SSTG Property Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2022-08-09

Judgment

This is a Class 1 appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Inner West Council (Council) of Development Application No. DA/2021/1170 (DA). The DA seeks consent for demolition of existing structures and construction of multi dwelling housing (four dwellings) with four basement car spaces, and site remediation, at 180 Darling Street, Balmain (site).

Outline of matters at hand

I note here that the proposal was subject to significant amendments prior to and during the course of the hearing. The intended final changes were clear at the end of the hearing although it took a further week to prepare the relevant documentation. I accept the advice of the parties that the final amendments, agreed to by Council pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, were uploaded to the NSW Planning Portal and filed with the Court on 16 August 2022. It is therefore these amended plans and other documents that are before the Court.

Site and setting

The site is legally described as Lot 1 in DP 919080. It has an area of 589.3m2. The site is located between Darling Street (northern boundary) and Gladstone Street (southern boundary). The site is quite rectangular in shape, with a frontage of 14.53m to each of its road boundaries. The site depth varies between 40.575m and 40.55m. The site falls about 2m from the rear (Gladstone Street) to the front (Darling Street). A single storey commercial/light industrial building is currently erected on the Site. As indicated above, the building footprint occupies almost all of the site, with vehicle crossings evident at both Darling and Gladstone Street frontages.
The site environs are characterised by a mix of building forms. It is residential development which predominantly fronts Darling Street near the site. It generally comprises a mix of single and two storey dwellings and terrace houses, with roof dormers a reasonably common feature. A mix of single and two storey dwellings are otherwise located on both sides of Gladstone Street.

Proposal

The proposal, as now amended, provides for demolition of existing structures, certain further investigatory and preparatory works (expanded upon below) and ultimately construction of two semi-detached dwellings fronting Darling Street and two semi-detached dwellings fronting Gladstone Street. Basement parking would be accessed from Darling Street.

In-fill affordable housing

The two dwellings fronting Darling Street are proposed as in-fill affordable housing under Div 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). There is no dispute that SEPP ARH applies to the site under relevant savings and transitional provisions. Relevant to this matter, cl 13(2) of SEPP ARH provides for a floor space ratio (FSR) bonus of 0.5:1 for in-fill affordable housing if the percentage of the gross floor area (GFA) of the development that is used for affordable housing is 50% or higher. The experts agree that the proposed in-fill affordable housing, would comprise two of the dwellings, and meets the 50% GFA threshold. Conditions of consent have been agreed which would require these two dwellings to be used for 10 years for affordable housing as defined in cl 6 of SEPP ARH and managed by a registered community housing provider (refer Annexure A Condition 36). The condition would require a restriction to be registered against the title of the property under s 88E of the Conveyancing Act 1919, to this effect. There is no dispute between the parties that the proposed arrangements would satisfy the requirements of cl 13(2) of SEPP ARH and that the 0.5:1 FSR bonus would apply to the proposal.

