RNB 49 Drumalbyn Pty Ltd v Woollahra Municipal Council

The site and its context

1. The site is located fronting Drumalbyn Road. From the street frontage to the rear boundary the site rises approximately seven metres (Exhibit C).
2. The site, outlined in red below, adjoins an access driveway which services three properties - 47A, 47B, and 47C Drumalbyn Road. The arrangement of the adjoining properties is shown in the following aerial: Source: https://maps.six.nsw.gov.au/
3. The site is currently occupied by a three storey inter-war Spanish Mission residential flat building named Palomar. The existing building contains six, two-bedroom units and two detached triple garages which are located on the street alignment (Exhibit 2).
4. The topography of the locality is undulating with the land rising from the site to the east and north east.
5. Relevant to the issues that remain in the proceedings the Statement of Environmental Effects (Exhibit C) describes the existing adjoining development as follows: Development to the North To the north is No. 45 Drumalbyn Road, a two storey dwelling house elevated above a high stone retaining wall and garages. The dwelling is set back from the street and screened behind substantial hedging and vegetation. The garage is built into a retaining wall located at the street boundary. Further to the north are two and three storey dwellings elevated above street level. … Development to the South To the south is No. 51 Drumalbyn Road, a three storey rendered brick dwelling house with a pitched roof. The dwelling is located above a two car garage which is constructed to the street to the street boundary. Further to the south is No. 59 Drumalbyn Road, which comprises a rendered brick residential flat building. The building is two storeys above a five car space garage with landscaping and plantings within the front and rear setbacks. … Development to the West and North West Development to the west is No. 47B Drumalbyn Road which comprises a two storey rendered brick dwelling house with flat roof. The dwelling is set behind the subject site and is separated from the subject site by private open space and a swimming pool, which steps up towards the dwelling house. … Development to the north west at No. 47A Drumalbyn Road comprises a contemporary three storey dwelling house with a flat roof. The dwellings are accessed from a common driveway which is located on the northern side of the subject site. (Exhibit C)

Existing Use

1. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (LEP 2014).
2. The objectives of the zone are a relevant consideration in the assessment of the proposal (cl.2.3(2) LEP 2014). They are: - to provide for the housing needs of the community within a low density residential environment. - to enable other land uses that provide facilities and services to meet the day to day needs of residents. - to provide for development that is compatible with the character and amenity of the surrounding neighbourhood. - to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
3. The proposed use of the site as a residential flat building is prohibited in the zone.
4. The site is benefitted by consent, granted by Woollahra Council in September 2015 (the Existing Consent). The planning assessment report for that development application states that Council accepts the site has the benefit of existing use rights as follows: The existing residential flat building on the site was lawfully erected in 1928 prior to the prohibition of residential flat buildings in the locality upon the gazettal of the Woollahra Planning Scheme on 12 December 1972. The existing residential flat building on the site is currently prohibited under the Woollahra LEP 1995 Residential 2(a) zoning and will remain prohibited under the Woollahra LEP 2014 R2 Low Density Residential zoning which commenced on 23 May 2015. … A perusal of Council's records and documentation submitted with the subject development application has adequately established that the subject site does benefit from existing use rights as a residential flat building and that those existing use rights pertaining to the site have not lapsed. (Exhibit M)
5. Section 4.65 of the Act provides the relevant definition of existing use rights: In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or sections 100A and 101, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
6. Clause 41 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) states: 41 Certain development allowed (cf clause 39 of EP&A Regulation 1994) (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or …
7. Clause 42 of the Regulation stipulates the following in relation to existing use rights applications: 42 Development consent required for enlargement, expansion and intensification of existing uses (cf clause 40 of EP&A Regulation 1994) (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.
8. The subject application seeks approval for development for the purposes of a residential flat building. As outlined in the planning assessment report for the Existing Consent (refer paragraph [17]), Council accepts that the site benefits from existing use rights. Relevant to cl. 42 of the Regulation, Council accepts those rights apply to the whole of the subject site: Meagher JA in Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26 stated (at 27) the rule to be applied as follows: 'that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose'. Having regard to the above case law, it is considered that, as the residential flat building is the sole use of the subject land (other than the existing 2 ancillary triple garage structures that are used solely by the occupants of the residential flat buildings) the existing use rights apply to the whole site. (Exhibit M)
9. The parties agree that the proposal is therefore consistent with the provisions of cl. 42 of the Regulation.
10. Mr Galasso, citing Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 315 at [61], argues that the consent granted by the Council in 2015 is an unequivocal acknowledgement of a relevant consent authority at the relevant date, consistent with this judgement. This is accepted by the Council.
11. Further Mr Galasso submits that the grant of the Existing Consent (refer paragraph [16]) and the lodgement of the current development application are evidence of the applicants intention to continue to utilise the site for the existing use. Council accepts that the site has existing use rights and that they have not been 'abandoned' (s. 4.65 (b)(ii) of the Act).
12. As a result the parties agree that the existing use rights have not been 'abandoned' and subject proposal is capable of approval subject to merit assessment.

