Doyle v Hunters Hill Council

[2019] NSWLEC 1620

Land and Environment Court

New South Wales

Medium Neutral Citation:

Doyle v Hunters Hill Council [2019] NSWLEC 1620

Hearing dates:

11 to 12 November 2019

Date of orders:

17 December 2019

Decision date:

17 December 2019

Jurisdiction:

Class 1

Before:

Bish C

Decision:

BIC Appeal 2019/78763

 

(1) The appeal is dismissed.
(2) Building Information Certificate application no. 2018/10 which seeks to regularise unauthorised works that include a rear pergola, rear WC/laundry, front porch/verandah, and front portico on Lot 16 DP 224608, also known as 3 Joly Parade Hunters Hill is refused.
(3) The exhibits, except for Exhibits J, H, L and F are returned.

 

DA Appeal 2019/110343

 (4) The appeal is dismissed.
(5) Development Application (DA) 2018/1002 which seeks to demolition and reconstruction of an existing driveway, path and (pergola) wall, and use of unauthorised works on Lot 16 DP 224608, also known as 3 Joly Parade Hunters Hill is refused.
(6) The exhibits, except for Exhibit G are returned.

Catchwords:

DEVELOPMENT APPLICATION – new driveway and path in front setback – new pergola wall – use of unauthorised works – consistency with character and streetscape – drainage - insufficiency of information

  BUILDING INFORMATION CERTIFICATE – unauthorised works – bulk and scale – character – visual amenity – drainage - insufficiency of information

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Hunters Hill Local Environmental Plan 2012

Cases Cited:

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Texts Cited:

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

Lance Doyle (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicants)
J Cole (Solicitor) (Respondent)

Solicitors:
D G Briggs & Associates (Applicants)
HWL Ebsworth (Respondent)

File Number(s):

2019/78763 and 2019/110343

Publication restriction:

No

Judgment

1. COMMISSIONER: The Development Application (DA) 2018/1002 appeal (2019/110343) is against refusal by Hunters Hill Council (hereafter the Council), which relates to demolition and reconstruction of an existing driveway, path and (pergola) wall, and use of unauthorised works on Lot 16 DP 224608, also known as 3 Joly Parade Hunters Hill (hereafter the site). The relevant unauthorised works are described below in a separate appeal as considered here by the Court.

2. Also, before the Court, is the appeal (2019/78763), which relates to the deemed refused Building Information Certificate (BIC) application 2018/2010 to regularise unauthorised works on the site which include: a rear pergola; rear WC/laundry; front porch/verandah; and front portico.

3. The two appeals are interrelated in their contentions, and therefore considered together, although separately determined.

Background

BIC Appeal 2019/78763

4. The BIC (application 2018/2010), the subject of this appeal, was lodged with Council on 21 December 2018. The applicant was notified of Council’s intention to refuse the BIC application on 27 February 2019, if further (specified) information and works were not undertaken, pursuant to s 6.26(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). To date, this request for information and works remains unfulfilled.

5. The applicant filed a Class 1 appeal with the Land and Environment Court (the Court) against the deemed refusal of the BIC application on 12 March 2019, pursuant to s 8.25(1)(b) of the EPA Act.

6. The BIC appeal application, including orders sought by the applicant and the supporting plans, are provided in Exhibits H and F, respectively. The BIC (and DA) appeal(s) also rely on a survey plan, dated 1 December 2016, and a sketch plan, dated 12 October 2017, provided in Exhibit L.

7. Following expert evidence during the hearing, the applicant sought to amend and replace the orders in the BIC (and DA) appeal/s, as described in Exhibit J. In particular, these amended orders identify the list of information and statement (of certification) the applicant seeks to provide for the Court to direct Council to issue the BIC. The difference between the list of information and certifications agreed to by the applicant in the amended orders and those directed by Council (in letter dated 27 February 2018) is the orders identify a more extensive list of information/certification that is required.

