On 6 April 2016 I delivered judgment (Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137) in the appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 (the Act) by Mr and Mrs Screnci against an Order issued by the respondent Council on 15 November 2013 under s 121B of the Act which directed the applicants to undertake specified works at their property at 57 Minimbah Road Northbridge (the Order appeal), giving my conclusions as to the modifications required to that Order. That decision also addressed the applicants' appeal pursuant to s 97 of the Act against refusal of a development application for a secondary dwelling (proceedings 10803 of 2014), and I concluded that development consent should be refused and the appeal dismissed. In that judgment I expressed the view that as a consequence of the conclusions reached in the Order appeal and in relation to the appeal against refusal of development consent for the secondary dwelling, there appeared to be little utility in proceeding further with the applications in the three remaining related matters, being the appeal pursuant to s 97 of the Act against refusal of a development application for landscaping and other works including stairs and retaining walls (10579 of 2014); the appeal pursuant to s 149F of the Act against refusal of a building certificate for the landscaping and other works already undertaken on the site (10527 of 2014); and the appeal pursuant to s 149F of the Act against refusal of a building certificate for alterations and additions to the dwelling for the purposes of the secondary dwelling (10804 of 2014), and that it would be appropriate to dismiss those appeals.
As noted at paragraph [3] of that judgment, the background of the applications and the appeals was the subject of an earlier judgment, Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256. These reasons should be read together with the two earlier judgments.
As foreshadowed in Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137, the parties were given an opportunity to indicate whether there was an alternative course preferable to the dismissal of the appeals in 10579 of 2014, 10527 of 2014, and 10804 of 2014. The parties agreed that that was the appropriate outcome.
In the Order appeal, pursuant to directions made on 6 April 2016 and 12 April 2016, on 22 April 2016 the parties provided to the Court the Council's proposed modified Order, being a Schedule of Works and associated plans, and the applicants' response to the proposed modified Order. The parties had been unable to reach agreement about the form of the Order.
The applicants took issue with a number of aspects of the Council's proposed Schedule of Works and annexed plans. On 27 April 2016 I communicated my response to the applicants' objections, requesting advice as to whether the parties wished to have the matter relisted to discuss matters further. In response to that communication, the applicants advised that they could address the matters of concern in relation to demolition and consequent construction works and the resultant impact on site suitability in a written submission; the Council agreed to deal with the matter by written submissions. The applicants provided written submissions on 3 May 2016; and the Council responded with written submissions on 6 May 2016. Following receipt of those submissions, on 13 May 2016 I advised the parties that the terms of the modified Order could be finalised without requiring a further listing, subject to clarifying the parties' respective positions on the timber walkway proposed between the western and eastern terraces. On 16 May 2016 the parties advised their positions on that issue.
On consideration of the parties' submissions, and on further consideration of the expert evidence given during the hearing, I have determined to amend the Schedule of Works as detailed below, and to make no changes to the Council's plans, drawings 001C, 002C and 003C, which are annexures to the amended Schedule of Works. My reasons are as follows.
[2]
The proposed Schedule of Works
The Council's proposed Schedule of Works provides three stages: Stage 1 - preparatory work including demolition works, including a requirement for preparation of a work plan to be submitted to Council for approval before demolition works are undertaken, and inspection by Council once the demolition works have been completed; Stage 2 - construction works, including preparation of detailed construction plans and specifications for new retaining walls, boundary wall and stairs and support structures, and inspection on completion; and Stage 3 - landscaping works. The plans provided by the Council are the Demolition Plan (Drawing 003 C), the Hardworks Plan (Drawing 002C), and the Landscape Plan (Drawing 001C).
The applicants commented on the Council's proposed Schedule of Works and plans:
1. The proposed Schedule specifies a period of 2 months from the date of the Order for preparation of the work plan, 5 months for completion of demolition works, 6 months for preparation of construction plans and specifications, 11 months for completion of the construction works, and 12 months for carrying out of the landscaping works. The applicants opposed the imposition of time limitations for each stage, as being not in accordance with the judgment, and note in relation to the preparation of a work plan that that is dependent on a feasibility study of whether demolition is done by hand, by use of a crane, or by barge; approval by RMS is likely to be necessary; and access to 55 Minimbah Road will need to be facilitated, possibly requiring proceedings under the Access to Neighbouring Land Act 2000; and
2. The applicants disputed whether Drawing 003C reflects Drawing CON 1 C (ex 26) or the findings at paragraphs [68], [46] and [35] in the judgment of 6 April 2016 in relation to the exposure of the rock shelf, stating that the rock shelf should be exposed to the extent that it is below the FBL; no timber deck between the terraces is shown; and the eastern terrace is shown as being cut back further than indicated in CON 1 C.