Physical layout

The proposal would involve two subsurface basement levels, although interposed by a central deep soil area (Drawing PD02 Part 1D and Part 2A). The lower basement level is at RL 11.70 and would provide parking for four vehicles along with bicycle and motorcycle parking. The upper basement level (RL 14.50-14.60) provides for floor space for each of the dwellings otherwise above. Basement excavation is indicated as close to all boundaries. For reference purposes, in regard to extent of excavation, the plans show the driveway would meet Darling Street footpath area at RL 16.41 and, in Gladstone Street, the top of kerb in the middle of the site is shown at about RL 18.9.
The internal dimension of the basement offset is shown as 500mm to both the eastern and western boundaries (Drawings PD02 Part 1D). However, the Darling Street stairway down into the basement is shown as within that setback. This proximity is particularly noteworthy in regard to the dwelling at 178 Darling Street (eastern neighbouring property which extends to Gladstone Street) and the dwelling at 1 Gladstone Street which are built close to and/or on the common boundary. I would understand that structural elements of the building and works concerned with protecting the structural integrity of these abutting buildings would need to occur within this offset area. The dwelling at 182 Darling Street (to the west) is offset about 1m from the common boundary.
There would be three levels of development for each of the dwellings above these two basement levels, the uppermost level located within the roof line to a greater or lesser extent. The ground level would be occupied by kitchen, living areas and office. The upper levels would be principally bedrooms. The middle level bedrooms would have balconies. At the ground level, each of the dwellings would have courtyard areas with proposed landscaping. Canopy trees are proposed in the central area where deep soil would exist. It is notable that above the basement levels the built form would be more offset from the eastern boundary, and on the line of the western boundary.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development.
I note that the applicant has provided specialist reports under the following titles Preliminary Site Investigation, Detailed Site Investigation and Remedial Action Plan (Ex A Tabs 14, 17 and 16), which provide considerable particulars, including the identification of certain contaminants and recommending removal as the appropriate strategy. It is indicated that the site can be made suitable for the intended use (Ex A Tab 16 p 29). I note further agreed conditions would require that subsequent to the demolition of the existing structures on the site, the applicant must be required to conduct further site investigation and prepare an updated Site Investigation and Remedial Action Plan to Council for approval (Annexure B Condition A6). I am satisfied that the land can be made suitable, after remediation, for the proposed multi unit housing development and that, under agreed conditions, the land would be remediated before occupation. I am satisfied that the proposed demolition can occur prior to remediation.

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

I accept the advice of the parties that SEPP ARH applies to the proposal. The reasoning is as follows. The DA was lodged on 26 November 2021, the commencement date of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). SEPP ARH was repealed on the same day. SEPP Housing provides savings and transitional provisions at Sch 7A, cl 2, as follows: (1) This Policy does not apply to the following matters - (a) a development application made, but not yet determined, on or before the commencement date, … (2) The provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter referred to in subsection (1).
Apart from cl 17 and the bonus floor space provisions relating to affordable housing (see [11]), the following provisions require attention. Clause 15(1)(b) requires the consent authority to take into consideration Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, which I have done and note that the planning and design experts are satisfied in regard to the design aspects of the proposal overall. Clause 16A requires the consent authority to take into consideration whether the design of the development is compatible with the character of the local area. While the planning experts accept that the development is compatible with the character of the local area, I give this more attention to related matters when considering the lay submissions below.

Leichhardt Local Environmental Plan 2013 (LLEP)

LLEP continues to apply to the site under cl 1.8A of Inner West Local Environmental Plan 2022. The site zoned R1 General Residential under LLEP and multi dwelling housing is permissible in the zone. The zone objectives, which I have had regard to, are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood.
Clause 4.4 relates to FSR. The maximum FSR under cl 4.4(2B)(b)(iv) is 0.7:1. If the bonus 0.5:1 is added (under SEPP ARH), the applicable maximum FSR is 1.2:1. The town planning experts agree that the proposal satisfies this requirement. The total GFA is calculated at 654m2 providing for an FSR of 1.11:1 (Drawing PD18D).
Under cl 4.3A(3), a landscaped area of 20% of the site area would be required and site coverage would be limited to 60% of the site area. It is agreed that the amended proposal satisfies these requirements. The plans show a landscaped area of 27.8% and site coverage of 58% (Drawing PD03G).
There is no building height control applying to the site under LLEP.
Clause 5.10 is concerned with heritage conservation. I deal with this when giving attention to objector concerns.
Clause 6.1 is concerned with acid sulfate soils. The site falls within Class 5 under the Acid sulfate soils map. I accept Council's advice that an acid sulfate soils management plan is not required as the relevant pre-requisites relating to Class 5 lands are not triggered.
Clause 6.2 is concerned with earthworks. This is a point of attention below. I also refer to cl 6.4 and stormwater management below.

Leichhardt Development Control Plan 2013 (LDCP)

There are numerous provisions of LDCP which have been points of attention in the exchange between the various experts in this matter. Ultimately, with the changes incorporated into amending plans and proposed conditions, Council does not press any concerns in regard to proposal's response to LDCP.