DA Appeal 2019/110343

8. The DA (2018/1002) under appeal was lodged with Council on 5 January 2018.

9. On 27 February 2018, Council notified the applicant that it would not support the DA, although did not formally refuse the DA, until 28 March 2019, pursuant to s 8.11(2) of the EPA Act.

10. The Class 1 appeal was lodged with the Court on 9 April 2019, pursuant to s 8.7 of the EPA Act. The application for this Class 1 appeal of the DA is made based on the date of refusal and consistent with s 8.10(1) of the EPA Act.

11. The DA appeal (application) and supporting plans are provided in Exhibits G and E, respectively. At the start of the hearing, the applicant formally sought to amend the appeal application for the DA, which was not objected to by the respondent. The amended orders sought for the DA appeal now seek the following: demolition and construction of a rear alfresco wall; use of (authorised) works associated with the front portico, front porch, rear alfresco area (including alfresco roof and retaining walls), rear laundry and toilet (WC); and replacement (by demolition), with new construction of existing driveway (and path). The elements shown in brackets above, are not specifically identified in the appeal orders sought by the applicant, although they are addressed by the experts in evidence and considered by the Court as integral to the DA under appeal and are therefore identified here for completeness. The Court grants leave to rely on the amended Class 1 DA appeal application that forms Exhibit G, which was filed with Court on 12 November 2019.

12. Further to this, the applicant seeks to amend the orders for the DA. The Court grants leave to rely on these further amended orders, as provided in Exhibit J. The effect of the new orders is to provide more detail on the proposed development, by including the works required on drainage.

Conciliation and hearing procedure

13. On 11 November 2019, the Court ordered a conciliation between the parties, pursuant to ss 34 and 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act), for the BIC and DA appeals, respectively. This commenced as a site view. As the parties were unable to reach an agreement, pursuant to ss 34(4)(b) and 34AA(2)(b)(i) of the Court Act, the conciliation was terminated by agreement of the parties, and the hearing for both appeals was held forthwith.

14. A resident supporter from an adjoining property also spoke at the conciliation conference, and their previous written submission is tendered into evidence for the hearing by agreement of the parties (Exhibit G).

15. In hearing of the appeals, the parties agreed that the Court could rely on observations made during the site inspection in the conciliation.

16. Prior to the hearing of the appeals, the applicant made amendments to the DA and BIC plans, for which the Court grants leave to rely on. These documents were tendered over the course of the hearing, and the respondent made no objection to these plans as tendered, after having reviewed the changes made.

17. Further to the plan and appeal application amendments, together with the draft conditions (Exhibit 5 for the respondent and Exhibit K for the applicant), and evidence provided by the experts in their expert report (Exhibit 4), the parties agree that the following contentions as specified in the Amended Statement of Facts and Contentions (SoFC tendered as Exhibit 1 for the BIC and Exhibit 2 for the DA) remain for the Court’s consideration to grant consent to the DA and make orders in the BIC under appeal:

1. inconsistency with existing and desired future character of Hunters Hill,

2. inadequacies and inaccuracies in plans including showing location and details of unauthorised works,

3. excessive excavation (for driveway) and impact to landscaping,

4. visual impact of rear pergola structure and front portico, and

5. insufficient information on certification, location and function of drainage, dimension of unauthorised works and proposed new works.

18. The parties agree that based on the amended plans and the agreed draft conditions of consent for the BIC and DA under appeal, the issues relating to landscaped area and height are addressed to their satisfaction, and not pressed.

The Site

19. The site is an irregular shape, fronting Jolly Parade for 32.93m, which forms the southern boundary. The total area of the site is 822m².

20. To the north, east and west, the site adjoins two/single storey detached residences, which form the dominant character of the zone. Currently on the site is a two storey brick dwelling with swimming pool.

21. The site has a cross fall towards the front (west and south), with a stormwater easement located in the western portion of the site. The site is located within the northern foreshore of Tarban Creek.

