Wechsler v Lane Cove Council

What is this case about?

1. This case is about a masonry wall constructed on a waterfront property along part of the northern side boundary of the Site, and adjoining 113 Northwood Road, Northwood. The Wall was constructed not in accordance with the Consent. A Directions Notice was issued by the Principal Certifier, Warrick Norris on 9 December 2021 (Ex 1, Tab 1) and an inspection on 20 January 2022 by Mr Norris confirmed that the steps to remedy the non-compliance had not been taken. The Respondent issued the Order on 27 January 2022 to the Applicants to stop work until such time as the required planning approval has been obtained.
2. The situation on the Site is that there is a Wall that is partially approved for use up to what is depicted as a red line (refer to Figs 2(a) and 2(b)) and depicted as a yellow line in Fig 3(a), 3(b) and 3(c)). There is a part of that Wall that is constructed above the red line for which the BIC Application is made and there is a Development Application for further works to occur to that Wall for the erection of a fence on top of the Wall using masonry, steel frame and timber slats with some landscaping.
3. The Court is tasked with determining the three appeals which come down to, in essence, whether the construction certificate issued in relation to the Consent provides evidence of consent to construct the Wall above the red line, as claimed by the Applicants, and whether the Order should be amended or revoked.
4. The Respondent's case is that there is insufficient information to assess the DA Appeal and the BIC Appeal and, in the alternative, if the Court were to find that there is sufficient information for assessment, both the DA Appeal and the BIC Appeal raise sufficient merit concerns to warrant a refusal to grant the consent sought and to warrant a refusal to issue the Building Information Certificate. In any event, the Respondent submits that the DCO Appeal should be dismissed if the DA Appeal and the BIC Appeal are each dismissed, that is, that the Order should not be modified or revoked.
5. The Site is a battle-axe allotment with an access handle about 2.3 metres (m) wide, about 31m long and about 71.3m2 in area that connects to Northwood Road. The Site has a total area of 619.3m2 (including the access handle from Northwood Road) and is irregular in shape and falls about 20m from its street frontage to Northwood Road down to its rear boundary at Woodford Bay and falls about 8m from a rear terrace of the dwelling to this same foreshore. On the Site there is a part two and part three storey dwelling house and a boat shed at its foreshore. The Site is subject to the provisions of the Lane Cove Local Environmental Plan 2009 (LCLEP) and is zoned R2 - low density residential under the LCLEP. The Site is also subject to the provisions of the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SHF DCP) as well as being subject to the provisions of the General Objects; Development in Foreshore Areas, and Fences under the Lane Cove Development Control Plan 2010 (LCDCP);
6. The adjoining neighbouring property to the north at 113 Northwood Road, is a heritage item under the LCLEP and is located immediately north of the Site.