Objections from lay persons

Council's bundle of documents included written objections following the initial notification of the proposal (Ex 1 pp 236-376). There was further notification of the then amended proposal which resulted in documented objections filed on 4 August 2022. There were further objections then heard on site on 8 August 2022. The opportunity was taken by the Court to observe from the properties of a number of the concerned neighbours.
I adopt the following topics to frame the concerns raised, and will subsequently deal with these topics in turn: 1. Legitimacy of identified in-fill affordable housing (bringing about the FSR bonus) 2. Visual character compatibility (including heritage conservation concerns) 3. Amenity impacts 4. Traffic and parking 5. Structural and groundwater management concerns relating to excavation 6. Stormwater management 7. Construction stage impacts

Expert evidence

The experts providing sworn evidence during the hearing, or evidence filed in joint expert reports were as follows: Name Expertise Appointed by Tendered reports B McDonald Town planning, urban design and heritage Council Ex 6, 7, 9, 10 J Mead Town planning Applicant Ex 7, 9, 10 M Kassiou Development engineer Council Ex 6, 8, 11, 12 S Hadad Civil engineer Applicant Ex 6, 8, 11 J Nader Geotechnical engineer Applicant Ex 6, D Zaiter Structural engineer Applicant Ex 6, T Steal Traffic and parking Applicant Ex 9, 12

Legitimacy of identified in-fill affordable housing

The concern here was that given the scale and form of the development it could not be reasonably seen as qualifying as affordable housing. The objections raised the issue of the size and quality of inclusions (which included lifts). The proposal was seen as an illegitimate means of achieving the 50% FSR bonus.
The parameters are clear for qualification as in-fill affordable housing under SEPP ARH. Conditions of consent would assure the delivery of the accommodation for the required 10 year period, in this instance, managed by a community housing provider (reference Conditions 14 and 36 of Annexure B). Council observed that the proposal was not at odds with its own policies related to assisting in the provision of affordable housing and that rather it provides for "a type of housing which is also encouraged under council's policy and which council pursues via various other means" (Transcript 9/8/2022 p 49 L5).

Visual character compatibility

This topic frames objections raised on such matters as FSR, character, streetscape presentation, design, size, bulk, scale and height. I will also address heritage-related objections in this topic. The concern has a relationship with the bonus floor area available to the site.
It is obviously the case that the proposal would have a lesser size, bulk and scale were this bonus not to apply. Be that as it may, the proposal meets the statutory FSR controls applying to the site. I have sought further evidence from the planning and urban design experts on the objections raised (Ex 10 p 4). These experts advise me that they have examined the question of visual character compatibility closely in the preparation of their evidence. Indeed, it is clear that the experts' opinions have brought about a number of the amendments now evident in the proposal before the Court. The planning and design experts believe the proposed two storeys and pitched roof, with dormer, presentation to Darling Street would sit comfortably with the adjoining two storey development. They are satisfied that the architectural approach is sympathetic to and compatible with the streetscape character in Darling Street. The experts are also happy with the Gladstone Street presentation, seeing the façade as well detailed and compatible given the "architectural cues" in the locality such as 1A Gladstone Street.
In Ex 10 (p4) a concern was raised by Mr McDonald in regard to northern elements of the Gladstone Street-facing dwellings. His concern was that the presentation of these element was too much of three-storeys. This concern brought about further plan amendments, eliminating proposed balconies at the top level and a blade wall. As requested by Mr McDonald, the plans before the Court now moderate the visual presentation of the northern element of the Gladstone Street-facing dwellings as three storeys, in a considerable way (Drawing PD10F). On the basis of the evidence of the planning and urban design experts, recommendations from whom have been taken up in the proposal as now amended, I am satisfied that the proposal is satisfactory in regard to visual character compatibility.
I am aware that the site is located within Balmain East heritage conservation area (HCA) and in the vicinity of a number of heritage items. In drawing my conclusion above, I have also considered the effect of the proposed development on the heritage significance of the HCA of concern and heritage items in the site vicinity. Here I have been mindful of the heritage statement at Ex B Tab C, and also Mr McDonald's expertise in the field. I also note the fact that Council does not press any contention in regard to this topic. My consideration finds the proposal as bringing no unreasonable effect in regard to heritage conservation.