[3]
Timing and staging of the works
As communicated to the parties following receipt of the competing versions of the amended Schedule of Works, the original Order issued by the Council on 15 November 2013 provided an overall period of 120 days for completion of all the works, and did not specify time frames for completion of each stage of the works. Given the length of time now proposed for completion of the works, being 12 months, I expressed the view that it is appropriate to state a time frame for each of Stages 1, 2 and 3 to ensure that each is completed in time to allow compliance with the completion of all the works, and the time frames specified by the Council are appropriate. While any need for RMS approval may delay matters, the work plan could accommodate that by identifying alternatives, and it could accommodate any requirement for obtaining access to 55 Minimbah Road; and paragraph 1 should specify 2 months for preparation of the work plan as proposed by the Council.
In their written submissions provided on 3 May 2016 the applicants stated that the Council's proposed Order had failed to consider that demolition of the retaining structures on site would remove retaining structures to stop migration of soil, rubble and stormwater and that even with silt curtains there would be an increased likelihood of spill onto neighbouring properties and the waterway, and that the 5 months envisaged for completion of the demolition works would extend over the wettest time of the year. Complete demolition prior to construction would make it difficult for workers to traverse the site safely, and for storage of sandstone to be reused; would compromise the ability to retain existing indigenous plants; and create a visual impact to neighbours and from the waterway of a denuded site.
The applicants propose demolition and construction in sections, to allow sandstone to be reused, to reduce the risk of stormwater erosion, and to increase the ability to retain indigenous plants; and submit that a staged approach would maintain the structural integrity of the site. To facilitate their preferred action, the applicants propose amendments of the terms of paragraphs 4, 7 and 8 of the Council's proposed Schedule of Works. The applicants propose that demolition works commence within 5 months of the date of the Order (paragraph 4); that the applicants contact Council once demolition of each wall has been completed to enable inspection before construction pursuant to Stage 2 (paragraph 7); and that the reference to detailed construction plans and specifications being prepared after completion of the Stage 1 works be deleted (paragraph 8).
In its response to those submissions the Council does not agree that demolition of the structures on the site will result in slope instability, noting that the site is underlain by bedrock at shallow depth. The Council comments that site safety is likely to be more of an issue for workers where a staged reconstruction is adopted with potentially unstable stockpiles of material being placed behind retaining walls that are already potentially unstable. Complete demolition would require most of the material designated for reuse to be temporarily removed from the site, while on the other hand the applicants would have to demonstrate how material can be safely stored for reuse on the site under a staged reconstruction without increasing the risk of instability to the current development. The Council agrees that if walls and fill are to be removed to enable reconstruction of the walls, it is likely the existing indigenous plants would require removal. In response to the submission as to visual impact the Council notes that the works would provide an outcome on completion of greater consistency with the objectives of the planning controls as well as addressing the long term structural stability concerns of the current unauthorised development.
The applicants had contended that more practical options may be available and should be assessed and incorporated in the work plan. The Council's response was that if a staged reconstruction is proposed, detailed plans including demolition, storage of material and reconstruction need to be submitted. If the applicants have issues with the Council's proposed time frame they should submit an alternative works program for consideration that still complies with the Court decision. The Council submits that complete demolition and removal of all retaining walls is feasible without destabilising the site, and this would restore the slope to the condition it was in before the existing retaining walls were constructed. Demolition and removal of the walls should commence from the top of the slope, working downwards. For a staged approach, remedial work should start at the top and work downwards; and stability of stockpiles of fill on the steep site would be an issue that needs to be addressed if the staged reconstruction option is adopted.
The Council submitted that if the Court is inclined to accept the applicants' proposal for staged reconstruction, it did not object to the proposed amendment to paragraph 4 and 8, provided additional amendments were made to paragraph 4 to require demolition work to commence within 3 months rather than 5 months; and to paragraphs 10 and 15 to require completion of the construction works within 11 months and completion of the landscaping works within 12 months. The Council opposed the applicants' amendment to paragraph 7 to refer to demolition of each wall, noting that there are other elements to be demolished on site including terrace slabs, stairs and paved areas, and the Council proposed inclusion of a reference to the other elements detailed in paragraph 1 of the Schedule of Works.
[4]
Findings
The expert evidence earlier in the proceedings addressed the extent of works required to comply with the original Order, with the applicants' planner Mr Dickson outlining in oral evidence on 10 October 2014 the range of equipment that might be required to demolish the retaining walls and remove material from the site. Mr Dickson was of the opinion that a works program was needed, to include such matters as whether material was to be removed by road or by water. The expert engineering evidence did not traverse the question of whether the work could appropriately be carried out as the Council envisages, or would need to be staged; there was no suggestion in that evidence that factors such as site stability would require one approach or the other.