Relevant Planning Controls

22. The Court must be satisfied of the respective requirements of ss 4.13(1), 4.15 and 6.25 of the EPA Act to grant consent to the DA and to issue the BIC. The Court has power pursuant to ss 4.16(1) and 8.25(1) of the EPA Act, as follows:

4.16 Determination(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

8.25 Appeals with respect to building information certificates(cf previous s 149F)

(1) An applicant—

(a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

23. The site is located within the R2 low density residential zone, on lands subject to the Hunters Hill Local Environmental Plan 2012 (HHLEP). Pursuant to cl 2.3 of the HHLEP, the proposed development (in the DA) is permissible, and the following objectives of the zone are relevant for the Courts consideration:

Zone R2   Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.

• To provide for high levels of amenity that are consistent with a low density residential environment.

24. Also of relevance for the Courts consideration with regards to the drainage and earthwork contentions, are cll 6.2 and 6.3 of the HHLEP, as follows:

6.2 Earthworks

(1) The objective of this clause is to ensure that earthworks and associated groundwater dewatering for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks and associated groundwater dewatering unless—

(a) the earthworks and associated groundwater dewatering are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks and associated groundwater dewatering are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3) Before granting development consent for earthworks and associated groundwater dewatering (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Note. The National Parks and Wildlife Act 1974, particularly section 86, deals with harming Aboriginal objects.

6.3 Stormwater management

(1) The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters.

(2) This clause applies to all land in the following zones—

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential,

(c) Zone B1 Neighbourhood Centre,

(d) Zone B4 Mixed Use,

(e) Zone IN4 Working Waterfront.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

25. The Hunters Hill Development Control Plan 2013 (HHDCP) provides relevant controls for the Courts consideration, specifically those relating to character and (rear) setbacks, in sections 2.2.3, 2.2.4 and 3.3.3.

26. Consistency with the National Construction Code (NCC) and relevant Australian Standards (AS), particularly in relation to the unauthorised works is considered by the Court.

Evidence

27. The Court heard from the following planning experts: Mr Lance Doyle for the applicant; and Mr Mark Adamson for the respondent.

28. The Court also heard from the following experts on Building Code of Australia (BCA) issues: Mr Graham Scheffers for the applicant; and Mr Ben Tuszynski for the respondent.

29. The Court in consideration of the appeals relies on their joint expert report, tendered as Exhibit 4.

Whether the applicant has provided sufficient information

30. The Council contends that the DA and BIC appeals rely on insufficient and inaccurate information to support the relevant applications. Specifically, this contention relates to: inaccuracy of plans to show extent, location and dimensions of proposed and unauthorised works; lack of detail on the quality and integrity of the unauthorised works; and lack of relevant certification of unauthorised works.

31. The experts agree that the plans and supporting documents that form applications under appeal before the Court are, inconsistent and incomplete. They also agree that the lack of dimensions, work detail, and inaccuracies require attention as a jurisdictional requirement. They disagree however, whether these details can be dealt with by conditions of consent and/or orders of the Court.

32. The experts agree that the following information is missing for each of the appeals before the Court:

1. DA

1. Survey and site plan showing all existing structures including the unauthorised works and relationship to existing adjoining structures,

2. Landscape detail in the front setback, that may be impacted by the proposed drainage, embankments and pathway,

3. East-west driveway cross section with correct grade transition and which shows the relationship to (eastern) boundary, new path and battering of slope,

4. Details on the new driveway, including grade at the crossover to the top of kerb, and whether it satisfies the requirements of relevant Australian Standards for cross fall,

5. Relationship of the new path with steps leading to the existing front porch and existing hedge,

6. Actual design and proposed drainage for the new pergola wall, and

7. Stormwater and sewer drainage design, location and detail connecting pipework from the garage to existing network in street.