Parties Positions and the evidence before the Court

1. The Respondent's case is set out in the three Statements of Facts and Contentions (Ex 2, 3 and 4) which I come back to consider in further detail below. All issues/contentions in all statements of facts and contentions are pressed by the Respondent. In opening, the Respondent submits as follows (Transcript 25 October 2022, page 69 at par 1 to 24): "There are two fundamental propositions in relation to the development application and building information certificate applications. The first is that there is not sufficient information anywhere in any of the application documents that would enable the Court to undertake a proper assessment of the merits in relation to the DA of the development application, and in relation to the building information certificate of a notional DA and if you do undertake a merit assessment of those two, having regard to the development application and the notional DA under the building information certificate, you would not be satisfied that the DA warrants approval by way of a grant of development consent because of the unacceptable impacts in terms of the proposed wall and fence in terms of its impact on views both to and from the foreshore. It unreasonably impacts on the natural features of the Sydney Harbour foreshore and it does not seek to minimise its impact on those natural environments or its impacts on views and you will see that this wall is somewhat of an outlier in terms of features along this part of the foreshore. By the same token, on merit, you would not be satisfied that a building information certificate should be issued to regularise that part of the as built wall for the same and similar reasons. In relation to the stop work order, having regard to the council's position that neither building information certificate either can or should be issued, or neither can nor should consent be granted to a development application, you would not be satisfied that the stop work order should be modified in any way"
2. The Applicants' case is that the Wall is built in accordance with the Consent and in accordance with the original drawings which appear under Tab 18 of the Respondent's bundle of documents (Ex 1) being the Construction Certificate dated 25 May 2017 (CC). The Applicants rely on the Reduced Levels (RL) shown in the CC plans. The diagrams of the CC were subject to a variation in which the elevated platform, which is shaded as horizontal parallel lines, was removed. The Applicants did not proceed with that design and the staircase was redirected, but the RLs on the CC diagram remain relevant as they show the profile of the land pre-existing the excavation (Transcript 25 October 2022, page 70 at par 45). The land drops from RL 7.75 ("Structural steel framed and planked decking to eng's detail, or the ground floor terrace") to RL 3.5 ("the boat shed") and to RL 1.5 ("the landing closest to the water").
3. The CC diagram at folio 136 of Ex 1 includes a notation pointing to the proposed staircase (which was not built) reading "Rock cutting and retaining walls as required to engineer's details" and the Applicants rely on this to support his case that Council provided an approval for works which required extensive excavation and retaining walls. The Applicants rely on the "Proposed Path Layout" in the CC noting the "0.4 Clear of Boundary" notation and submits that the constructed retaining walls along the northern boundary are gravity retaining walls and when the CC was issued there was a high degree of uncertainty as to what would be found underneath. The First Applicant submits as follows: "It was a steeply sloping block. It was slipping into the water. It was silting the water. We had failing retaining walls and there was a considerable effort to determine what was underneath it through consultants and even a ground penetrating radar survey, all, all of which were pretty well not conclusive. We didn't know whether we would find rock and that's why we employed these generic, generic designs of retaining walls." (Transcript 25 October 2022, page 72 at 41) "We were working on the CC that was given to us. It was signed by the PCA. It was based on the development consent signed by the council. If the council feels that it was somehow inadequate they shouldn't have signed it. It's on their responsibility to ensure that they convey the messages properly. We cannot be waiting for, relying on what they have said. So that wall was built in reliance on the CC and we say that it is a legitimate wall." (Transcript 25 October 2022, page 73 at 20)
4. The Applicants further rely on the landscape plan in the Modified CC (Tab 19, Ex 1) and submit that it shows a plan very much similar to what is now proposed and that notwithstanding the 'exclusion' of the wall in the Modified CC, the First Applicant believes they have "an entitlement to do the development on the basis of what was granted in those CC" (Transcript 25 October 2022, page 73 at 34). The Applicants submit that it is a reasonable interpretation that the Wall is part of the CC.
5. On the third day of the hearing the First Applicant sought to rely on his "personal evidence" contained in a document titled "Applicant's Evidence in Reply to Expert Evidence" (Ex M) stating: "I lodged with the Court this morning my personal evidence and I understand that the Court needs to evaluate that according to the way it sees it but given that I am the only one who knows what actually went into the construction of this I think it should be taken as being fairly compelling evidence of what transpired in respect to excavation at that particular point. I'll leave it at that, there's nothing that I can take it any further in the present circumstances other than to say what I've said in that particular piece of evidence." (Transcript 16 November 2022, page 51 at [25])
6. The First Applicant had applied at the Directions Hearing on 11 August 2022 before the Registrar for the matter to be heard before a Judge because of the complexity of the proceedings. During the proceedings, the First Applicant advised the court that he had spent over $40,000 on the construction of the Wall and would not spend money on legal advice or representation. I note that the Development Application in Ex E discloses estimated cost of work at $24,000. In closing, when I noted the complexity of the matters which had been heard over 3 days, the First Applicant declared it's just "a fence!" (Transcript 16 November 2022 page 105 at 40).
7. The proceedings commenced onsite with a view from the adjoining property at 113 Northwood Road, Northwood, followed by an inspection from the Site. Whilst onsite it was agreed that the portion of the Wall for which use was approved by the Consent was not clear. The experts reached agreement while on site, and had the wall marked indicating the extent of the approved wall pursuant to DA137/2016.
8. Mr Merlino for the Respondent Council, provided a summary of the inspection which is recorded on the transcript (Transcript 26 September 2022, pages 2-3) and which I reproduce as follows: "The parties undertook a site inspection this morning. Present at the site inspection was yourself as commissioner, myself as the solicitor for the council, Mr Zorzetto from my office, Mr Rajiv Shankar, Mr Neil Lynch, and Mr Andrew Thomas, all council officers. And I understand that Mr Wechsler the first applicant in the three sets of proceedings and Mr James Coleman appeared with Mr Wechsler. The site inspection commenced by hearing some objector evidence from Dr Tim Harrington of 113 Northwood Road, Northwood. Parties went onto Dr Harrington's site where the parties proceeded to observe the presently constructed masonry boundary wall from the stairs accessing the water from the rear of 113 Northwood Road. It was observed that to get an understanding of the unauthorised works that are subject of the application for a building information certificate as well as an understanding of what is proposed in terms of the development application for extension of that wall and a fence on top of that - you will recall we observed some temporary timber, pieces of timber that were installed at various points along the boundary wall that steps down the rear of the site along that northern boundary so that the parties could understand what is being proposed in terms of the height of the proposed lightweight structure on top of the wall by way of a fence. And as I understand it, the applicant stated that the top of those pieces of timber were located at 1.8 metres above what was called the stringer line of the wooden staircase at the rear of 113 Northwood Road. So that was a submission made by Mr Wechsler. I note there's no surveying of the tops of those pieces of timber to accurately identify whether they are actually 1.8 metres. But in any event, they gave us an idea of the potential impacts of the proposed fence. The parties then proceeded onto the applicant's site at 113A Northwood Road, Northwood. We proceeded down the southern boundary, along the southern boundary of the site towards the rear where we observed no boundary fence between 113 and 113A and 113B Northwood Road. To observe the extent of the constructed northern boundary wall and also to understand the height of the proposed fence from 113A Northwood Road. We observed at that time and the parties' experts proceeded to identify and agree a line on the constructed northern boundary wall which creates a - or delineates between the lower - below that line which was painted onto the wall. Below that line being the extent of the approved wall within development consent DA137/2016, and the remaining part of the wall above that line is the unauthorised section of the masonry boundary retaining wall. We also observed a temporary indicative plastic green screen which we understand was shown by way of an example of the finished outcome of the proposed fence. It is clear having regard to what's occurred onsite and the previous matters in relation to expert evidence that the experts will need to properly joint conference in relation to all of the contentions in the proceedings, having not done so in the document which was purported to be a joint expert report."
9. The typed oral evidence of the objector neighbour has been tendered and is marked Ex 8.