The Council's approach has the advantage of certainty, with completion and inspection of each stage in turn; and as submitted by the Council, there is no reason why the applicants could not retain a geotechnical engineer to supervise the works to ensure that they are safely undertaken. However, I accept that given the scale of the demolition and construction works required on the site, there may be advantages in framing the modified Order in terms that would permit construction work to commence while demolition work is being undertaken, as proposed by the applicants. Either approach has implications for stockpiling and storage of material to be reused, and plantings. Both approaches could, on the Council's submissions, properly proceed starting at the top of the site and working downwards. The Council's submissions do not identify any reason not to work on a staged basis. The work plan required in Stage 1 is to include a description of the proposed demolition methods, methods for handling and disposing of demolished materials, the proposed sequence of carrying out the demolition works, details of protective measures including erosion and sediment control and shoring, and location on the site for stockpiles. As indicated earlier, the work plan can be framed so as to identify alternatives for removal of material from the site, and any requirement for obtaining access to the adjoining property. Given the particular matters specified in paragraph 2 of the proposed Schedule of Works for inclusion in the work plan, it can also identify the most appropriate way to proceed with demolition and construction on the site. It is preferable that the Schedule of Works incorporates a degree of flexibility, with details of the demolition and construction process to be specified in the work plan (paragraph 1) and detailed construction plans and specifications (paragraph 8), both of which are to be approved by the Council.
The amendments proposed by the applicants to paragraphs 4 and 8 enable flexibility which can be incorporated in the work plan. The applicants' proposed amendment to paragraph 8, which is agreed by the Council, would not preclude preparation of detailed construction plans and specifications at an earlier stage than following completion of the Stage 1 demolition works. I agree with the Council that if paragraph 4 is amended as proposed by the applicants, the proposed time frame of 5 months for commencement of the demolition work, as opposed to its completion, should be reduced. The amendment proposed to paragraph 7 by the applicants replacing the reference to "commencement of" Stage 2, with "construction pursuant to" Stage 2, is agreed by Council. I agree with the Council that it is preferable that if a staged approach is adopted, that each of the elements identified in paragraph 1 and addressed in the work plan is covered by the notification obligation in paragraph 7 so as to ensure that the demolition works can be inspected as and when they are completed. In order to retain the advantages of the staged approach as asserted by the applicants, while ensuring completion of all the works within the overall time frame specified in the modified Order, it is appropriate to specify completion of the Stage 2 construction works within 11 months and completion of the Stage 3 landscaping works within 12 months of the date of the Order, as proposed by the Council.
[5]
The rock shelf and terraces
I am satisfied that Drawing No 002C is consistent with the findings in paragraph [46] of the judgment of 6 April 2016. The precise final configuration of the rock shelf will depend on any support works required, as discussed in paragraph [47] of that judgment, and as provided in paragraph 6 of the proposed Schedule of Works. While it is not possible to scale Drawings 001C, 002C or 003C in the form as sent by the parties, there does not appear to be any material difference between those drawings and Drawing CON 1 C in exhibit 26 in terms of the extent of the eastern terrace to be cut back.
[6]
The timber walkway
In its submissions of 6 May 2016 the Council stated that the plans in exhibit 26, which included the walkway as proposed by the applicants, were prepared before the Court's decision on the secondary dwelling was known, and were amended to reflect the Court's decisions which included dismissal of the secondary dwelling appeal so with that went any need for the walkway. The additional walkway connection between the terraces is not required, and if future approval is sought for use and fit-out of the spa undercroft space then provision of a connecting walkway if required would be assessed at that time.
The applicants' position as communicated on 16 May 2016 is that the timber walkway between the western and eastern terraces should be retained as nominated in the drawings before the Court, that is the Council's plans prepared by Powe Partnership (which are exhibit 26), the applicants' plans Ex FF, and specifically nominated again in Ex GG.
In its submissions of 16 May 2016 the Council submits that the timber walkway should be removed from the plans. The walkway arises only as a consequence of the secondary dwelling which if it had been approved would have required an alternative to access the western terrace with the removal of the central stairs as part of the foreshore works. The walkway is no longer required as access is available through the spa undercroft. Should there be a new application to use the space in the spa undercroft the need for a walkway would be assessed as part of that application and plans would be required to detail how it is to be built to minimise impacts and mass of the built form. Further, there were unresolved issues concerning the width of the walkway at the time of the hearing, with the Council interpreting the walkway as a suspended walkway with a width of about 800mm but the applicants' plans during the hearing indicated a wide terrace; there were also issues as to how it would be built if anything more than a lightweight suspended walkway.