2. BIC

1. Survey and site plan showing all existing structures including the unauthorised works and relationship to existing adjoining structures,

2. Stormwater drainage detail behind the unauthorised works, specifically the retaining walls, and

3. Landscape detail along rear boundary and its relationship to the pergola and retaining walls.

33. The experts also agree that the following certifications and reference to relevant plans are missing:

1. Detail on structural certification for portico, pergola (roof, timber frame and slab), retaining walls (blockwork, footing and drainage), (slab and timber framing for) laundry and WC,

2. Vapour barrier (sub floor ventilation) beneath slab in laundry and WC;

3. Stormwater and sewer drainage works already including connecting laundry through garage,

4. Cabling and testing of smoke alarms in laundry,

5. Water proofing, termite treatment and glazing in laundry and WC, and

6. Roof drainage from laundry roof.

34. The applicant proposes to resolve the insufficient information contentions for both the DA and BIC appeals by way of consent conditions and orders of the Court, as provided in Exhibit 4 and J.

35. Mr Briggs, summarising his experts’ evidence, contends that there is no safety issue with respect to the unauthorised works that would require them to be demolished, and the required certifications are capable of being resolved by orders of the Court.

36. Mr Cole argues that the Court has sufficient evidence from the experts to determine that the DA and BIC applications should be refused, and that the Courts judgement will provide the justification for the refusal of the BIC to satisfy s 6.26(5) of the EPA Act. Safety of the authorised works cannot be accepted until the certification for the structures already built (and not approved) has been verified by the relevant experts.

37. The respondents experts contend that there is insufficient information to uphold the appeal for the DA, as the Court cannot be satisfied of the requirements of cll 6.2 and 6.3(3) of the HHLEP, as it relates to excavation (battering of slope) and stormwater management in front setback.

Findings

38. The Court, by assessing the available evidence for the DA and BIC appeals, must be satisfied of the jurisdictional requirements to grant consent to the DA and order the issue of a BIC, as sought by the applicant. The Court must also make a merit assessment of the facts before it when considering the appeals. I note that the burden of proof lies with the applicant to satisfy the Court by provision of the relevant and sufficient information to make its assessment.

BIC

39. The experts agree, and I concur that there is currently insufficient information provided in the BIC application that would satisfy the Court and the Council to issue a BIC as sought by the applicant. The Court must make a determination on the issue of the BIC for the unauthorised works, pursuant to s 6.26(2) of the EPA Act.

39. The absence of relevant and appropriate certifications for the unauthorised works is accepted by all the experts who gave evidence in the hearing, and it is also agreed by those experts that the nominated certifications are a requirement for the issue of a BIC. I also accept that Council has previously asked and not received the relevant certification and information in its letter dated 27 February 2018.

40. I am not satisfied that the orders suggested by the applicant for the provision of the relevant certifications and information would be sufficient to issue a BIC. The agreed list of required information and certification is extensive (as described in Exhibit 4), which the experts accept as necessary to satisfy jurisdictional requirements.

41. The fact that there are at least 17 separate actions required by way of the proposed orders, to allow a person of relevant qualification to issue a ‘statement’ that certifies the (unauthorised) work and which would then enable the issue of a BIC, suggests that the BIC application before the Court, even despite being continuously amended during proceedings, is not in a form that warrants approval.

42. There is too much uncertainty in the approach proposed by the applicant for the Court to be satisfied that the BIC application in its current form can be issued. There is nothing in the proposed orders (Exhibit 4) that recognises that once the ‘statement’ of required certifications has been filed, that the consent authority (Council/Court) would be sufficiently satisfied with the quality of the unauthorised works to issue the BIC, and not require the works to be demolished.

43. I am therefore not satisfied that the approach proposed by the applicant is consistent with s 6.25(1)(a) of the EPA Act, as follows:

6.25 Issue, nature and effect of building information certificate (cf previous ss 149D, 149E)

(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

…

45. I also find that the approach adopted by the applicant, to seek certifications on the unauthorised works as part of an appeal, is contrary to the requirements of s 6.26(2) of the EPA Act. The information and certification that is sought in Exhibit 4, has previously been requested of the applicant by Council in its reasonable efforts to make a proper determination to issue the BIC. The applicant has, prior to and has demonstrated during the hearing, an understanding of what is required to satisfy its requirements to issue a BIC. And yet, has come to Court without any of the relevant information to allow the Court to be informed in its decision making.