10. The First Applicant sought to make a clarification in relation to the location of the 'end of the proposal' he had indicated on site, and my observation that the location from where he had indicated a photo (of the Second Applicant in the bedroom) was taken , was not a location within the parameters of the DA Appeal before the Court. The First Applicant on the first day of the proceedings said as follows (Transcript 26 September 2022, pages 5-7): "APPLICANT: Okay. Just one other point. At the, at the site visit, you asked me where the, the end of the proposal was. COMMISSIONER: Yes. APPLICANT: And I said to you that there was an issue of overlooking directly into the bedroom. And when you pointed it out, you pointed out to me that it was outside the scope of the application, and I indicated to you onsite. COMMISSIONER: All I said was the location from where you indicated the photo was taken-- APPLICANT: Yeah. COMMISSIONER: --was not a location within the parameters of the development appeal before the Court. APPLICANT: Okay. Okay. Well, my intention was that the fence give protection, visual protection on the northern side of the property which includes the area that is outside the scope I indicated onsite. And the drawing that I've got - I have to get some glasses on. "Proposed fence extension of boundary fence 113A revision B" has got three lines on it, one being 1.4 which is basically the level of the masonry, 1.8 which is the level of which a person cannot oversee, and 2.2 was the line which was shown on the environmental planning and - what's it called - Environment and Planning Department's guidance on fences in sloping sites where you have 1.8 extending out to 2.2 to give it a, a horizontal character. COMMISSIONER: Yes. APPLICANT: So that's why those lines were - but it was the intention that the scope of the application was to include those areas on that line for which visual privacy was required. And they extend outside the line that I indicated this morning. COMMISSIONER: Well, it's a matter for you then to establish what your application is before the Court. APPLICANT: Right. COMMISSIONER: I cannot give you legal advice. APPLICANT: No. COMMISSIONER: Other than to identify that what was seen onsite and was indicated to me onsite was a particular location. It was on a landing and it was marked and identified within plans that that - from that point back towards the dwellings was not part of the DA appeal and from that point towards the water is part of the DA appeal. APPLICANT: Yes. COMMISSIONER: It's a matter for you, Mr Wechsler-- APPLICANT: Okay. COMMISSIONER: --to satisfy yourself as to whether it's in or it's out, and whether or not you need to make any amendment to your application."
11. The Applicants tendered a document titled "Northern Elevation of Proposed Fence" on the third day of hearing 16 November 2022 (Ex R) in order to clarify the earlier Northern Elevation filed with the Class 1 Application. The Planning Experts considered this document and agreed that it did not amend the Development Application other than an additional screen which the First Applicant does not press or rely on. I reproduce the Northern Elevation below at Fig 1: Fig 1: Northern Elevation of Proposed Fence (Ex R)
12. There was argument and submissions on the first day of the hearing in relation to the lack of relevant expert evidence before the Court and an Agreed Short Minutes of Order was provided to the Court and the following orders were made: 1. Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (Uniform Procedure Rules), the Court made the following directions regarding expert evidence by agreement on 26 September 2022 and the hearing was adjourned part heard to 25 October 2022: 1. Rajiv Shankar, Neil Lynch, and James Coleman are to confer under the Uniform Civil Procedure Rules r 31.24 and prepare a joint expert report addressing the following: 1. The agreed position of the approved height of the northern boundary wall pursuant to development consent DA137/2016; 2. In proceedings number 2022/50716 known as the DCO Appeal, in relation to the Statement of Facts and Contentions filed 2 June 2022, contentions 1 and 2; 3. In proceeding number 2022/197002 known as the DA Appeal, in relation to the Statement of Facts and Contentions filed 10 August 2022, contentions 1, 2, 3, 4, 5, 6, and 7; 4. In proceedings 2022/204518 known as the BIC Appeal in relation to the Statement of Facts and Contentions filed 31 August 2022, contentions 1A, 1, 2, 3, 4, 5, 6, and 7; 1. The Joint Expert Report of Rajiv Shankar, Neil Lynch, and James Coleman is to be filed and served by Monday 10 October 2022. 1. Unless the Court otherwise orders, expert evidence may not be adduced at the hearing other than in accordance with the directions made by the Court and in accordance with Uniform Civil Procedure Rules rr 31.19 and 31.20 including compliance with directions as to the type of service and filing of experts reports and joint expert reports; 2. The parties are to serve a copy of these directions and statement of facts and contentions as per div 2 of pt 31 of the Uniform Civil Procedure Rules, the expert witness code of conduct in sch 7 of the Uniform Civil Procedure Rules, and the court policies on joint reports and on conference of expert witnesses on all experts upon whose evidence they propose to rely within three business days of these orders being made, or for a statement of facts and contentions or reply filed after the making of these orders within three days of them being filed or served; 3. The experts are directed to give written notice to the Court and the party instructing them if for any reason they anticipate they cannot comply with these directions. In that case or if the experts have failed to comply with these directions, the parties will promptly list the matter before the Court for a Directions Hearing and give written notice to the other parties; 4. Experts are to ensure that a joint conference is a genuine dialogue between experts and in the common effort to reach agreement with the other expert witnesses about the relevant facts and issues. Any joint report is to be a product of this genuine dialogue and is not to be a mere summary or compilation of the pre-existing positions of the experts; 5. A joint report is to identify the experts involved in this preparation, the date of their joint conferences, the matters they agree about, the matters they disagree about, and the reasons for agreement, and reasons for disagreement. A joint report should avoid repetition and be organised to facilitate a clear understanding of the final position of the experts about the matters in issue and the reasoning process they used to reach those positions. Each expert is to sign and date the report; 6. The legal representatives are not to attend joint conferences of experts or be involved in the preparation of joint reports without the leave of the Court; 7. At the hearing, the evidence of the experts is to be given by way of concurrent evidence unless the hearing judge, or commissioner directs otherwise; 8. A party calling a witness may not without leave of the Court lead evidence from the witness, the substance of which is not included in the documents served in accordance with the Court's directions; 9. If any witness is required for cross-examination, notice is to be given at least seven days before the hearing; 10. A party who proposes to object to any part of an affidavit, statement, or report is to file and serve notice of its objections including the grounds in support at least seven days before the hearing.
13. The Applicants, after these orders had been made, enquired about the status of the earlier Joint Expert Report of Town Planning Experts, Rajiv Shankar for the Respondent, James Coleman for the Applicants, filed 21 September 2022. The following exchange took place (Transcript 26 September 2022, pages 9-10): "APPLICANT: One question. The existing file report still stands and this is a supplementary report. Is that correct? COMMISSIONER: Well, the first report is a report between two experts. APPLICANT: It can be tendered in evidence-- COMMISSIONER: Whether or not it is - yes. The short answer is yes, Mr Wechsler. It is a joint report between the experts. It doesn't appear to comply with the directions given on the last occasion. I've read the directions and the orders made today, and one of those directions is that within three business days of today, a copy of this is to be provided. APPLICANT: To? COMMISSIONER: To the expert. APPLICANT: Okay. So if I understand, will this - this report will only cover those elements that have been identified on this document. Is that right? They can't re-canvas what has already been put in the, in the mix. COMMISSIONER: Mr Wechsler, the experts have a role to play and it is all articulated quite eloquently in the court policies and in the schedule 7 to the Uniform Civil Procedure Rules. The experts should be competent enough to read those policies and understand their duties and obligations to the Court. Can I strongly urge and recommend, Mr Wechsler, that you seek some legal advice between now and 25 October? A matter for you and a matter for the second applicant as to whether you do that. But from the questions that you've asked today and during case management and the way the matter has proceeded to date, you would benefit from some legal advice. APPLICANT: It's very limited - very difficult to spend $40,000 on a fence. COMMISSIONER: I've given the encouragement so like I said, it's a matter for you. APPLICANT: Thank you."
14. The proceedings were adjourned after the first day and listed for a Case Management Conference on 11 October 2022 prior to the second day of hearing on 25 October 2022. The proceedings were not concluded on the second day of hearing and were again adjourned part heard to the final day of hearing on 16 November 2022.
15. No application to amend the Proposed Development has been made by the Applicants.
16. The Court had the benefit of the following expert evidence: 1. Joint Expert Report (JER) prepared by Rajiv Shankar, Town Planner for the Respondent, James Coleman, Town Planner for the Applicants and Neil Lynch, Compliance Officer for the Respondent filed 10 October 2022 (Ex 5); 2. Oral evidence from Mr Coleman and Mr Shankar during cross examination.
17. The Applicants tendered the document titled "Joint Planning Expert's Report" prepared by James Coleman for the Applicants and Rajiv Shankar for the Respondent, filed 21 September 2022 (Ex L) for the purpose of providing the court with evidence as to issues that need to be considered under s 4.15 of the EPA Act (Transcript 16 November 2022, page 5 at [30]). It is agreed that Ex L does not address or respond to any of the contentions in any of the Statements of Facts and Contentions. I accept the Respondent's submission that evidence on the merits and considerations under s 4.15 of the EPA Act whilst may be relevant, is to occur in the context of the Statements of Facts and Contentions raised in the proceedings (Transcript 16 November 2022 page 6 at [40]).
18. During oral evidence Mr Coleman agrees that in relation to Ex L, the issues raised in each of the Statements of Facts and Contentions in each of the proceedings were not "part of his brief" and that his focus was on the Development Application (Transcript 16 November 2022 page 23 at [5]). Ex L consists of some 69 propositions canvassed by Mr Coleman (Transcript 16 November 2022 page 21 at [30]) and Mr Shankar agrees that the Statement of Facts and Contentions were not considered when that document was prepared, only the points that were written in the document were considered (Transcript 16 November 2022 page 23 at [10]).
19. I allowed the tender of Ex L on the basis that it was not being tendered as a joint expert report prepared pursuant to the Court's Joint Expert Report Policy but instead it was tendered as a document prepared and as evidence of certain opinions expressed at certain times by certain people. (Transcript 16 November 2022 page 7 at [23].
20. I will now set out the principle issues in dispute as particularised in the contentions of the Statements of Facts and Contentions starting with the DCO Appeal (Ex 2), followed by the DA Appeal (Ex 3) and the BIC Appeal (Ex 4).