[7]
Findings
The timber walkway connecting the western and eastern terraces was shown on drawings CON 1 C and SK1 C of exhibit 26, and drawing 08 of exhibit FF. There was no specific finding as to the timber walkway in the reasons of 6 April 2016, and my initial response to the competing versions of the proposed modified Order was that Drawing 002C, the Hardworks Plan proposed as Annexure B to the draft modified Order, should be consistent with exhibit 26. However, as pointed out by the Council in its submissions, the representation of the walkway on ex 26 and ex FF is not consistent with the representations on subsequent plans tendered by the applicants during the hearing, exhibits GG and KK.
The Council's planning expert, Ms de Carvalho, considered the timber walkway in her Further Addendum Town Planning Statement (ex 30) and in oral evidence on 2 March 2016. At paragraph 9 of exhibit 30 Ms de Carvalho notes that the amended plan for the secondary dwelling (now ex GG) proposes a wider "timber deck connecting terraces" in the order of 1.5m in width, whereas all previous considerations by Council and the landscape plans indicated a suspended walkway supported off the spa undercroft or drum walls of approximately 900mm in width. In her oral evidence Ms de Carvalho noted that as shown in drawing 08 of exhibit FF the walkway was approximately 850mm; while on exhibit GG, it is just over 1.5m from the building. While Ms de Carvalho considered that a timber walkway, or a lightweight steel structure, could be appropriate, her concern was with the bulk, and how it would be supported off the drum walls; and the structure would need a balustrade which would add to the built form on the site and would be perceived from the foreshore.
I agree with the Council that with the refusal of development consent for the proposed secondary dwelling, there appears to be no need for the proposed timber walkway for access. I also agree that any future development application for use of the spa undercroft space, such as a studio or rumpus room as discussed in the planning evidence, could incorporate a walkway if needed. Having regard to all the plans on which the applicants rely, which include exhibits FF and GG, and the uncontradicted evidence of Ms de Carvalho concerning the discrepancies as to the representation of the walkway in those plans; and in the absence of detail as to its dimensions and how it would be built and supported, and given the consequences for non-compliance, I am not satisfied that it would be appropriate to incorporate the walkway in the present modified Order.
[8]
Appeal 10972 of 2013
1. The appeal is upheld.
2. Order No 2595 under s 121B of the Environmental Planning and Assessment Act 1979 dated 15 November 2013 issued by Willoughby City Council in relation to 57 Minimbah Road Northbridge is modified by the deletion of the Schedule of Works and substitution of the Schedule of Works in Annexure A.
3. The period for compliance is 12 months from the date of these Orders.
4. The exhibits are returned except for exhibits 3, 18, 19, 26, 32, 33, A, D, G, H, L, O, EE, FF, HH, and MM.
[9]
Appeal No. 10527 of 2014
1. The appeal is dismissed.
2. Application No 2014/26 pursuant to s 149B of the Environmental Planning and Assessment Act 1979 for a building certificate for ancillary works in the area between the existing dwelling and the northern site boundary of 57 Minimbah Road Northbridge is refused.
3. The exhibits are returned except for exhibits 4, B, and J.
[10]
Appeal No. 10579 of 2014
1. The appeal is dismissed.
2. Development Application DA2014/197 for modifications to existing landscaping including a new timber stair, pergola, planting of native trees shrubs and ground covers at 57 Minimbah Road Northbridge is refused.
3. The exhibits are returned except for exhibits 5, 21, 31, C, K, AA, and DD.
[11]
Appeal No. 10803 of 2014
1. The appeal is dismissed.
2. Development Application DA2014/252 for alterations and additions for the purposes of a secondary dwelling and ancillary outdoor terraces at 57 Minimbah Road Northbridge is refused.
3. The exhibits are returned except for exhibits 7, 20, E, M, GG, and KK.
[12]
Appeal No. 10804 of 2014
1. The appeal is dismissed.
2. Application No 2014/38 pursuant to s 149B of the Environmental Planning and Assessment Act 1979 for a building certificate for alterations and additions to existing dwelling and terraces at 57 Minimbah Road Northbridge is refused.
3. The exhibits are returned except for exhibits F and N.
Linda Pearson
Commissioner of the Court
10972 of 2013 Pearson (C) (187 KB, pdf)
10972 of 2013 Annexure A Demolition Plan 003 C1 (132 KB, pdf)
10972 of 2013 Annexure B Hardworks Plan 002 C1 (341 KB, pdf)
10972 of 2013 Annexure C Landscape Plan 001 C1 (558 KB, pdf)
[13]
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: 19 May 2016