46. Therefore, by way of this judgement, the Court justifies its rationale to refuse the issue of the BIC, pursuant to s 6.26(4) and (5) of the EPA Act. I find that the BIC appeal should be refused and that the orders proposed by the applicant cannot be made by the Court because there is insufficient information on the quality, quantity or integrity of the unauthorised works that are the subject of the BIC. I am not satisfied that the proposed orders are capable of adequately addressing this deficiency.

DA

47. The DA plans before the Court for consideration of this appeal are specifically missing the following: the location and dimensions of the new pergola wall; any earthworks or grades to the kerb in alignment of the new driveway and path; location and design of drainage/sewer design; and stairs and landscaping associated with the new pathway. These details are essential to the function of the proposed (and existing) development, and I find the insufficient information cannot be addressed by conditions of consent, as they give rise to uncertainty.

48. There is no dispute between the experts, that there is insufficient information to satisfy the Court on the stormwater/sewer management and structural requirements for unauthorised and proposed works. The applicant proposes to deal with this deficiency by way of conditions of consent and orders of the Court.

49. The absence of detail creates uncertainty to the DA. The approach adopted by the applicant to defer detail to later is inconsistent with the findings of Justices Priestly, Clarke and Meagher in Mison v Randwick Municipal Council (1991) 23 NSWLR 734.They determined that there must certainty in the detail and conditions of consent attached to a DA, which is critical to its success.

50. I am not satisfied that the missing detail can appropriately be dealt with in this manner, as this results in significant critical elements of the application being uncertain in design, form and impact. There is uncertainty around what the proposed stormwater and sewer drainage, and earthworks are proposed for the DA, and the potential to impact on landscaping in the front setback. There is additional uncertainty around whether the unauthorised works can be used as intended, due to lack of detail on their structural integrity or ability to function, such as the drainage.

51. I find that due to the lack of sufficient, accurate and relevant information to assess the proposed development, as described in the DA under appeal, the requirements of cl 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) are not satisfied for the granting of the DA:

50 How must a development application be made?(cf clause 46A of EP&A Regulation 1994)

(1) A development application—

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b) if the consent authority so requires, must be in the form approved by that authority, and

(c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and

(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.

52. Specifically, the lack of clarity and inaccuracies in the plans that support the proposed development, and reliance on conditions of consent to address these deficiencies, together with the uncertainty of the (use of) unauthorised works, leads me to consider that the DA under appeal is inadequate and therefore cannot be granted consent.

53. The architectural and site/survey plans relied on in Exhibits E, G and L are inaccurate and inconsistent. They do not show the (existing) extension to the new porch, the laundry/WC, or the location of the building/structures adjoining to the north of the site. This information is required to assess the DA, pursuant to Schedule 1, Part 1, cll 2(2) and 2(3) of the EPA Reg.

54. There is insufficient information before the Court to determine whether the proposed development complies with cl 6.3 of the HHLEP. In addition, cl 6.2 is not satisfied due to the lack of detail on the proposed excavation for the new driveway construction. Like Council, I am unable to conclude on the evidence before me, whether there is an effect from the development in its entirety that would adversely impact the down-gradient properties or streetscape. On this basis, the (DA) application should be refused.

Whether the proposed development and unauthorised works are consistent with the existing and desired future character of the area?

55. The Council contends that the existing unauthorised works that relate to the rear pergola and front portico are inconsistent with the existing and desired future character of Hunters Hill.

56. The experts agree that the hedge of planting along the front fence of the site has the effect of obscuring the columns of the front portico from the streetscape, although this hedge is of insufficient height to obscure the roof structure of the portico. They also agree that the view of the portico structure is sufficiently obscured from the reserve across Jolly Parade that adjoins Tarban Creek.

57. The experts concur that a reduction in the height of the portico roof form and matching the colour to the previous (demolished) porch structure/existing dwelling could reduce any perceived visual impact from the street of this structure.