What are the contentions for the DCO Appeal (2022/50716)?

1. The subject of the Order (Ex 1, Tab 2) relates to the "Construction of a boundary wall and landscaped area not in accordance with approved plans of the Development Consent (DA 137/2016) dated 11 November 2016" and defined as "Building Work". The terms of the Order reads as follows: "You must: 1. Cease all Building Work until such time that a required planning approval has been obtained in respect of the Building Work"
2. The Respondent submits that the Wall and associated retaining planters were extended in height contrary to Condition 1 of the Consent.
3. The Applicants' Class 1 Application for the DCO Appeal was filed on 21 February 2022 (Ex D) and seeks to set aside the Order and, in the alternative, that the terms of the Stop Work Order be amended to the effect as follows: 1. Cease all building work associated with any specific relevant building works that violate the relevant Development Consent (DA 137/2016); and 2. Other building works, compliant with the plans of Development Consent (DA137/2016) may proceed.
4. The Respondent's Statement of Facts and Contentions filed 2 June 2022 for the DCO Appeal (DCO SOFAC) (Ex 2) contends firstly that the Building Work is unlawful and secondly that the Building Work has adverse impacts on adjoining properties.
5. The Applicants filed a Statement of Facts and Contentions in Reply (DCO SOFAC in Reply) on 9 June 2022 (Ex A). The red folder which contained the DCO SOFAC in Reply was returned to the Applicants and only the DCO SOFAC in Reply was tendered into evidence. The Applicant informed the Court that the DCO SOFAC in Reply together with the red folder was prepared for the purpose of the mediation pursuant to s 26 of the Civil Procedure Act 2005. This is evident in the DCO SOFAC in Reply in itself which contains a heading "Issues to be mediated" and addresses all three appeals before the Court and makes a number of references to participating in the mediation in good faith.
6. Reasons for the Order are required to be given when the Order is given (Pt 4, Sch 5, EPA Act). The reasons for the Order identified in the DCO SOFAC are not the same as the specified reasons in the Order. The reasons specified in the Order are as follows: 1. Council has received a complaint alleging that unauthorised "Building Work" was being carried out at the Site. 2. On 27 January 2022, Council officers visited the Site to investigate the above-mentioned complaint and confirmed that the allegation was well founded. 3. On 21 January 2022 Council received Written Directions (Part B) from Urban Approvals, the Principal Certifier for Construction Certificate PC09117, confirming the alleged complaints. 4. A search of Council's records revealed that development consent has not been approved by any consent authority with respect to the Building Work. 5. The Building Work has not been environmentally assessed by a consent authority. 6. The Building Work that is currently being undertaken is not an exempt development permitted under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). 7. Development consent is required in respect of the Building Work in circumstances where that has not been obtained. 8. The Building Work is being carried out without development consent from a consent authority, thus depriving affected persons the opportunity of being notified and heard with views being taken into account in the course of the normal development control process. 9. In the opinion of Council, the above state of affairs is not in the public interest and needs to be rectified immediately.
7. I accept that the works are not exempt development under the General Exempt Development Code in the Codes SEPP.
8. I also accept that the Consent (as amended) required the Wall to be constructed strictly in accordance with the red line on the 2 photos attached to the Consent. A copy of these photos is reproduced below at Fig 2(a) and Fig 2(b).
9. The Respondent provides the following relevant background in the DCO SOFAC (Ex 2) which gives useful and relevant background for all three of the proceedings: "14. The Consent was originally granted by the respondent on 11 November 2016 for a boat shed, landing, skid, sea walls, alterations to a deck, stairs and hard and soft landscape works in the rear yard of the Site and along its foreshore. 15. On 25 May 2017, Accredited Principal Certifier Warrick Norris of Urban Approvals issued Construction Certificate No. PC09117 (CC PC09117). CC PC09117 was limited to the construction of a boat shed, landing, skid, sea walls, alterations to a deck, stairs and hard and soft landscape works in the rear yard. 16. The Consent was subsequently modified on 10 July 2017 pursuant to a section 4.55 of the EPA Act. The minor amendments to the Consent were to correct the reference appearing on four of the approved plans of the skid that stated that it would '… extend 0.5m below HWM…' and was changed to state '…. extend 0.5m below ZFDTG..'. Without this correct reference the applicant confirmed that the approved skid would be unworkable as it would be about 1m above water level at low tide. The skid had been approved with a length of about 6m. Under this application its length was confirmed to be 6.3m. 17. The Consent was modified again on 13 August 2021 pursuant to Section 4.55 of the EPA Act for retrospective approval for; 1) the deletion of the approved cantilevered extension to the rear lower ground floor level terrace; 2) the construction of a retaining wall across the site; 3) the relocation and modified design of the approved stairs linking the rear terrace to the foreshore; 4) the enlargement of the approved boat shed; 5) the replacement of the approved landscape plan; and 6) the construction of a wall and associated planters along part of the Site's northern side boundary. 18. In relation to the last aspect of the amended Consent, being the construction of a wall along part of the Site's northern side boundary, the assessment report stated: A boundary wall has been largely constructed along the site's northern side boundary for the length of its rear yard. This wall was not proposed on the DA. Council has accepted it as part of the s. 4.55 Application because: � it is nearing completion; � its overall impact can be determined, and any submissions from neighbours in response to Council's notification of this application assessed; and � this approach is preferable to it being the subject of a Building Certificate. The wall is about 17m long and is between about 1.8m and 2m high at its eastern end (i.e. along the northern side of the rear terrace) and about 2.2m high at its opposite, western end (i.e. at the foreshore). It also has a mid-section about 1.2m high facing the landing that forms part of the access stairs. It partly addresses the fall of the site's embankment to the foreshore and has been constructed with stone blocks that have a stone capping and is nearing completion. 19. With the list of amended plans, the consent included two photos that showed a red line below the existing retaining wall along the Site's northern side boundary."
10. The Applicants' DCO SOFAC in Reply (Ex A) contends that the Modified CC approved the landscape plan resulting in the works, the subject of the Order, therefore being authorised works. The Applicants also contend that the Respondent Council is estopped and that it is "clearly an issue of unconscionable conduct for the Council to resile from its previous represented position" regarding the application of the Dividing Fences Act 1991 (Dividing Fences Act). This is an unusual contention to the extent that the Applicants acknowledge that the Codes SEPP does not apply to the Site because the Site falls within the Sydney Harbour Foreshore Area (DCO SOFAC in Reply, Ex A at 9.1)
11. I conclude that the landscape plan relied on by the Applicants, namely Landscape plan Drawing No LP01 dated 6 December 2021 (Landscape Plan) prepared by JCA Urban Designers Landscape Architects (included in Ex E) prepared in accordance with consent conditions 55 and 56 of DA 137/2016 (Part of Modified CC added as folio 160A to Ex 1, Tab 19 at folio 160A) is not approved by the Modified CC and my reasons are set out below in this judgment, namely that: 1. The Landscape Plan was prepared in order to comply with a condition of the Consent (Conditions 55 and 56, Ex 1, Tab 3)); and 2. The Modified CC (Tab 19, Ex 1) expressly excludes the Wall from the certification and as such the status of the Landscape Plan is not approved insofar as it relates to the Wall.
12. The Applicants' DCO SOFAC in Reply further states that "the fence" is required for privacy and includes a photo of a person getting dressed in the master bedroom. I will come back to the issue of privacy at [117] in the context of the planning provisions, controls, and the evidence of the experts. It is noted and relevant that the purpose of the Proposed Development, namely the addition to the Wall, is not for retaining.
13. There is additional relevant background included in the BIC Appeal Statement of Facts and Contentions filed by the Respondent on 31 August 2022 (Ex 4) which I set out below: "16. On 25 November 2021, the respondent received representation from the adjoining neighbour relating to the bulk and size of the boundary wall (Complaint). 17. Following the Complaint, an authorised officer contacted the Accredited Principal Certifier Warrick Norris to undertake an investigation in accordance with his obligations. 18. On 28 November 2021, an authorised officer received photos of the boundary wall and when compared to the photos attached to the Consent, there appeared to be significant inconsistencies, including: a. The wall being constructed above the red line; and b. the height exceeding what was approved. 19.[…] 20. On 9 December 2021, Mr Norris issued a Part A written direction under section 6.31 of the EP&A Act which required the Applicants to "Reduce the height of the concrete block wall such that it does not extend above the approved height as specified by the associated development consent as amended". 21. On 20 January 2022, Mr Norris attended a site inspection and subsequently issue a Part B Inspection Record which noted "The block wall located adjacent to the boundary known as 111A Northwood Road has been erected higher than approved by the associated development consent as amended". 22. On 27 January 2022, Council issued a Development Control Order, Stop Work Order, under section 9.34(1)(a) of the EP&A Act.
14. The three experts relied on the Consent photographs of the Wall marked with a red line in order to determine and then mark the physical wall on Site with a can of yellow spray paint whilst onsite on the first day of the hearing. The three experts agreed that the yellow line as marked on the Wall onsite reflects the position of the red line from the Consent. Photographs were taken of the yellow paint markings made on Site. I reproduce the Consent photographs below at Fig 2(a) and Fig 2(b) and I reproduce a sample of three of the nine photographs taken on site (Ex 7) at 3(a), 3(b) and 3(c): Fig 2(a) Consent photo Fig 2(b) Consent photo Fig 3(a) EX 7 photo from page 1 Fig 3(b) EX 7 photo from page 6 Fig 3(c) EX 7 photo from page 7
15. On 7 February 2022, Accredited Principal Certifier, Warrick Norris of Urban Approvals issued a Modified Construction Certificate No. PCA09117A (MCC PCA09117A) for all of the amended approvals, excluding the block wall / fence along the northern allotment boundary (adjacent to the boundary adjoining the premises knows as 111A Northwood Road) (Tab 19, Ex 1).
16. On 8 December 2021, Accredited Principal Certifier Warrick Norris issued a Written Direction Notice (WDN) Part A to the Applicants for works being undertaken that are considered to be inconsistent with the Consent (amended), as detailed below: "1) A block wall has been erected adjacent to the Northern allotment boundary (parallel with stairway from the adjoining premises known as 111A Northwood Road) exceeding the height as specified in the terms of the associated development consent and subsequent documentation (photograph indicating a height line). 2) Reduce the height of the concrete block wall such that it does not extend above the approved height as specified by the associated development consent as amended."
17. I now set out the contentions for the DA Appeal.

What are the contentions for the DA Appeal (2022/197002)?

