposed development see for example:
(i) additional undercover parking required because occupant has muscular dystrophy: Davies v Penrith City Council [2013] NSWLEC 1141 per Moore SC at [115], [120]
(ii) additional parking required because of a young family: Ryder v Randwick City Council [2024] NSWLEC 1590 per Porter C at [32]
In this case the Council says that the Court would give no weight or very little weight to the personal circumstances of the Applicants. Those personal circumstances should not change the balance of an unacceptable DA somehow becoming acceptable because of that fact.
Access for seniors and persons with a disability
Reference to seniors and persons with a disability is made throughout the Applicants Reply SOFC and submissions. Care should be taken with such terminology which has a specific connotation in the discipline of environment and planning. This DA is not for housing for seniors and people with a disability development under Part 5 of State Environmental Planning Policy (Housing) 2021.
The Applicants’ assertions of fundamental planning policies for providing and improving accessibility to the existing dwelling inclusion for seniors, persons with a disability and emergency personnel is unfounded: Reply SOFC, pp 4, 6. In respect of the Applicants’ submissions at [6]-[7] the Council rejects that the Disability Inclusion Act 2014 or the Northern Beaches Local Housing Strategy support such an argument.”
I have no reason to doubt Mr Howards submission that Douglas Partners are a reputable, highly experienced engineering firm, and their reports and investigations should be treated as such. However, the reputation of an expert witness is not relevant evidence in a Class 1 development appeal. Experts’ CVs are mandatory to be attached to an expert’s report but that is to establish their field of expertise and experience, not reputation.
As I have said above, the satisfaction of measures for geotechnical hazards and risk in a proposed development such as this is a matter for the Court, standing in the shoes of the consent authority, to determine specifically under clauses 7.2 and 7.7 of the PLEP and generally under s 4.15 of the EPA Act and the instruments and documents that apply as listed by the Council in the ASOFAC and reproduced above.
Accordingly based on the evidence before me and the facts and circumstances of the appeal I find I am not satisfied of the matters in cl 7.7(4)(a) and 7.7(4)(b)(i) of the PLEP and therefore development consent must not be granted to the proposed development.
Based on the evidence cited above, I also find that the proposed development is poorly sited which is a critical issue in in cl 7.7(4)(b)(i) and (ii) and creates an element of doubt on the suitability of the proposed development and the decisions that have been made to proceed with the preliminary stages of the proposed development. Given the DP Report prepared for the Applicants was not tested in Court and considering the objectives of the Geotechnical Hazard clause 7.7, I have taken a cautious approach to the consideration of this issue.
Even if I were satisfied of the proposed engineering and construction plans in place and there is no jurisdictional impediment to the grant of consent, my principal concern is that the Site is wholly unsuitable for the proposed development which is a mandatory relevant consideration pursuant to s 4.15(1)(c) of the EPA Act. In my opinion no amount of geotechnical reports and risk management assessments will cure the unsuitability of the Site and its surrounds dictated by physical, geographical and environmental constraints. The Site and its improvements, the immediate surrounding environment and physical features on Bungan Head and the Pacific Ocean below are what they are, and cannot be moved either way up or down the street.
I appreciate that the blunt submission from Council to just ‘move’ may not have been received well by the Applicants, but this is the only feasible solution to achieving a fully accessible dwelling house for the Applicants and their extended family.
Commissioner O’Neill made a very relevant observation on the limitations of No 86 compared to the neighbouring properties as regards vehicular access to the house: Brown v Pittwater Council [2012] NSWLEC 1301, at paras [26, 27] which is worth quoting as follows:
“[26] I agree with the experts that the topography of the site is an important consideration in assessing the merits of this application. The owners of dwellings on the steeply sloping high side of this portion of Bungan Head Road have mostly opted for a winding driveway that utilises the width of the site to provide vehicular access to a dwelling located further back on the site and high above the road. This option requires significant earthworks to provide a suitable gradient for the driveway. Two examples of the winding driveway option are at neighbouring properties, 84 and 90 Bungan Head Road.
[27] The alterations and additions currently under construction include the demolition of the former driveway (which benefited from an easement over the adjoining allotment, 84 Bungan Head Road, presumably because the width of the site was insufficient to provide vehicular access up the steep slope to the dwelling) and the construction of a garage at street level, with a stair access up to the dwelling.”
The Court orders that:
The appeal is dismissed;
Development application No DA2023/1213 for alterations and additions to a dwelling house at 86 Bungan Head Road, Newport NSW 2106, being Lot 76 DP 10423, is refused.
The exhibits are returned except for Ex A.
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Palfreyman
Northern Beaches Council [2025] NSWLEC 1256
(2019) 243 LGERA 338