Planning Framework

1. Previous case law in relation to exiting use rights have held that provisions of planning instruments that derogate (i.e. detract) from the provisions of cl. 41(1) of the Regulation do not apply to the assessment of applications on sites benefited by existing use rights (Ashfield Municipal Council v Armstrong [2002] 122 LGRA 105).
2. The applicants Statement of Environmental Effects (Exhibit C) utilises the planning principles established in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 at [17] to assess the application. Those principals are as follows: Four questions usually arise in the assessment of existing use rights developments, namely: · How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. · What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. · What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. · What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.
3. The application of the above planning principal to the assessment of the application is accepted by the Council.
4. Therefore whilst the Woollahra Development Controls Plan 2015 (DCP 2015) contains numerical controls for setback and excavation volumes they do not apply directly in this instance due to the potential derogation of existing use rights pertaining to the site.
5. The DCP 2015 controls for excavation are: B3.4 Excavation Objectives: O1 To allow buildings to be designed and sited to relate to the topography. O2 To minimise excavation. O3 To ensure the cumulative impacts of excavation do not adversely impact land stabilisation, ground water flows and vegetation. O4 To minimise structural risks to adjoining structures. O5 To minimise noise, vibration, dust and other amenity impacts to adjoining and adjacent properties. Controls: … C2 For a residential flat building, multi dwelling housing, or attached dwelling development (including attached and detached garaging) - the maximum volume of excavation permitted is no greater than the volume shown in Figure 14B. … C4 A variation to the volume shown in Figures 14A and 14B will be considered, however the maximum volume of excavation permitted will only be the amount needed to accommodate: a) car parking to comply with the maximum rates in Part E1 of this DCP and any reasonable access thereto, if the maximum car parking rates are required by the Council; and b) storage at a rate of 20m³ (cubic metres) per dwelling if for a dwelling house, dual occupancy, semi-detached dwelling or attached housing; or c) storage at a rate of 8m³ (cubic metres) per dwelling if for a residential flat building or multi dwelling housing development. … C6 Basement walls are no closer to the boundary than permitted by the setback controls (refer to Figure 15). C7 Notwithstanding C6, basement walls for residential flat buildings, multi dwellings housing and attached dwellings are no closer to the boundary than 1.5m (see Figure 16). … C9 Excavation below 2m and/or within 1.5m of the boundary may be accompanied by a geotechnical and hydrogeological report and a structural report demonstrating that the works will not have any adverse effect on neighbouring structures. Note: Council may identify other circumstances where these reports are required. All reports must be prepared in accordance with Council's guidelines. As a condition of a development consent, Council may also require the preparation and submission of a dilapidation report for properties neighbouring the development.

Public submissions

1. The development application was notified by the Council. Submissions were received from the adjoining owners within Drumalbyn Road. Representatives of the residents also addressed the Court at the commencement of the hearing and expressed the following concerns in relation to the development: 1. the excessive excavation sought by the application poses a significant risk to the common driveway to 47A, 47B, and 47C Drumalbyn Road; 2. the excavation and vibration associated with the works poses a significant risk to the adjoining properties: 45, 47A, 47B, and 47C and 51 Drumalbyn Road; 3. the risk of any impacts arising from the works (and the depth of excavation proposed) should not be borne by the adjoining property owners, but should be covered by an insurance policy funded by the applicant. 4. collectively the owners seek the imposition of a condition such as the following on any consent: … The applicant should be required to purchase an insurance policy to cover any damage up to full loss and reinstatement of the properties at 47A, 47B, and 51 and 45 Drumalbyn Road, the driveway servicing 47A, 47B, 47C and retaining walls. The policy should cover any loss of access to these properties in the event damage is so severe access is lost/significantly hampered the residents may need equivalent alternative accommodation during repairs/restitution. I suggest a cover amount in the order of 20,000,000 dollars (or an appropriately agreed amount between affected owners and the applicant) to ensure adequate cover for the benefit of any one or all owners affected. … (Exhibit 1, Tab 6) 1. the potential for disruption of services within the driveway servicing 47A, 47B, 47C Drumalbyn Road; 2. inadequate geotechnical report; 3. inadequate boundary setbacks, excessive building footprint and scale of development; 4. detrimental impacts on the hedge (Leighton Green) adjacent to the rear boundary and the Port Jackson Fig adjacent the south-eastern side boundary; 5. overshadowing, loss of privacy and adverse visual impacts for 51 Drumalbyn Road.

Expert Evidence

1. The parties and the Court were assisted by the evidence of town planners Mr. George Karavanas (for the Applicant), Mr David Booth (for the Respondent) and arboricultural experts Ms. Melanie Howden (for the Applicant) and Mr Andrew Simpson (for the Respondent). The experts participated in a joint conference and prepared joint reports (Exhibits 3 and 4).
2. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. With the benefit of the site inspection and there reports, I am satisfied that the experts have appropriately considered the issues raised by the submissions of the public, the contentions and the appropriate planning controls, and I accept their conclusions.