1. The Proposed Development is better described as alterations and additions to the existing wall along the northern side boundary as consent is sought to carry out works to, and above, the existing wall. The evidence shows that the consent sought is actually described as "extension of existing fence".
2. The Respondent submits that it is not abundantly clear for what works consent is sought. It is a relevant exercise to review the consent sought. The description of the Proposed Development is ascertained from a number of different documents in evidence including as follows: 1. Class 1 DA Application (Ex E) "Extension of existing fence" and the following documents: 1. Northern elevation of proposed extension dated 16 February 2022 prepared by Hexiva Pty Ltd. 1. Northern Elevation of Proposed Fence Rev C dated 12 October 2022 (Ex R) 1. Section A-A dated 16 February 2022 prepared by Hexiva Pty Ltd. 2. Heritage map. 3. Landscape plan. 4. A4 DA Fence fixings. 5. Site Plan dated 26 February 2022. 6. Statement of Environmental Effects prepared by Robert Wechsler (Transcript 16 November 2022 page 74 at [19]) undated, at point 8: "The present application is to extend of the existing fence on the northern boundary by some 18 metres in length. The existing wall northern boundary fence and retaining wall has been sandstone clad in sympathy with the proposed fence extension. 8.1 Description of proposed Fence The design of the proposed fence extension is detailed in the attached drawing labelled as Northern elevation of the proposed fence and transverse section through the fence. The fence extension is designed to provide the applicant with privacy of his private open spaces and outdoor attached terrace from persons using the northern neighbour's walkway. The length of the subject fence is 18 metres. It comprises of: A structural support wall of reinforced masonry integrated with the retaining wall as detail in the appended drawings. Cladding of this wall with 30mm thick split face standstone visually integrated with the existing approved retaining wall as required by Clause C1.4.1(h) of the Land Cove DCP. Planter boxes manufactured from 30mm split face sandstone installed on the support wall. These planter boxes are mandated by the Council as shown on the landscape plan approved as part of DA 137/2016. A copy of this plan is submitted with this application. An automatic drip irrigation system installed to promote plant growth and promote growth of mosses and lichens on the sandstone to give an 'aged' and 'bush rock' appearance. A light steel frame of galvanised steel rectangular hollow section structurally attached to the support wall to support the stained slatted timber screen. The profile follows, in staggered format, the terrain with an overall finished height 1.8 to 2.2 metres above the retaining wall as detailed in NSW Environment & Planning information sheet 26. The timber slats are 150x19 mm thick and incorporate stainless steel wires to train climbing and prostrate plants growing in the planter boxes to 'green' the natural sandstone of the retaining and support walls." 1. Engineering report by Aranac. 2. Survey. 1. The drawing titled Northern Elevation of Proposed Fence Format Simplified dated 12 October 2022 (Ex R) describes the works as "Masonry Support Wall sandstone clad 3-4 courses above approved "red line" engaged into retaining wall in accord with approved landscaping plan and Engineer's Detail - see Note 1 "Heights to be staggered in accord with NSW Environment Planning publication 2.6 for sloping sites."" 2. The First Applicant has himself further described the Proposed Development as "not seen as concrete blocks, they are seen as sandstone clad … sandstone masonry and the framing has on it vegetation going upwards and downwards … in time the sandstone facing will age. (Transcript 16 November 2022 page 30 at [21] -[29])
3. The Respondent's Contentions for the DA Appeal in the Statement of Facts and Contentions filed 10 August 2022 (DA SOFAC) (Ex 3) can be summarised as follows: 1. The Development Application contains insufficient detail, is incapable of assessment, and would result in approving an uncertain development; 2. The Proposed Development will have unacceptable impacts on amenity; 3. The Development Application will result in unacceptable impacts on views; 4. The height of the Proposed Development will result in a wall and fence that is unacceptable; 5. The impacts of the Proposed Development, the lack of site suitability and public interest warrant refusal of the Development Application; 6. Further information required - the proposal is not accompanied by sufficient elevational detail for assessment; and 7. Detail about the gaps within the proposed timber slats has not been provided.
4. The Applicant's Class 1 Application for the DA Appeal was filed on 6 July 2022 (Ex E). The Applicants filed a Statement of Facts and Contentions in Reply on 30 August 2022 (DA SOFAC in Reply) (Ex B)
5. The Applicants contend that the Development Application includes documents such as an accurate scaled elevation of the proposed fence, which is now the Northern Elevation of the proposed fence marked as Ex R, and a certified survey which includes: 1. a support wall with current heights in Australian Height Datum (AHD) clearly marked and digitised, 2. the locations of the steps and landings of the stairway of 113 Northwood Road and 3. that the location and height of the Applicants' stairs is not part of the application. (Ex B, page 3-4)
6. I note that the Development Application Class 1 Application filed 6 July 2022 (Ex E) does include a Survey dated 28 March 2022 which states in the covering letter from M Y Xu & Co, "Based on an AHD datum of RL 20.15 metres being a benchmark nail found in top of kerb I have also determined the top wall levels of the stone clad concrete block wall and the stringer levels of the timber step stringer as shown on the attached sketch." [emphasis added]
7. I finally now set out the BIC Appeal contentions.

What are the contentions for the BIC Appeal (2022/204518)?

1. The Building Information Certificate Application was lodged on 11 April 2022 by the Applicants via the NSW Planning Portal.
2. The Contentions that warrant refusal as set out in the Statement of Facts and Contentions filed by the Respondent on 31 August 2022 (Ex 4) are as follows: 1. Council's fee to assess the Building Information Certificate has not been paid; 2. The BIC Application contains insufficient detail, is incapable of assessment, and would result in approving an uncertain development; 3. The Development, if retained, will have unacceptable impacts on amenity; 4. The Development, if retained, has unacceptable impacts on views 5. The height of the Development, if retained, will result in a wall and fence that is unacceptable; 6. The impacts of the Development, the lack of site suitability and public interest warrant return of the Application; 7. The Application is not accompanied by sufficient elevational detail for assessment; and 8. The Application does not contain sufficient information to calculate the capital investment value of the Development.
3. Many of the BIC Appeal contentions are common with the DA Appeal contention and will be addressed below by the evidence common to all three proceedings.
4. The Applicants' Class 1 Application for the BIC Appeal was filed on 13 July 2022 (Ex F). The Applicants filed a Statement of Facts and Contentions in Reply on 19 September 2022 (Ex C).
5. The Applicants tendered an email from Warrick Norris dated 18 October 2022 (ExJ).
6. The issues for the DA Appeal and the BIC Appeal can be summarised and dealt with in two parts. Firstly, whether there is sufficient information to assess and determine the DA Appeal and the BIC Appeal. The second part arises if there is sufficient information and involves a merits assessment of the two proceedings. I now consider the evidence for each of two parts and make my findings accordingly. The findings and conclusions for the DA Appeal and the BIC Appeal will largely determine the outcome of the DCO Appeal.

Is there sufficient information to assess and determine the BIC and DA Appeals?

1. The contentions relating to insufficient information are contained in the DA SOFAC (Ex 3) Contention 1 (insufficient detail, is incapable of assessment and would result in approving an uncertain development) Part B3 Contention 6 (insufficient elevational detail for assessment) and in the BIC SOFAC (Ex 4) Contention 1 (insufficient detail, is incapable of assessment and would result in approving an uncertain development), Part B3 Contention 6 (insufficient elevational detail for assessment).
2. In relation to the BIC Appeal, the Court has evidence of numerous requests for information, pursuant to s 6.26 of the EPA Act, from the Respondent to the Applicants including letters from the Council dated 27 April 2022 (Ex 1, Tab 13) and 4 May 2022 (Ex 1, Tab 14). A follow up letter from the Council dated 17 May 2022 is at Tab 15 of Ex 1. Some information was provided by the Applicants on 18 May 2022 and a further letter from the Council dated 19 May 2022 sets out the reasons why the documents provided by the Applicants were insufficient for the purposes of adequately assessing the BIC Application.
3. It is noted that the BIC Application is sought only for that part of the Wall above the red line, below which is approved for use only by the Consent.
4. The BIC Appeal contentions are dealt with by the experts from page 20 of the JER (Ex 5).
5. The undisputed evidence before the Court is that the Applicants have failed to comply with their statutory obligation to pay the required fees payable in relation to Building Information Certificates. (JER, pages 20 and 21)
6. Mr Colman states that he is unable to form a view as to whether the application for a Building Information Certificate contains insufficient detail and is incapable of assessment and would result in approving an uncertain development (Contention 1 of the BIC SOFAC) because he was not a party to the preparation of the application. He does say that if the particulars to Contention 1 of the BIC SOFAC are true then he would agree with Contention 1 (JER, page 22 to 23). In cross examination Mr Colman agreed that the height and location of the existing steps and stair is not provided.
7. At page 23 in the JER the following evidence is before the Court: "RS, JC and NL agree that the application is not suitable for assessment or determination due to insufficient details or information being provided by the applicant as set out in the particulars of the contention. Thus, it is agreed that with limited information provided by the applicant, approving the application for Building Information Certificate would result in approving an uncertain development."
8. Mr Lynch was not cross examined during the hearing.