Amenity

This topic frames objections raised on such matters as privacy, solar access, landscaping, noise and view loss.
The neighbours to the immediate east and west each have private open space areas, which could be overlooked to an extent by residents of the proposal. The proximity of balcony areas of the neighbour to the south was also of particular note. If I first turn to the dwellings facing Gladstone Street, I note the deletion of the north-facing balconies on the top level and that the mid-level balconies, both north and south-facing would be screened, in accordance with the findings of the experts in Ex 10. When I turn to the south-facing balconies at the mid-level of the Darling Street dwellings, I would note that the proceedings were re-opened briefly to clarify the position of the experts with regard to the proposed privacy screens. The plans before the Court show partial screening along these southern balconies (Drawings PD046 and PD07D). Through advice from the parties dated 11 October 2022, it has been confirmed that the experts believe the screens shown in these drawings provide a reasonable response to privacy concerns. I accept the advice of the experts that the proposal, as amended, now provides a reasonable response in regard to visual privacy in this particular setting.
In regard to solar access for neighbours, the provisions of cl C3.9 of LDCP are relevant. The topic had not been pressed by Council in its original contentions, suggesting the presumption that the proposal satisfied relevant provisions of LDCP in regard to neighbour overshadowing impact. When I asked the planning experts some questions in regard to solar access, Mr Mead confirmed his view that the proposal satisfied the LDCP requirements. Mr McDonald raised a concern about areas within neighbouring properties that currently do not enjoy solar access during mid-winter periods due to self-shading, or shading by existing neighbours, according to the shadow diagrams (Drawings PD14E, PD15E, PD15D). Mr McDonald's concerns related to periods in between the times shown in the shadow diagrams. Control C19 of cl C3.9 of LDCP is relevant in regard to this topic: "Where surrounding dwellings currently receive less that the required amount of solar access to their private open space between 9am and 3pm during the winter solstice, no further reduction of solar access is permitted."
When I look at the shadow diagrams available to me (as referenced above), it seems clear enough that there would be no further loss of solar access to private open space of neighbouring dwellings between 9am and 3pm during the winter solstice, or that any additional loss would be minimal. I am conscious of the requirements, under s 4.15(3A) of the EPA Act, to be flexible in applying provisions of this kind, and would not see this as grounds for the applications refusal of itself. Of note here is that previously proposed canopy tree planting within the deep soil area (central to the site) was to be reduced, in part to address sunlight access concerns raised by objectors.
View loss and general visual bulk and massing impacts were also raised. I accept the agreed view of the experts that no unreasonable impacts arise on these topics.
In regard to general acoustic amenity and noise concerns raised by objectors, I accept the advice of the experts that this should not be seen as a substantive issue in this urban setting. There was a recommendation that the garage door "be installed to meet all relevant Australian Standards" (Ex10 p7). Proposed conditions 6 and 53 (Annexure B) satisfy this matter, in my view.
I also note that the amending plans setback the proposed development, for the most part, 1m from the property at 178 Darling Street, which is built to the boundary. This change from the original would improve airflow to that property in particular, given the side wall vents.

Traffic and parking

There were objections that the basement parking spaces were too small and inconvenient and would be underutilised, thus increasing on-street parking problems. In Ex 12, an expert observation was made that there were two factors directing the utilisation of off street parking: (1) the accessibility or ease of use of the spaces provided and (2) the availability or convenience of on-street parking. In expressing their satisfaction with the proposal on traffic and parking grounds, there was agreement from the experts that the on-site parking design meets the requirements of the relevant Australian Standard in that sense addressing the first "factor" above. The experts also observed that on-street parking was in high demand at present, addressing the second factor.