Have any potential impacts arising from the excavation and retention proposed by the application been adequately addressed?

1. No leave was sought, and the no directions were made, for the provision of expert geotechnical evidence at the hearing. The parties rely on the tendered reports of the applicant, the Council's review, and a report prepared by a geotechnical expert engaged by the resident at 47B Drumalbyn Road.

Applicant's Evidence

1. As part of the documentation supporting the development application the applicant has lodged: a "Geotechnical and Hydrogeologiocal Investigation report" prepared by JK Geotechnics (JK Report); and a "Neighbouring Driveway Stability Assessment Report" prepared Safe Australia Consulting Engineers ["Safe Oz"] (Driveway Report).
2. The relevant recommendations of the JK Report can be summarised as follows: 1. Geotechnical Issues:

• "The main geotechnical issues for this site and the proposed development is the variable depth of the inferred sandstone and the need to support the excavations with piled retaining walls prior to the start of excavation" (Exhibit D).
• to reduce the risk of differential settlement the entire structure should be supported on footings founded on sandstone.
• sandstone is inferred to be present in two bore hole locations, but not encountered in the remaining at the test limit of 5m depth.
• "As all structures will need to be founded within the sandstone and the basement excavation will extend into the sandstone, the depth and quality of the sandstone throughout the site will be critical to the design and construction of the proposed development. Therefore we recommend that further geotechnical investigations be carried out to confirm the depth and quality of the sandstone" (Exhibit D).
• "The comments and recommendations provided herein may be used for planning and preliminary design, but should be reviewed and amplified following completion of the additional boreholes using a drilling rig" (Exhibit D). 1. Excavation:
• recommendation that dilapidation surveys are completed on the adjoining properties to the south-east, south-west and if possible the north-west.
• Due to the proximity of adjoining properties vibration monitoring be undertaken and equipment or methods chosen to maintain vibrations within acceptable limits (provided as an attachment to the report).
• Prior to the start of excavation, full depth retention systems will need to be installed. 1. Hydrogeological Considerations
• ground water was not encountered in the bore holes so significant ground water seepage into the excavations is not expected.
• engineer designed drainage systems will be required to be constructed behind all retaining walls and below the basement slab. 1. Retention
• insufficient space is available to utilise temporary batters and the excavations will 'need to be supported by full depth retention systems installed prior to the start of excavation" (Exhibit D).
• 'Retention systems may comprise contiguous or secant pile retaining walls' (Exhibit D).
• The piles should be founded within sandstone below the base of the proposed excavation.
• 'For the deeper excavations, where ground movements are to be kept low, or where piles cannot be socketed into sandstone, additional lateral restraint in the form of internal props or external anchors will be required' (Exhibit D). (Exhibit D).

1. The conclusion of the Driveway Report is as follows: "We are of the firm opinion that by adopting the proposed retention system, the neighbouring driveway can sustain fit for purpose, throughout and after the construction activity of the proposed development at 49 Drumalbyn Rd Bellevue Hill" (Exhibit E)
2. The Driveway report details the proposed retaining system as a "concrete shoring wall" to be constructed adjacent the existing retaining wall of the driveway. By reference to Drawing S-100 and S102 revision B in Exhibit E the wall is noted as being constructed of 450 diameter contiguous piers with a capping beam at the height of the footings of the existing retaining wall.
3. Mr Galasso submits that the request of the adjoining residents for the imposition of a condition requiring an insurance policy (refer paragraph [31(4)]) is inappropriate on the following grounds: 1. The condition is unnecessary as there is no evidence before the Court that demonstrates a specific risk to the adjoining properties arising from the development. Consistent with Telstra Corporation Limited v Hornsby Shire Council. [2006] NSWLEC 133 such a threat must be sustained by scientific evidence. 2. That the condition could not be imposed as it does not operate to resolve an impact that arises from the works, therefore falling outside s 4.17 (1)(a) of the Act. 3. That the condition is fails the 'Newbury test' of being: 1. for a planning purpose; 2. fairly and reasonably relating to the development; and 3. not being so unreasonable that no authority would have imposed it. 1. (Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 132 LGERA 225)
4. Further Mr Galasso submits that the imposition of the deferred commencement condition in the Mostyn Report (refer paragraph [43]) is impractical as it would require demolition of the triple garage structures fronting Drumalbyn Road to provide access for the relevant equipment. Mr Galasso submits that the bore hole logs detailed in the JK Report are sufficient for the determination of the application.
5. Finally Mr Galasso argues that the evidence of Mr Booth (discussed at [60]) that the requirement for certification in conditions 5A, 5B and 5C be extended to cover any damage to the adjoining residential properties is not supported by any of the geotechnical evidence. It is Mr Galasso's submission that the imposition of such a condition would need to be responsive to an identified risk arising from the works and he argues that there is no evidence to support the existence of such a risk.