58. There was however a significant difference in their expert opinion on the visual effect of the (front) portico structure, and its consistency with existing/desired future character, when focused primarily on the roof form of the Portico.

59. Mr Adamson explained that the (front) portico structure appears out of character with the local area. He describes the existing architectural character of the area as having pitched gable roofs, verandahs and a small window to wall proportion.

60. He considers the (front) portico relies heavily and inappropriately on the hedge to reduce its visual impact, and has the effect of appearing disproportionate to the existing dwelling. The roof structure of the portico is disproportionately thick and adds to the bulk of the structure.

61. Mr Doyle describes the Hunters Hill area as having no defined architectural character, with disparate designs found across the locality. He agrees that the front portico on the site does not seek to mimic the existing dwelling, however this does not result in it being inconsistent with the architecture for the area. He states that the portico does not rely on the hedge for screening. Mr Doyle considers any changes to the roof structure would result in a distorted structure, and would be impractical and expensive to replace.

62. The experts agree that, with regards to the rear pergola, matching the existing colour structure and removal of the end parapet elements would reduce any potential visual impact from adjoining residences. The experts also agree that the removal of the existing (unauthorised) wall of the pergola, located on the northern boundary, is appropriate. The (new) pergola wall will be constructed in its existing location, although of fire rated material to comply with BCA requirements. The BCA experts agree that a new wall for the pergola should be fire rated to a level (FRL) of 60/60/60, and that the conditions of consent are capable to satisfy these requirements.

63. The Court heard from the adjoining resident. He does not object to the new pergola and would not object to a new full height wall for the pergola along the boundary, as it provides acoustic and privacy to his rear yard with a swimming pool.

64. No structural engineering detail is provided in the DA for the proposed new wall. The experts agree that drainage must be provided behind the new wall due to its proximity to the upgradient retaining wall and location in the catchment (within the stormwater easement).

65. The experts agree that due to the topographic differences between the site and adjoining property to the north, there are no amenity impacts, except potentially from drainage associated with the proposed new pergola wall.

66. The experts agree that the proposed new driveway/path and the (other) unauthorised works, including the retaining walls and front porch are consistent with the character of Hunters Hill. The experts also agree that the new driveway should be constructed to ensure that no retaining walls are required in the front setback, and that an earth embankment between the driveway and the (eastern) boundary should be landscaped. This is consistent with the front setback character of the area. The experts discussed the importance of landscaping in the front setback with the character of the area.

Findings

67. The issue for the Courts consideration is to determine whether the unauthorised works that relate to rear pergola and front portico are consistent with the existing and desired future character of Hunters Hill.

68. The Court must also consider whether the front portico and rear pergola have a visual impact to the streetscape and adjoining rear property, respectively.

69. I agree with the experts that the rear pergola in its existing location is not inconsistent with the character of the area, particularly with the agreed removal of the end parapet elements to be in line with the roof height at the boundary and change in colour.

70. The construction of a full height wall in line with the existing pergola structure and setback (approximately 0.35 m from the northern boundary) is not contested by the experts as being inconsistent with the objectives of the HHDCP. The proposed wall is a single storey structure occupying less than 33% of the rear boundary, and provided it has a wall height less than 2.4 m, satisfies cl 3.3.3 (rear setback).

71. The new wall is agreed to require a FRL of 60/60/60, consistent with the BCA requirements. Although the plans that the DA rely upon do not show the detail of the new pergola wall, the conditions of consent as agreed by the experts address this inconsistency to their and my satisfaction.

72. I find that the proposed development of the new (pergola) wall and the existing (unauthorised) structure for the rear pergola are consistent with the objectives of the R2 zone, as described in cl 2.3 of the HHLEP, and specifically consistent with the existing and desired, future character of the area, in addition to rear setback controls, as described in the HHDCP.