BIC Appeal findings and conclusions as to insufficient information

1. On hearing the BIC Appeal, the Court may do any or more of the following: 1. Direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit; 2. Revoke, alter or confirm a notice to supply information; 3. Make any other order that it considers appropriate. (s 8.25, EPA Act).
2. It is appropriate to undertake a notional or hypothetical development assessment of the unauthorised Wall consistent with the previous cases of Ireland v Cessnock City Council [1999] 110 LGERA 311;[1999] NSWLEC 250 and Lee v Randwick City Council [2021] NSWLEC 1200
3. The Building Information Certificate is sought only in respect of that part of the Wall which has been constructed above the red line and does not seek regularisation of that part of the Wall below the red line.
4. The drawings are not sufficiently clear to show what works are the subject of the BIC Appeal and on that basis alone the Building Information Certificate should not be issued.
5. I conclude that the Court is unable to direct the council to issue a Building Information Certificate because there is insufficient information to undertake the assessment of the unauthorised portion of the Wall. I conclude that the BIC Appeal must fail because there is insufficient detail and information to permit an assessment or determination of the Application and will result in approving an uncertain development.

DA Appeal findings and conclusions as to insufficient information

1. The evidence of Mr Colman is that as he had no part in the preparation of the relevant documents for the Proposed Development, he is unable to express an opinion on this contention (JER, page 2) and does not wish to express any view or opinion with respect to this contention (JER, page 3).
2. Mr Shankar gave evidence that there is insufficient information to properly assess the Development Application and Building Information Certificate. The extent of the insufficient information at the very minimum has been particularised in contentions 1 and 6 in each of the DA SOFAC (Ex 3) and BIC SOFAC (Ex 4). Mr Shankar states in the JER as follows: "I have reviewed the drawing, which do not indicate: The existing ground levels Location of the side boundary in relation to the proposed development - fence Height of approved existing retaining wall Height of the existing wall subject to the BIC Height of Planter boxes Height of light steel frame and stained slatted timber screen."
3. Having considered the Survey (Ex E) I find that the location of the side boundary is indicated however, what remains unclear is the wall height measurements. It is not at all clear whether the RLs indicated on the Survey for the Wall are: 1. For the Wall as approved by the Consent, that is the red line height, or 2. For the Wall as built, which is relevant and necessary information for the BIC Appeal, or 3. For the final finished Wall height which is relevant and necessary information for the DA Appeal.
4. The Survey simply relies on "the stringer levels of the timber step stringer". The RLs for the neighbouring stringer levels do not satisfy the requirement to provide the topography indicating spot levels or contours including that of adjoining property where relevant (Schedule A, Practice Note Class 1 Residential Development Appeals, Ex 9). I make a comment that it is unfortunate that the Applicants seems to rely on representations made by Mr Shankar "a long time ago" in relation to the stringer levels (Transcript 16 November 2022, page 103). Mr Shankar's representations do not and cannot override the provisions of legislation and planning instruments in relation to development that requires development consent. In short, the evidence before the Court is deficient including the Survey.
5. Mr Colman's evidence in cross examination is that he cannot tell what development is proposed from the Northern Elevation in Ex E because the drawing does not show the profiles of both staircases (Transcript 16 November 2022 page 66 at [15]-[31]). I note that the Northern Elevation in Ex R also does not show the profiles of both staircases.
6. The Respondent submits that as it is not clear for what works the development consent is sought in the DA Appeal, the Court is unable to assess or determine the Development Application and therefore, must refuse the Development Application on that basis. If a merit assessment is undertaken, the Respondent submits that the Court would conclude that there are unacceptable impacts which warrant the refusal of the development application.
7. The Court's Practice Note (Ex 9) includes at Annexure A the "Requirements for Plan". Mr Colman correctly identified that he did not have a plan but an elevation (Transcript 16 November 2022 page 63 at 15). The experts Mr Colman and Mr Shankar were cross-examined at some length. In relation to the Class 1 Development Application (Ex E) and Northern Elevation Rev C (Ex R), I heard evidence from Mr Colman when he was shown that drawing that it was "very difficult to correlate the elevations" and "it's easy to become confused" in circumstances where he did not have details as to the location of the stairs on both sides of the wall. In response to a question about whether a contractor would be able to quote on information provided in relation to Ex R Mr Colman gave evidence that there is a lot more information to come.
8. In relation to the northern elevation for the Development Application works the Respondent submits that there is not only insufficient information but also some misleading information. What has been referred to as the red line on the Consent is a staggered line as depicted in Fig 2 and again as a yellow line in Fig 3. However, the red line is identified in the northern elevation (Ex R) as a straight diagonal line mirroring the profile of the existing steps on 113. The Applicants say that that's done for normalisation but it is nevertheless an inconsistent and inaccurate depiction of what has been proposed. Significant time and effort was spent on Site with the three experts on the first day of the proceedings to mark the location of the red line on the physical masonry wall as depicted in the photographs at Ex 7, Fig 3.
9. I accept and conclude that the markings shown in Ex 7 are not accurately represented in the Northern Elevation Plan, Ex R. As the drawings also do not distinguish between the as-built works (namely, the works subject of the BIC Appeal beyond the approved Wall use, that is up to the red line) and the proposed works (DA Appeal) creates a fundamental jurisdictional issue as any approval of the works shown in the northern elevation Ex R would contravene the legal principle that there is no power to retrospectively approve as-built developments.
10. There is also a note on the Northern Elevation (Ex R) that that the support wall for the fence above it will "vary according to the slope". There is no indication of any levels to AHD of the finished height of the wall. There are no indications of levels of the stairs on 113A and there are no ground levels shown on any of the plans that are the subject of the DA Appeal.
11. I conclude that the final height of the Wall is indeterminate.
12. I accept that the insufficient information issues cannot be resolved by way of a condition of consent where I need the information in the first place in order to undertake the assessment and determination. The Court as a consent authority is required to consider and determine the development application that is being made by the Applicants. (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 at [289])
13. The First Applicant makes a number of closing submissions which I summarise as follows: 1. There are two defences to the DCO (Transcript 16 November 2022 page 87) 1. The Applicants already have consent (Ex P drawings) and were working on that consent so there is no cause to issue the Stop Work Order, and therefore reasons for issue of the DCO are invalid. 2. Construction was approved as part of the landscape plan in the Modified CC of 7 February 2022 (Tab 19, Ex 1, folio 160A). (Transcript 16 November 2022, page 88).
14. I have already made findings as to the status of the landscape plan at [41].
15. The Applicants ask the Court to uphold the DA Appeal on the basis that there is expert evidence that there is sufficient detail in Ex R (Northern Elevation Rev C) and that the standard of "Environmental Planning Information 26" is appropriate for a sloping block (Transcript 16 November 2022 page 91). I note that although Mr Coleman's oral evidence that "the standard you refer to is a sensible approach to a difficult design problem." (Transcript at page 83). I do not give this opinion much weight as the "standard" referred to is a document relating to the Dividing Fences Act and provides no assistance in these proceedings other than perhaps, at a very high level, some design guidance for such a structure on a sloping site.
16. The Applicants rely on the written submissions marked MFI A for the BIC Appeal which is a document filed with the Court on 19 September 2022 styled "Applicant's Statement of Evidence 2 (BIC)" and submits that the Court should step in and direct the Council to issue a Building Information Certificate as sought by the Applicants. In closing oral submissions, the First Applicant relies on the decision of Justice Biscoe in class 4 proceedings of Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114. I reproduce the relevant paragraphs of that decision below from [39] - [43]: "Principles of construction of development consents 39. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks": Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA)." 40. A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41]. 41. A development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105]. 42. Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324. 43. As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41]."
17. The First Applicant, in closing submissions referred the Court to The Laws of Australia, Administrative Law Vol 2 par 178 as follows: "There's also another reference I have here, the question of reinterpretation - reinterpreting their words and attempting to get a second bite of the discretion and that's The Laws of Australian Administrative Law decision, Administrative Law Volume 24, paragraph 178 and also the case on Little which I think is well known where the Court's have said the councils can't come along and reinterpret - reinterpret their own words" (Transcript 16 November 2022, page 93 at [46])"
18. I have taken this submission by the First Applicant to be in relation to the Applicant's contention of estoppel which I come back to below at [128]-[131] however, I acknowledge the First Applicant's reference to administrative law and note that even with the assistance of the Supreme Court Law Library staff the actual references referred to by the Applicant were unable to be found other than in a footnote in an article titled "Estoppel by Representation in Administrative Law" by Joshua Thomson published in 1998 in the Federal Law Review Vol 26. The relevant paragraph in that 1998 article reads as follows: "Statutory discretions or powers are of two types. Some powers are only exercisable once. After one exercise the power is exhausted and the administrative body is functus officio. An attempt to exercise the power a second time is ultra vires because the power no longer exists. Alternatively, a statutory discretion may be exercisable from time to time. It is a matter of construction to determine the classification of any given power."
19. I have read the rest of the 1998 article and am satisfied that in these proceedings the statutory power or discretion exercisable by the Respondent is of the second type referred to in the 1998 article, namely a statutory discretion pursuant to the EPA Act that may be exercisable from time to time. I am not satisfied that the facts of these proceedings give rise to estoppel as submitted by the First Applicant. My finding is supported by the well-known fettering of power doctrine as set out in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54: "There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings".
20. Further, in 2003, three members of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 affirmed that there is no doctrine of administrative estoppel in Australia, meaning that an estoppel cannot give rise to substantive rights (Thomson Reuters, Estoppel Failure to Exercise Discretion, Update 295 page 1146, at 2.4.3200)
21. I come back to estoppel for the DCO Appeal below, however, in relation to the DA Appeal I conclude that the Respondent is not estopped by virtue of any prior representation, and I am satisfied in any event, that the Applicant has been afforded procedural fairness in the hearing of all three proceedings over 3 days including an on site inspection and the admission of numerous documents tendered by the Applicants.
22. The First Applicant submits that the Dividing Fences Act is relevant and applicable to these proceedings because there is reference to the Dividing Fences Act in the Consent and that the area being subject to the dividing fence is above the red line. Condition 4(b) of the Consent provides as follows: "Elevations of the common boundary retaining wall that is not subject to the New South Wales Dividing Fences Act being below the red line on the two photographs attached."
23. I have found that the Codes SEPP does not apply to the Wall for a number of reasons. The most relevant reason is that the Wall is constructed within an R2 low density residential zone on a common boundary of a lot that contains a heritage item (namely, 113 Northwood Road, Northwood heritage item number I304, Heritage Map and Sch 5 LCLEP, Ex 1 folio 376 and 428) and this is a disqualifying feature pursuant to cl 2.33 of the Codes SEPP.
24. I accept the Respondent's submission (Transcript 16 November 2022 page 94 at [15]) and find that the Dividing Fences Act is for apportioning costs between neighbours for the erection of a dividing fence in accordance with the provisions of that Act however that Act is appropriately silent in regards to any approvals that are required or otherwise under the planning regime and as such the Dividing Fences Act cannot be relied on in these proceedings as the Applicants seek to do. The decision of Larney v Johannson [2013] NSWCA 409 at [64] confirms the role of the Dividing Fences Act as follows: "The Act is not concerned with resolving disputes between adjoining owners as to whether one adjoining owner should be permitted to erect a dividing fence on the land of that adjoining owner contrary to the wishes of the other adjoining owner. There is nothing in the Act to prevent an adjoining owner from carrying out fencing work, within the meaning of the Act, on the land of that adjoining owner. There may be requirement under the Local Government Act 1993 for approval to be given by a local council for erection of a dividing fence. However, that has nothing to do with the Act."
25. The evidence supports my finding that there is not sufficient information to assess the Proposed Development. (Transcript 16 November 2022 page 66 at [30] and page 75 at [20] and [40]).
26. The status of the landscape plan LP01 at folio 160A of Ex 1 is that it is part of the modified CC and the exclusion is the block wall fence along the northern allotment boundary. Therefore, this construction certificate expressly excludes any part of that block wall on that northern boundary, whether it is shown in a plan or drawing or whether it is shown in the Landscape Plan does not matter as the Wall has been expressly excluded in the construction certificates. There can be no question that there simply is no approval for the fence or the wall above the red line as depicted in the Consent.
27. The plans attached to the original CC (Tab 18, Ex 1) are significantly different to what was eventually constructed and eventually approved by the Consent. It is very clear that that plan that is attached to the CC and is stamped as part of the CC, shows no boundary retaining wall along that northern boundary. I accept the fact that a boundary retaining wall was constructed and its use has been approved up to the red line shown in the Consent on folios 21 and 22 of Ex 1 as per Fig 2.
28. The use of the Wall is approved to the red line, construction occurred above the red line. The Applicants seek a Building Information Certificate and development consent for works constructed above the red line and for further works. The Applicants rely on the photos in Ex M as to reasons for the construction of the retaining wall, namely that these photos show the state of the Site before construction (Transcript 16 November 2022, page 104). The reasons for the construction of the Wall up to the red line are not relevant to these proceedings. The Applicants have stated that the purpose of the construction of the Wall above the red line is not for retaining, but for privacy.
29. In relation to the works that are proposed, the lack of information cannot be dealt with by way of condition because there are fundamental matters of information that are lacking, for example, existing ground levels, finished levels, the AHD that is required at the time of assessment. These matters cannot be deferred to a later point in time because it's necessary to assess it at this time (Weal v Bathurst City Council [2000] 111 LGERA 181;[2000] NSWCA 88 at [94] - [95].)
30. I conclude that the DA Appeal should be dismissed for the reason that the Proposed Development is uncertain and unclear as a result of there being insufficient information to make a proper assessment.
31. I conclude that there is insufficient detail and information to assess and determine the DA Appeal and to grant consent would result in approving an uncertain development. The DA Appeal should be dismissed for this reason.
32. As I have concluded that both the DA Appeal (at [104]) and the BIC Appeal should be dismissed (at [73]) a merit assessment is not necessary however, as the Applicants were not legally represented, I will briefly consider the merit contentions and the evidence before the Court below.