Resident evidence

1. The owner of 47B Drumalbyn Road sought advice from Mr Garry Mostyn of Pells Sullivan Meynink on the following aspects of the proposed development: 1. Whether the JK Report "adequately address the geotechnical and /or hydrogeological issues that the proposed development is likely to cause insofar as those issues (if any) relate to the driveway on the north -west of the site" (Exhibit 1) 2. any draft conditions which, if adopted, would address the issues identified in (1).
2. The report of Mr Garry Mostyn (the Mostyn report) was tendered as part of Exhibit 1.
3. Relevantly the Mostyn report makes the following statements of opinion: 31. I consider that any reading of the JK Report indicates that JK recommends further geotechnical investigation is required prior to design (see paragraph 23(a) above). Notwithstanding this, the last paragraph (page 15) of the Safe OZ Report states: 'To develop proposed retention system, the soil investigation reports in hand suffice.' 32. The JK Report states ground anchors or props will be required for this excavation (see paragraph 23(j) above), I agree with this recommendation as I consider that a socketed cantilever (ie supported only by the socket/embedment at the toe) wall is not feasible on this site. While, given sufficient resources, such a wall could be constructed; its construction would almost certainly lead to significant damage of the driveway and then deflection in service would lead to further damage. 33. Notwithstanding JK Geotechnics recommendation, Safe Oz it its advice refers only to sockets and makes no reference in its construction methodology (its Section 2.2 or elsewhere) to anchors or props. I note that given the JK Report advice that lateral earth pressures of 8H, a retained height of 10m and a passive resistance of 200kPa below 0.5m (given no further site investigation) and adopting a factor of safety against overturning of 1.5, a socket into rock below the basement level of 16.5m length is required. Safe Oz has not presented any such assessment. This is further emphasises the preliminary nature of the advice in the JK Geotechnics report and the necessity for a deferred commencement condition. (Exhibit 1)
4. The Mostyn Report concludes by recommending the imposition of additional conditions.
5. Importantly the Moyston Report concludes that a deferred commencement condition is recommended. These are: 1. JK Geotechnics is to complete a further geotechnical investigation including at least two boreholes at third points along, and within 5 m of, the northern boundary. These boreholes are to extend to RL 30m AHD and be cored where in rock. 2. JK Geothechnics is to revise the JK report and all recommendations are to be clear and mandatory. The recommendations are to be sufficient that, if followed, no damage will occur to the driveway. A clear statement to this effect is to be provided in the report. 3. Structural design of the retention system, including excavation, is to be completed. The design is to include a comprehensive inspection, testing and monitoring plan, including vibration monitoring and vibration and deformation limits. Absent appropriate consent from the neighbour or a court order, the design is to be such that it can be implemented without anchors or rock bolts.
6. The Moyston Report also recommends additional certification as operational conditions. Those conditions are: 4. The Structural Engineer is to provide a certificate strictly in the following terms, with no added conditions: "I/we have designed the excavation and support for the basement at 49 Drumalbyn Road. The "For Construction" design is described in the design documents being: [List full set of documents] I/we am/are satisfied that the works if implemented in accordance with the design will not cause damage to the driveway leading to 47B Drumalbyn Road. The design includes sufficient inspections, tests and monitoring that I/we will be aware if the works are not implemented in accordance with it." 5. JK Geotechnics are to review the design and issue a certificate strictly in the following terms with no added conditions: "I/we certify that, as far as I/we are able to ascertain, the design complies strictly with the recommendation in our report/s and that the works if implemented in accord with the design will not cause damage to the driveway leading to 47B Drumalbyn Road." 6. Under the building contract, the Structural Engineer is to have an irrevocable delegated authority from the owner to stop work or direct additional work consistent with the consent. The PCA should sight such an authority in the executed building contract. (Exhibit 1)
7. Council's draft conditions do not adopt the proposed deferred commencement condition at paragraph [46], but rather impose the requirement for additional geotechnical work as a series of operational conditions.
8. Council's draft conditions have also omitted the following condition: 6. Under the building contract, the Structural Engineer is to have an irrevocable delegated authority from the owner to stop work or direct additional work consistent with the consent. The PCA should sight such an authority in the executed building contract. (Exhibit 1)