Structural and water management concerns relating to excavation

The neighbour concerns here related to both the proximity of the required basement excavation to nearby properties and associated risks in regard to damage and structural integrity, and that the basement excavation would influence groundwater flows, ultimately, to the detriment of other private property. Clause 6.2(3) of LLEP, concerned itself with earthworks, is also on point in regard to these concerns of the neighbours.
It is these factors which are the subject of a proposed deferred commencement conditions (see [5] and [6] and proposed deferred commencement conditions A1-A6 (Annexure B)). I consider this matter further below. Suffice to say here that the position of the experts was that there was a need for further investigation of the existing geotechnical and groundwater setting. The response to groundwater management was dependent on the water table location, with different scenarios outlined in Ex 11. The particulars of the means to protect and support structures on adjoining land would depend on subsurface features. The engineering experts believed that the required investigations would not be able to proceed until the building on site at present was demolished (Ex 6 par 1). The experts agreed on a way forward to establishing an appropriate structural engineering methodology which was seen to address these particular concerns relating to adjoining and nearby properties, as follows (Ex 6 p 4): "The experts agree that a deferred commencement condition is necessary, requiring a structural engineering methodology for excavation and building construction to maintain the stability of Nos 178 and 182 Darling Street and Nos 6 and 8 Gladstone Street. The report shall be submitted to meet the satisfaction of the Council prior to the issue of an operational consent."

Stormwater management

A stormwater concept design was submitted with the proposal (Ex A Tab 8). This concept would be augmented by proposed Condition 29 (Annexure B) which provides a list of specific requirements for stormwater drainage for the proposal. In accordance with the requirements of Condition 29, and noting the agreement of Council's relevant expert with the condition, I am satisfied in regard to the matters listed at cl 6.4(3) of LLEP.

Construction stage impacts

Concerns were raised about construction noise, traffic management and also the risk of exposure of as yet undetected contamination. Conditions 19 and 20 (Annexure B) require a detailed Construction Traffic Management Plan be prepared by a person with RMS accreditation. In regard to risk of so far undetected contaminants, Condition A6 (Annexure B) provides that after completion of demolition, and in conjunction with the geotechnical investigations, the Applicant must conduct further site investigation and prepare an updated Site Investigation and Remedial Action Plan for Council for approval. Typical construction stage controls apply in regard to neighbour amenity protection (Condition 32 in regard to construction hours, including more limited hours for activities generating noise levels greater than 75dB(A)). I would note that these controls are typical and generally acceptable to the Court. While they do not commonly appease all neighbour concerns about adjacent construction, something that in a practical sense needs to happen from time to time, they would moderate the effect somewhat.

Setting in regard to development application evaluation and determination

Design and form of the proposal is satisfactory

As indicated earlier, Council has advised the Court that the proposal, as now amended and in accordance with proposed conditions, has addressed each of its contentions. Having considered the objecting submissions, and evaluative responsibilities generally under s 4.15(1) of the EPA Act, I find that the design and form of the proposal is satisfactory, again subject to proposed conditions. However, there remains an important uncertainty relating to the geotechnical and structural engineering particulars. I have considered the advice of the parties and find that, in the overall circumstances, there is a statutory approach available to advance this matter, mindful of the provisions of s 56 of the Civil Procedures Act 2005 (CP Act). Below the approach is outlined.