Merit Assessment of the DA Appeal & BIC Appeal

1. The merit contentions can be grouped into adverse impact on views and amenity and a consideration of the Applicant's claim for the Wall to provide privacy. The Respondent's merit contentions are as follows: 1. DCO SOFAC (Ex 2) Contention 2; 2. DA SOFAC (Ex 3) Contention 2 (Amenity) Contention 3 (Views), Contention 4 (Height Unacceptable), Contention 5 (Public Interest); and 3. BIC SOFAC (Ex 4) Contention 2 (Amenity), Contention 3 (views), contention 4 (Unacceptable Height), Contention 5 (Public Interest)
2. In order to undertake the merit assessment, I have considered the video viewed in court a number of times (Ex H). I have also read the document tendered by the Applicants prepared by Mr Colman and Mr Shankar filed 21 September 2022 (Ex L) and considered its contents to the extent that they may be relevant to the merit assessment of the Development Application. I have also had regard to the Applicants' evidence contained in Ex M.
3. A structure such as a masonry wall may be acceptable within the foreshore setback line, subject to the LCDCP including: 1. compliance with the criteria that "design of the structure being in character with the locality" and 2. the "height of the structure being as close as practicable to the ground level" and 3. "the use of colours and materials which blend with existing foreshore vegetation and landscape elements" and 4. "minimisation of visual clutter" (Ex 1, from folio 440)