Respondent's evidence

1. The Respondent raises no contentions in the proceedings in regards to the management of potential impacts arising from the excavation, other than as a public interest issue.
2. Mr Patterson submits the Respondent is satisfied that the concerns of the residents are adequately addressed by the amended application and the proposed conditions of consent.
3. The Council's draft conditions include requirements that: 1. Further geotechnical investigation consistent with the JK Report (refer paragraph [36]) is undertaken as part of an updated Geotechnical Report. The conditions require that the Engineer ensure "there will be no ground settlement or movement, during excavation or after construction, sufficient to cause an adverse impact on adjoining property or public infrastructure" (Exhibit 5) 2. Preparation of a Geotechnical and Hydrogeological Monitoring Program, to detect settlement of structures or the deflection and movement of temporary and permanent retaining structures, must be completed prior to the issue of any construction certificate. The condition requires that the monitoring: '- Will detect any settlement associated with temporary and permanent works and structures; - Will detect deflection or movement of temporary and permanent retaining structures (foundation walls, shoring bracing or the like); - Will detect vibration in accordance with AS 2187.2-1993 Appendix J including acceptable velocity of vibration (peak particle velocity); - Will detect groundwater changes calibrated against natural groundwater variations; - Details the location and type of monitoring systems to be utilised; - Details the pre-set acceptable limits for peak particle velocity and ground water fluctuations; - Details recommended hold points to allow for the inspection and certification of geotechnical and hydro-geological measures by the professional engineer; and; - Details a contingency plan'. (Exhibit 5) 1. Prior to construction commencing dilapidation Reports for existing buildings at 45, 47A, 47B, 47C, 51 Drumalbyn Road and the driveway to 47A, 47B & 47C Drumalbyn Road are prepared. The conditions requires the principal contractor of the proposed works to provide a copy of the dilapidation report to the owners of the adjoining building(s) not less than fourteen (14) days prior to the commencement of any work, including any demolition. 2. That the principal contractor (builder) ensures that a professional engineer "determines the possibility of any adjoining building founded on loose foundation materials being affected by piling, piers or excavation. The professional engineer (geotechnical consultant) must assess the requirements for underpinning any adjoining or adjacent buildings founded on such soil on a case by case basis and the principal contractor must comply with any reasonable direction of the professional engineer" (Exhibit 5). 3. During works vibration monitoring is required to be installed and maintained, under the supervision of an engineer with expertise and experience in geotechnical engineering, between any potential source of vibration and any building identified as being potentially at risk of movement or damage from settlement and/or vibration during the excavation and during the removal of any excavated material from the land being developed. 4. That where there is any movement in foundations such that damaged is occasioned to any adjoining building or such that there is any removal of support to supported land the professional engineer, principal contractor and any sub-contractor responsible for such work must immediately cease all work, inform the owner of that supported land and take immediate action under the direction of the professional engineer to prevent any further damage and restore support to the supported land. 5. 'A person must not to do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building). For the purposes of this condition, supporting land includes the natural surface of the site, the subsoil of the site, any water beneath the site, and any part of the site that has been reclaimed' (Exhibit 5).
4. Further the conditions state that no approval is given to the use of use of ground anchors under Council land.
5. Following the submission of a geotechnical report prepared on behalf of one of the adjoining owners (refer paragraph [34]) Council sought a "peer review" of the application and its proposed conditions of consent.
6. By reference to Exhibit 6, that review was undertaken by Mr Tony Colenbrander of the company GHD Pty Ltd. His correspondence with Council states: I have read Garry Mostyn's report and am in general agreement with his findings and recommendations. I consider that Council should impose the conditions he recommends in his report. (Exhibit 6)
7. Mr Colenbrander's correspondence goes on to describe his preferred approach to amending Council's then draft conditions to accommodate the above recommendation.
8. Notably Mr Colenbrander does not adopt the approach of Mr Mostyn that the further geotechnical investigation should be undertaken as a deferred commencement condition (refer paragraph [45]).
9. Mr Patterson submits that Council is satisfied that, with the addition of the following conditions, that the technical and public interest issues raised by the excavation and retention sought by the proposal are adequately addressed. The additional conditions are: C.5 Professional Engineering Details The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must include detailed professional engineering plans and/or specifications for all structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work complying with this consent, approved plans, the statement of environmental effects and supporting documentation. Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate. Note: This does not affect the right of the developer to seek staged Construction Certificates. C.5A Structural Engineer Certification The Structural Engineer is to provide a certificate strictly in the following terms, with no added conditions: "I/we have designed the excavation and support for the basement at 49 Drumalbyn Road. The "For Construction" design is described in the design documents being: [List full set of documents in A3 of these conditions] I/we am/are satisfied that the works if implemented in accordance with the design will not cause damage to the driveway leading to 47B Drumalbyn Road. The design includes sufficient inspections, tests and monitoring that I/we will be aware if the works are not implemented in accordance with it." C.5B Geotechnical Engineer Certification JK Geotechnics are to review the design and issue a certificate strictly in the following terms with no added conditions: "I/we certify that, as far as I/we are able to ascertain, the design complies strictly with the recommendation in our report/s and that the works if implemented in accord with the design will not cause damage to the driveway leading to 47B Drumalbyn Road." C.5C Builder's Certification The builder is to issue a certificate strictly in the following terms with no added conditions: "I have reviewed the "For Construction" design documents being: [List full set of documents in A3 of these conditions] I certify that it is feasible to undertake the work as detailed in the above referenced documents and that I will comply with the testing, inspection and monitoring requirements." (Exhibit 5)

Planning Expert Evidence

1. It was the oral evidence of Mr Booth that the following the amendments to the proposal, detailed in the amended plans and the imposition of the proposed conditions that the application warrants approval by the Court.
2. In response to the public submission and the oral evidence of the objectors, Mr Booth argues that the proposed certification conditions (Condition C. 5A through C) should be expanded beyond the common drive. Mr Booth argues the condition should also require confirmation that the design will not cause damage to the adjoining properties (namely: 45, 47A, 47B, 47C, 51 Drumalbyn Road).
3. Mr Booth accepted that the series of certification conditions at C5 (refer paragraph [58]) were not generated by Council's internal engineering experts but were inserted following receipt of the Mostyn Report.
4. Following questioning by Mr Galasso, Mr Booth accepted that the certification conditions were unusual and were produced seeking to respond to concerns expressed by the adjoining neighbours.