Statutory approach to the circumstances of this case

The suggested approach involves a two-step decision by the Court, at this time. The first step is that consent be granted under s 4.16(1)(a) and s 4.16(4)(c) of the EPA Act for demolition of existing structures. Section 4.16(1) provides for the granting of consent to an application, among other things, subject to conditions. More pertinent here is s 4.16(4)(c), which provides for the granting of "partial" consents: (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development.
So under s 4.16(4)(c) consent could be granted for demolition of on-site structures as a "part of" the development application under appeal before the Court. In practical terms, and were the applicant to act on that consent, the resultant works (ie demolition) would allow the undertaking of the required further geotechnical and related investigations, at present prevented by the existence of the on-site structures.
The second step is that under s 4.16(4)(c) and 4.16(3) of the EPA Act, consent be granted for the remainder of the development. That is, for the required remediation works and construction of the four unit multi dwelling housing development including associated structural and groundwater management works; but under deferred commencement provisions. It is s 4.16(3) which provides for deferred commencement consents, as follows: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
The matters which arise with this approach were given some attention by Jago J in CEAL Ltd v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302 (CEAL) at [24]-[26]. While the section references in CEAL are that of a previous version of the EPA Act, there is no change in relevant substance: 24 Section 80(4) of the EPA Act provides that development consent may be granted for the development for which the consent is sought, for that development, except for a specified part or aspect of that development or for a specified part or aspect of that development. Section 80(5) provides that a consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under s 80(4), but development consent may subsequently be granted for that part or aspect of the development. Those provisions do not merely allow a consent authority to grant consent to part of a development. The provisions ensure that the power of a consent authority is not exhausted by an initial determination to grant consent. In other words, if a consent authority grants consent to part of a development, the consent authority may subsequently grant a separate consent to the balance of the development absent the making of a fresh development application... 25 There is potential for tension between the obligation in s 79C(1) to take into consideration matters of relevance to the development the subject of the development application and the capacity under s 80(4) to grant a consent limited to a specified part or aspect of the development and under s 80(5) to grant consent subsequently to any part or aspect for which development consent was not initially granted. This potential is likely to be more acute where the various parts or aspects of the development are interdependent. 26 The presence of ss 80(4) and (5) and, for that matter, s 80(3) with respect to deferred commencement conditions does not dictate an outcome in any particular case. The provisions increase the capacity of a consent authority to tailor any development consent as appropriate to the circumstances. It remains a matter for the consent authority (or the Court exercising its functions on appeal) to determine the weight to be given to relevant considerations, to weigh them one against the other, and to determine what should be done in the light of those considerations.
CEAL (at [24]) makes plain that it is the case that the grant of consent for demolition need not exhaust the power of the Court in regard to this development application. While it is not bound to do so, it is open to the Court to grant a second separate consent to the balance of the development, absent the making of a fresh application.
In CEAL, reference is made to the "tailoring" of a consent to the appropriate circumstances (at [26]), but also to the potential "tensions", in this instance, between the use of deferred commencement provisions, now under s 4.16(3) of the EPA Act, and the need to properly take into consideration relevant matters under s 4.15(1) of the EPA Act. It would be inappropriate to defer the consideration of essential matters, as required under s 4.15(1), by use of deferred commencement provisions (eg Palm Lake Works Pty Ltd v Ballina Shire Council [2019] NSWLEC 1479 at [399]).
The parties also drew to my attention to GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 (GPT RE), where more particulars on the limits to deferred commencement consents were considered, including: 1. that deferred commencement matters be limited to "details" of the development, and that use of the provisions would other than "significantly alter the development" (GPT RE at [55]), and 2. that deferred commencement conditions, by their particular design, have a function related to addressing otherwise concerns relating to the "uncertainty" of a deferred commencement determination (GPT RE at [56]).
When considering the "tensions" mentioned in CEAL (at [25]), and whether the circumstances are available to exercise the powers under s 4.16(3) of the EPA Act, relating to deferred commencement, I note the parties believe these powers are available, and the approach is lawful. The parties agree that the matters under attention are only concerned with the details of the development and would not bring about anything to significantly alter the development as understood now. Further, the parties agree that the deferred commencement conditions as proposed do address the question of uncertainty. That is to say the deferred commencement conditions are prescriptive and clear and readily measured against criteria established in the conditions.