Impact on Views

1. There are view sharing objectives and controls contained in Part B4 of the LDCP and the now repealed Chapter 10 Sydney Harbour Catchment of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). On 21 November 2022, Chapters 8 to 11 of the BC SEPP have been consolidated into a new Chapter 6 of the BC SEPP which includes the new provision at s 6.28(2) which reads as follows: (2) Development consent must not be granted to development in the Foreshores and Waterways Area unless the consent authority is satisfied of the following - (a) […] (e) the unique visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be enhanced, protected or maintained, including views and vistas to and from - (i) the Foreshores and Waterways Area, and (ii) public places, landmarks and heritage items.
2. There are impacts on views from the staircase within the access handle of 113 Northwood Road. The main views of Woodford Bay from the staircase within the premises of 113 Northwood Road are across the Site. That staircase provides access to the foreshore of Woodford Bay.
3. It is unequivocal that in my opinion that the Wall as proposed does not maintain, protect, or enhance views to and from Sydney Harbour. Nor does the Wall as proposed, minimise any adverse impacts on views and vistas to and from public places. The Wall as proposed is not kept low and does not preserve or fairly share water views for foreshore residents.
4. I find that the Wall as constructed above the red line and the Proposed Development will not maintain or protect the existing views to Sydney Harbour (Woodford Bay and the Lane Cove River) and will do nothing to enhance these views. The Proposed Development will not minimise the impact on these views but will instead reduce the views (DCO SOFAC, Ex 2 Contention 2, particular (b))
5. Having had the benefit of being on Site, I find that the Wall as constructed above the red line and the Proposed Development creates a feeling of enclosure from the neighbour's stairs impacting adversely on their amenity.(DCO SOFAC, Ex 2 Contention 2, particular (c))
6. The experts agree that the development as proposed, would interfere with partial views from the water to the private open spaces located on 111A Northwood Road and 113 Northwood Road, (page 15 of the JER).
7. I find that there will be unacceptable impact on views from Woodford Bay as evidenced by the video and confirmed by the evidence of Mr Colman. Mr Coleman's evidence is as follows: 1. The Wall is visible from the water (Transcript 16 November 2022 page 24 at [10]). 2. "I would be hard pressed to put my finger on other walls of a similar scale to that one" (Transcript 16 November 2022 page 24 at [17]) 3. "One cannot identify clearly from the water where the precise boundaries of properties are." (Transcript 16 November 2022 page 24 at [40]) Because they aren't defined by boundary walls (Transcript 16 November 2022 page 25 at [1]) 4. Mr Colman cannot recall seeing a similar boundary wall along the foreshore (Transcript 16 November 2022 page 25 at [11]) 5. In relation to Objective 5.1(a) of Section B5 Foreshore Development of SHF DCP, the Proposed Development to increase the height of the Wall does not minimise the impact on the foreshore "the impact from some viewpoints would not be minimised, from other viewpoints it would be impossible to discern." (Transcript 16 November 2022 page 27 at [1]) 6. You can't see through a solid wall ((Transcript 16 November 2022 page 28 at [14]). Mr Colman also accepted that the existing stringer balustrade does not obscure views because of the self-evident rock outcrop on 113 and 111A behind the wall. 7. In relation to his view expressed on page 16 in the JER (Ex 5) that the proposed works were "the only opportunity to construct a privacy wall which will have no adverse impacts on both the natural and built environments", Mr Colman agrees that the proposal is for three to four course of further masonry and an additional steel and timber frame structure above it and that this method is not the only approach or opportunity to construct a privacy wall that will have no adverse impacts.
8. I conclude that on balance the DA Appeal and BIC Appeal should be refused after a merit assessment and conclude that there are unacceptable impacts on views to and from the water. In addition, 1. The Proposed Development does not comply with objectives and controls of the LCDP Part 5.1, general building design and style for structures within 30m of the mean high water mark and further controls in relation to building within the foreshore setback in relation to structures: 2. The finished height of the fence will be too high. Mr Shankar gave an approximation of approximately 2.5 to 3 metres (pages 14 and 36 of the JER) . The Wall will have excessive bulk and scale which will cause the works to be visually dominant (pages 8 and 36 of the JER) and there was extensive evidence in relation to the visual dominance of the works.

Privacy

1. I now come back to the purpose of the Wall, as explained by the Applicants, namely to provide privacy.
2. There are no other boundary fences in the vicinity of the Site.
3. To the extent that privacy is raised in both the DA and the BIC appeals as demonstrated by the site visit and extensively from a review of the Northern Elevation (Ex R) and the evidence heard, neither the Proposed Development nor the BIC works extend to in order to remedy any purported privacy issue that has been raised at section 7.2 of the Statement of Environmental Effects filed with the DA Appeal Class 1 and this is also dealt with at page 30 of the JER.
4. Mr Colman in cross examination refers to the efforts made by the Applicants to create a lovely private open space. I heard evidence that the use of the neighbouring stairs in terms of its impact on privacy to the Applicants' yard relates to its transient use, namely people going down the stairs towards the waterway.
5. There is extensive evidence that there is a mutual extent of overlooking along the foreshore between the backyards which front onto the water and that it is an intended consequence of the controls which seek to ensure that the existing visual character of the Sydney Harbour Foreshore remain and that buildings do not dominate and cascade down the topographical slope towards the harbour.
6. I find that the Wall is uncharacteristic and this will be further exacerbated by the Proposed Development because it is a feature that is not seen anywhere else and runs perpendicular to the foreshore.
7. Although the Development Application, the BIC SOFAC and the JER goes beyond these matters, these impacts are sufficient to refuse the Development Application on merits grounds and to refuse the Building Information Certificate on notional or hypothetical merit grounds.
8. In conclusion, it is my opinion that development consent should not be granted for the Proposed Development, and I do not direct the council to issue a building information certificate on both merit and insufficient information grounds

DCO Appeal findings and conclusions

1. The Court may revoke the Order, modify the Order, substitute the Order with any other order, find that the Order is sufficiently complied with, make such order with respect to compliance or with respect to the Order as the Court thinks fit (s 8.18 EPA Act).
2. The Respondent submits that there should be no change to the Order if the Building Information Certificate cannot be issued and if development consent cannot be granted for the Proposed Development.
3. I have found that the status of the landscape plan LP01, is such that it does not achieve what the Applicants believe. I accept that the belief may be a genuine belief however, it is an erroneous belief and the Applicants would have benefitted from seeking and obtaining legal advice.
4. In relation to the Applicant's contention or submission that there is some kind of estoppel or that there is some kind of behaviour that the council can be said to resile from, I have considered the correspondence quoted in the Applicants' Statement of Facts and Contentions in Reply.
5. I have already made observation as to the status of any misplaced reliance by the First Applicant on vague references by Mr Shankar. It may be that the Applicants have misunderstood or misconstrued what had been said to them.
6. The complete answer to the estoppel claim is set out in the decision of Pepper J in Casa v City of Ryde Council [2009] NSWLEC 212 (Casa) at par [111] and [114]. I note that Pepper J provides at [109] that "In Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174 Biscoe J summarised the position in relation to estoppel in administrative decision-making in Australia as "it having been held in the High Court that no doctrine of administrative estoppel has emerged in Australia" (at [92] citing Annetts v McCann (1990) 179 CLR 596 at 605; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [69])."
7. Then at [111] Pepper J includes the comprehensive review by Pain J of the authorities relating to estoppel in a planning context in Council of City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited (2008) 158 LGERA 67 (at [64]-[67] and [70]-[72]). It is well settled that a statutory authority should not generally be estopped by their conduct from carrying out their public functions. I reject the Applicant's estoppel claim for the reasons set out throughout this judgment.
8. To conclude, the Order should remain operative because it states that no further work should happen until and unless an approval has been obtained. The Applicants have the benefit of the Consent in the terms of that Consent as I have found in this judgment and not as interpreted by the Applicant.

In respect of Proceedings 2022/197002:

1. The Court orders that: 1. The appeal is dismissed. 2. Development application No DA40/2022 seeking development consent for the extension of an existing fence is determined by refusal of consent.

In respect of Proceedings 2022/204518:

1. The Court orders that: 1. The appeal is dismissed. 2. Application for Building Information Certificate No. BIC-6391 is determined by refusal to issue a Building Information Certificate.

In respect of Proceedings 2022/50716:

1. The Court orders that: 1. The appeal is dismissed.

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