Findings

1. Having undertaken a detailed view, carefully considering the evidence, the submission of the objectors, the joint expert reports and submissions, I am satisfied in my s4.15 evaluation that the proposed development warrants approval. I accept the approach of the applicant and the experts in applying the planning principles in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 to the merit assessment of the application.
2. Following the application of the Fodor Investments v Hornsby Shire Council principles to the amended application I am satisfied that:

• the bulk and scale of the proposal is compatible with the context and what is permissible on adjoining sites;
• the impacts of the development on adjoining sites are appropriate and the proposed conditions of consent (as amended by this judgement) incorporate appropriate additional mitigation;
• the internal amenity of the development is acceptable.

1. I note the submissions of the adjoining residents in relation to the potential for damage to their properties arising from the works. In assessing the application I have given consideration to their concerns as one of the matters for consideration under s4.15 of the Act and in determining the appropriate conditions to be imposed on the consent.
2. I accept the submission of Mr Galasso that the condition the residents seek to impose (refer paragraph [31(4)]) requiring an insurance policy to cover loss or damage to the common driveway in inappropriate. I adopt his reasoning as detailed at paragraph [39].
3. Following consideration of the evidence of the various geotechnical reports I am satisfied it is appropriate to require the agreed further geotechnical investigation as a deferred commencement condition, rather than as an operational condition. This will have the effect of holding the operation of the consent until this work is completed. I have formed this conclusion on the following basis: 1. I accept the conclusion of the Mostyn Report that, when read in its entirety, it is not clear from the JK Report what the final form of the retention system for the site will be. This is particularly clear from the statement within the JK report that clarifies that "The comments and recommendations provided herein may be used for planning and preliminary design, but should be reviewed and amplified following completion of the additional boreholes using a drilling rig" (Exhibit D). I accept that this uncertainty arises in part from their stated uncertainty as to the depth at which sandstone of bearing capacity will be encountered due to the limited access within the site for testing. 2. The site is adjoined by elevated residences, which at the south east are located about 1.5m from the common boundary. The existing landform of the site is such that at the rear (south east) the height of the ground floor of the residence at the rear is equivalent to the roof of the garages on Drumalbyn Road (Exhibit D). This landform and the depth of the excavation are site specific matters for consideration (s 4.15 (b) of the Act. 3. I am satisfied that the appropriate inspection, testing and monitoring plan for the construction and implementation of the retention system should be prepared concurrently with the final structural design for the excavation, retention and footing system.
4. I have no evidence as to the reasoning of Mr Colenbrander that the further geotechnical investigation is not required to be undertaken as a deferred commencement condition. In the absence of expert geotechnical evidence in the proceedings I am satisfied it is appropriate to take a cautionary approach to ensure that the final retention design is informed by site conditions found across the entirety of the site.
5. A deferred commencement consent under s 4.16(3) of the Act is a final consent when it is granted. It is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the development which may in turn give rise to impacts that require consideration under s4.15 of the Act: (Weal v Bathurst City Council [2000] NSWCA 88 at [93]).
6. I am satisfied that imposing such a condition does not operate to defer the likely impacts of the development (which are well addressed by the draft conditions of consent) and does not go to the question of whether consent should be granted. Equally I am satisfied on the evidence that the appropriate retention of the proposed excavation is possible but that it is prudent for the final design of such retention to be informed by further investigation of ground conditons. I accept the agreed position of the experts and the parties that the development application is worthy of approval.
7. I find that it is appropriate to impose the following condition as a deferred commencement condition. 1. The Applicant is to complete a further geotechnical investigation including at least two boreholes at third points along, and within 5 m of, the northern boundary. These boreholes are to extend to RL 30m AHD and be cored where in rock. 2. The Applicant is to revise the JK report so that all recommendations are clear and mandatory. The recommendations are to be sufficient that, if followed, no damage will occur to the adjoining driveway. A clear statement to this effect is to be provided in the report. 3. Structural design of the retention system, including excavation, is to be completed. The design is to include a comprehensive inspection, testing and monitoring plan, including vibration monitoring and vibration and deformation limits. Such design and structural plans are to form part of the final consent for the works. 4. Absent appropriate consent from the neighbour or a court order, the design is to be such that it can be implemented without anchors or rock bolts. If anchors or rock bolts are proposed, documentary evidence of consent is to be provided to the satisfaction of the PCA.
8. I have given consideration to the submission of Mr Galasso in regards to the constraints imposed by the existing building and garage to the undertaking of further geotechnical investigation. However on balance I find that the investigation is warranted and should be completed to the satisfaction of Council prior to the release of an operational consent. In response to the directions of the Court the parties may wish to propose a means of addressing the constraint imposed by the existing site improvements.
9. I am satisfied the bar to the additional geotechnical investigation required by the deferred commencement raised in submission by Mr Galasso is overcome by the approval of demolition under consent DA/53/2015/1. The work approved under that consent includes the 'demolition of two triple garages adjacent to the street frontage, the rear elevation and internal floors and walls of the existing building' (Exhibit M).
10. Finally I am satisfied with the imposition of the above deferred commencement consent it is unnecessary to extend the certification provisions contained within Condition 5 A, 5 B and 5 C (Exhibit 5). I find that I have no evidential basis for such an extension of the certification which did not form part of the recommendations of the JK Report, the Driveway Report, Council's internal engineering review, the Mostyn Report or Mr Colenbrander's review.