Consideration

I accept the advice of the parties that the suggested approach is lawful, and appropriate.
The geotechnical desktop study (Ex A Tab 15) presents information on regional geology and inferred subsurface conditions including in regard to groundwater. I note that the source material for this study is either quite remote from the site, or small scale. The study then suggests various potential strategies including in relation to excavation approaches, vibration monitoring, groundwater management and excavation stability. The study has some use in painting a picture in regard to a range of possible scenarios for subsurface conditions and construction management responses. It is clear that what is missing here are the site specific particulars, with the starting point being the requirement to understand site specific subsurface conditions.
Proposed deferred commencement condition A2 (Annexure B) requires the applicant to conduct the type of geotechnical investigations which are necessary to resolve the relevant particulars. It specifies minimum numbers for test bores and their locations. Certain matters would become clear with the completion of this work. In particular, proposed Conditions A3 is concerned with groundwater and sets the path for basement works (in particular whether "tanking" is required), Conditions A4 and A5 are then concerned with the resolution of structural engineering concerns. Condition A4 requires preparation of an integrated structural and geotechnical report and structural plans. Condition A5 includes performance requirements in relation to addressing potential impacts on surrounding private properties and Council property, less technical requirements include that "measures for monitoring the stability of the foundations and other works of the adjoining properties must be specified" and that there be "no adverse impact on surrounding properties". Condition A6 then takes the opportunity to require a further site investigation in regard to contamination, along with the preparation of a further remediation action plan for Council approval.
I accept the advice of the parties and relevant experts that the circumstances at hand address the relevant pre-requisites for use of a deferred commencement condition under s 4.16(3) of the EPA Act. I might think of the test as threefold. The first, and in no particular order, relates to the substance of the matters involved in the deferred commencement conditions. In this instance, the matters for attention in the deferred commencement conditions are matters of detail which will direct construction particulars. They relate to how the development will be achieved, rather than what will be developed. They would not and cannot significantly alter the development in my opinion.
The second test is concerned with the question of certainty. In this instance, the deferred commencement conditions nominate evaluative criteria and performance outcomes. There is a need for Council approval of an integrated structural and geotechnical report and structural plans informed on subsurface conditions which, among other things address the question of how there will be "compliance" with the requirement for "no adverse impact on surrounding properties". In my opinion, the particulars of the adopted approach address otherwise concerns relating to the "uncertainty" of a deferred commencement determination, and there is a satisfactory degree of certainty embodied in the approach.
The third test is whether the path results in the deferral of essential evaluative matters under s 4.15(1) of the EPA Act. In this instance, I am also satisfied in regard to this matter. A matter of interest might be in regard to the impact on the structural integrity of the adjoining private or Council property. However, I have given consideration to this topic and note that the relevant experts, aware of the setting, agreed on a course which is essentially now being followed (see [43]).
A further matter is in regard to cl 4.6 of SEPP Resilience and Hazards and proposed deferred commencement Condition A6 (see [57]). Here I note the previous studies which have already identified, to my satisfaction (see [15]-[16]), that the land can be made suitable, after remediation, for the proposed multi unit housing development, with agreed operational conditions allowing for validation provisions (Annexure B Condition 34). In this instance, the proposed demolition provides an opportunity to more finely focus on the contamination and remediation particulars, but in my view the statutory requirements under cl 4.15(1) of the EPA Act have been addressed, in regard to contamination, without the inclusion of Condition A6.

Conclusion

The proposal in its amended form is acceptable on its merits. In accordance with my findings above, the proposed development warrants support having a mind to the relevant planning provisions and the matters raised in objector submissions. In this instance a stepped approach to the determination of the application is warranted. This will involve the grant of consent for the demolition of the existing commercial/light industrial building to precede approval of the remainder of the development. The approval of the remainder of the development would be subject to deferred commencement conditions involving the finalisation of structural and groundwater responses to subsurface particulars, matters which can only be determined after further subsurface investigations, themselves dependent on demolition of existing on-site structures.

Orders

The Court orders that: 1. The appeal is upheld. 2. DA/2021/1170 for demolition of existing structures, excavation, remediation and construction of four multi dwelling houses, including in-fill affordable rental housing dwellings, with basement car parking, at 180 Darling Street Balmain (Lot 1 DP 919080) is determined having regard to the provisions at subss 4.16(4) and (5) of the Environmental Planning and Assessment Act 1979, as follows: 1. The grant of consent for that part of DA/2021/1170 involving demolition of existing structures, subject to the conditions of consent set out in Annexure A (as amended on 23 May 2023). 2. Subsequent to Order 2(a) in these proceedings, the grant of deferred commencement consent for the remainder of DA/2021/1170, subject to the conditions of consent set out in Annexure B (as amended on 23 May 2023). 1. The exhibits are returned with the exception of Exhibits A, B, and 3, which are retained. ……………………….. P Walsh Commissioner of the Court Annexure A (201925, pdf) Annexure B (305823, pdf)

Amendments 23 May 2023 - Pursuant to rule 36.17 of the UCPR, amendment to correct typographical error in Annexure A and B, with amendments reflected in the Orders. 23 May 2023 - Pursuant to rule 36.17 of the UCPR, amendment to correct typographical error in Annexure A and B, with amendments reflected in the 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: 23 May 2023

(2007) 159 LGERA 232

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Cases Cited (5)