73. With respect to the front portico, I accept that the design is not to everyone’s taste and is a feature that draws the eye when entering the site. I agree with Mr Adamson that it relies on the existing hedge landscaping to reduce the bulk and scale of the structure from the streetscape. However, I find that the portico structure is not inconsistent with the eclectic character of Hunters Hill, although the colour of the entire structure should be darkened, similar to the shutters on existing dwelling on the site.

74. The experts agree, and I concur that the works the subject of the appeals do not impose on the foreshore area of Tarban Creek, and the site is not in a heritage conservation area. The scenic qualities of the area are not impacted by the proposed development or unauthorised works.

75. There are a number of other dwellings in the streetscape that have large front verandahs and porch structures of significant bulk and scale in the front setback, which creates the character of the area. I am satisfied that the unauthorised works do not impact the sites’ consistency with the ‘garden suburb’, provided however that no vegetation is removed and no retaining walls are constructed for the new driveway and path. This remains somewhat uncertain due to the lack of detail in the DA plans, and as previously noted, I agree that cll 6.2 and 6.3 of the HHLEP have not yet been satisfied.

76. I find that the proposed development, as described in the DA and unauthorised works in the BIC, generally satisfy the requirements of the HHDCP, as explained in sections 2.2.3 and 2.3.3. However, the lack of detailed and accurate information on landscaping, excavation and drainage works do not allow me sufficient certainty to be satisfied by what is proposed before the Court in consideration of these appeals.

Conclusion

BIC Appeal 2019/78763

77. The Court’s discretion to the issue of the building certificate is broad under s 8.25(3) of the EPA Act. The applicant is seeking the Court to direct the Council to issue a BIC, which I find is not the correct approach. Pursuant to s 8.25(3), the Court does have within its power to request further information and/or issue a BIC, as the applicant requires, should it see fit to do so.

78. There is no general principle in assessment as to whether a BIC should be issued that the Court should consider. There is no s 4.15 of the EPA Act equivalent assessment required for the BIC to be issued. However, the Court must be sufficiently satisfied that ‘there is no matter discernible by the exercise of reasonable care and skill’ to impede the issue of the BIC or that which would require further works/orders, pursuant to s 6.25(1).

79. The BIC appeal including all supporting plans/documents to the application has been assessed by the Court, which I find fails to satisfy the requirements of the relevant planning instruments, specifically ss 6.25 and 6.26 of the EPA Act.

80. The Court has power, pursuant to s 8.25(3) of the EPA Act to determine the BIC under appeal. The orders of the Court, made pursuant to s 8.25(3)(b), are to dismiss the BIC application.

DA Appeal 2019/110343

81. The proposed development has been assessed by the Court, based on the DA’s (amended) supporting plans, documents and conditions of consent fails to satisfy the requirements of the relevant planning instruments, in particular: the EPA Act, specifically ss 4.15(1)(a)(i) and (iv); cl 50(1)(a) of the EPA Reg; and cll 6.2 and 6.3 of the HHLEP.

82. For the reasons provided above in this judgement, namely consistency with relevant development standards and controls, I find that the proposed development is inconsistent with s 4.15(1) of the EPA Act. Therefore, pursuant to s 4.16(1)(b), the DA under appeal is refused.

Orders

83. Consequently, the orders of the Court are as follows:

BIC Appeal 2019/78763

1. The appeal is dismissed.

2. Building Information Certificate application no. 2018/10 which seeks to regularise unauthorised works that include a rear pergola, rear WC/laundry, front porch/verandah, and front portico on Lot 16 DP 224608, also known as 3 Joly Parade Hunters Hill is refused.

3. The exhibits, except for Exhibits J, H, L and F are returned.

DA Appeal 2019/110343

4. The appeal is dismissed.

5. Development Application (DA) 2018/1002 which seeks to demolition and reconstruction of an existing driveway, path and (pergola) wall, and use of unauthorised works on Lot 16 DP 224608, also known as 3 Joly Parade Hunters Hill is refused.

6. The exhibits, except for Exhibit G are returned.

…………………….

Sarah Bish

Commissioner of the Court

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Decision last updated: 18 December 2019