Contribution to Affordable Housing.

1. Under cl. 50 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH), the Court is required to consider the impact of the loss of the affordable rental housing before determining the application. The provision states: 50 Reduction of availability of affordable housing … (2) In determining a development application referred to in subclause (1), the consent authority is to take into account the guidelines and each of the following: (a) whether there is likely to be a reduction in affordable housing on the land to which the application relates, (b) whether there is available sufficient comparable accommodation to satisfy the demand for such accommodation, (c) whether the development is likely to cause adverse social and economic effects on the general community, (d) whether adequate arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation, (e) the extent to which the development contributes to any cumulative loss of affordable housing in the local government area, (f) the structural soundness of the building, the extent to which the building complies with any relevant fire safety requirements and the estimated cost of carrying out work necessary to ensure the structural soundness of the building and the compliance of the building with the fire safety requirements, (g) whether the imposition of a condition requiring the payment of a monetary contribution for the purposes of affordable housing would adequately mitigate the reduction of affordable housing resulting from the development, (h) in the case of a boarding house, the financial viability of the continued use of the boarding house. (3) For the purposes of subclause (2) (b), sufficient comparable accommodation is conclusively taken to be not available if the average vacancy rate in private rental accommodation for Sydney as published monthly by the Real Estate Institute of New South Wales is, for the 3 months immediately preceding the date of lodgement of the development application, less than 3 per cent. (4) For the purposes of subclause (2) (h), the continued use of a boarding house is financially viable if the rental yield of the boarding house determined under clause 51 (5) not less than 6 per cent.
2. Relevantly at cl. 47(c) a 'low rental residential building, is defined as: low-rental residential building means a building used as a residential flat building containing a low-rental dwelling or as a boarding house and includes a building: (a) that, at the time of lodgement of a development application to which this Part applies, is lawfully used as a residential flat building containing a low-rental dwelling or as a boarding house, irrespective of the purpose for which the building may have been erected, or (b) that was used as a residential flat building containing a low-rental dwelling or as a boarding house but that use has been changed unlawfully to another use, or (c) that is vacant, but the last significant use of which was as a residential flat building containing a low-rental dwelling or as a boarding house.
3. Clause 51 (2) of SEPPARH states: 51 Contributions for affordable housing … (2) For the purposes of section 7.32 (3) (b) of the Act, this Policy authorises a condition to be imposed under section 7.32 of the Act if: (a) the consent authority, when determining a development application referred to in clause 50 (1), is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, and (b) the condition is imposed in accordance with the scheme for dedications or contributions set out in subclauses (3) and (4).
4. The Council seeks to apply a condition of consent for a monetary contribution in accordance with cl. 51(2) of SEPPARH. The condition states: In accordance with Section 5 of State Environmental Planning Policy (Affordable Rental Housing) 2009, a monetary contribution of $384,600 is to be paid to Council to cover the loss of low rental affordable housing. In accordance with Section 94G(3)(b) of the Environmental Planning and Assessment Act 1979, the full contribution will be paid to the Chief Executive of Housing NSW, Department of Human Services. (Exhibit 5)
5. During the hearing I sought clarification from the parties as to the method of calculation of the contribution detailed in the proceeding condition. Mr Patterson confirmed that the condition had previously been applied to the Existing Consent and was 'carried forward' to the draft conditions. Given the expiration of time between the determination of the Existing Consent and the current proceedings I sought clarification as to whether the figures contained in the condition required recalculation or indexing.
6. Following the completion of the hearing the condition was amended (by consent) to incorporate indexing and is proposed to be inserted in the consent as follows: In accordance with Section 51 of State Environmental Planning Policy (Affordable Rental Housing) 2009, a monetary contribution of $384,600 is to be paid to Council to cover the loss of low rental affordable housing. In accordance with Section 94G(3)(b) of the Environmental Planning and Assessment Act 1979, the full contribution will be paid to the Chief Executive of Housing NSW, Department of Human Services. In order to ensure that the value of the monetary contribution is not eroded over time due to inflation, it shall be indexed quarterly. In this regard, the same formula and index specified under Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2011 shall be used in adjusting the monetary contribution.
7. The applicant accepts the Council's proposed condition of consent at paragraph [80].

Findings

1. Pursuant to cl. 51 of SEPPARH the consent authority can impose such a condition if: (a) the consent authority, when determining a development application referred to in clause 50 (1), is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, and (b) the condition is imposed in accordance with the scheme for dedications or contributions set out in subclauses (3) and (4).
2. Clause 51(2) of SEPPARH provides the power for the imposition of a monetary contribution to offset the impact of the loss of affordable housing within the Sydney region and on land within the local government area of Newcastle or Wollongong City.
3. However it is clear from the decision of Moore J in Hampstead Home Units Pty Limited v Woollahra Municipal Council [2016] NSWLEC 169 at [5-7] that the precursor to the power to impose the condition in cl 51(2) is to determine that Part 3 of SEPPARH applies to the development. This is because pursuant to cl. 49(1) the section applies only to those buildings that were 'low-rental residential buildings' as at 28 January 2000.
4. Part 3 cl. 49 of SEPARH states: 49 Buildings to which Part applies (1) This Part applies only to those buildings that were low-rental residential buildings as at 28 January 2000, and does not apply to any building that becomes a low-rental residential building after that date. (2) This Part does not apply to a building: (a) that has been approved for subdivision under the Strata Schemes (Freehold Development) Act 1973, or (b) to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies, or (c) owned by, or under the care, control and management of, a social housing provider.
5. The applicant's Statement of Environmental Effects does not provide any details as to the use of the building at the relevant date (Exhibit C).
6. The Planning Assessment report for the Existing Consent (refer paragraph [17]) makes the following statement: 'The existing building is not strata titled and therefore the provisions of this instrument (SEPPARH) apply in this case'. The report follows with an assessment of the relevant factors required to be considered by the consent authority at cl. 50(2) of SEPPARH.
7. The Planning Assessment report makes no statement as to the use of the building at the time of determination or whether the use of the building at 28 January 200 (cl. 49(1) of SEPPARH) had been established.
8. In accordance with the legislative regime, to impose the condition at paragraph [79] the Court needs to be satisfied firstly that the: 1. building on the subject site was a low-rental residential buildings as at 28 January 2000 (cl. 49(1) of SEPARH) 2. building on the subject site met the definition of low-rental residential building at the relevant date the by either having: 1. lawfully been used as a residential flat building containing a low-rental dwelling or as a boarding house, irrespective of the purpose for which the building may have been erected, or 2. been used as a residential flat building containing a low-rental dwelling or as a boarding house but that use has been changed unlawfully to another use, or 3. been vacant, but the last significant use of which was as a residential flat building containing a low-rental dwelling or as a boarding house. 1. the proposed development will, or is likely to, reduce the availability of affordable housing (cl. 51(2)(a) of SEPPARH; 2. Finally the contribution must be calculated in accordance with the methodology detailed in cl. 50(3) and (4) of SEPPARH.
9. There is no evidence before the Court on which I can form a view of the satisfaction of the above preconditions. The consequence of that is that the condition cannot be imposed under SEPP ARH.
10. The site does not fall within the scope of: State Environmental Planning Policy No 70 - Affordable Housing (Revised Schemes).
11. I note that the Court also has power to impose conditions under s4.17 of the Act. Under s4.17(1)(a) a condition may only be imposed in it relates to a matter for consideration listed in s 4.15 of the Act. On the evidence I am not satisfied that there is a provision of a relevant instrument (s 4.15(1)(a), evidence of an impact arising from the development (s4.15(1)(b)) or evidence to support the imposition of the condition in the public interest. I have no evidence that would provide the foundation for imposing a condition requiring the monetary contribution sought by Council (refer paragraph [78]).

Directions

1. The Court makes the following directions: 1. The respondent is to amend the Conditions of Consent (Exhibit 5) to reflect findings of this judgement. 2. The respondent is to file and serve settled conditions of consent by 9 July 2018. 3. The matter is listed for mention before me at 9am on 11 July 2018. If the directions (paragraph [93]) are complied with, I will make orders in chambers to dispose of the proceedings in accordance with this decision and vacate the mention.

Orders

1. In accordance with the terms of the directions in paragraph [93] of my judgment of 22 June 2018 the parties have provided me with agreed conditions of consent.
2. I am satisfied that the conditions of consent, which I have marked Annexure 'A', accord with my findings and should be imposed. Accordingly, I make orders in chambers as follows: 1. The listing on 11 July 2018 is vacated; 2. The appeal is upheld. 3. Development consent for demolition of existing structures, construction of a new residential flat building, strata subdivision, landscaping and site works at 49 Drumalbyn Road, Bellevue Hill is granted, subject to the conditions at Annexure 'A' to this judgment. 4. The exhibits are returned with the exception of Exhibit 2, and J ……………. D M Dickson Commissioner of the Court Annexure A (C)

Amendments 10 July 2018 - Addendum - final orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2018