ES Engineering and Design v Bayside Council

[2021] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:

ES Engineering and Design v Bayside Council [2021] NSWLEC 1312

Hearing dates:

28-29 April 2021

Date of orders:

1 June 2021

Decision date:

01 June 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders are at [87].

Catchwords:

DEVELOPMENT APPLICATION – use of unauthorised works being a secondary dwelling and garage – consistency with character and context – visual privacy – bulk and scale – landscaping

BUILDING INFORMATION CERTIFICATE – regularise unauthorised works and propose new works – bulk and scale – character – visual amenity

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 4.16, 4.69, 6.25, 6.26, 8.7, 8.25

Rockdale Local Environmental Plan 2011, cl 2.3

Swimming Pools Act 1992

Texts Cited:

Building Code of Australia

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

ES Engineering and Design (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/56714 & 2020/56722

Publication restriction:

No

Judgment

1. COMMISSIONER: The Development Application (DA) 2019/43 appeal (2020/56714) is against refusal by Bayside Council (hereafter the Council), for the use of unauthorised works on Lot 2 DP 544171, also known as 53 Oliver Street, Bexley North (hereafter the site).

2. Also considered by the Court, is the appeal (2020/56722) against the refusal of a Building Information Certificate (BIC) application 2018/49 by Council, which seeks to regularise the unauthorised works (identified in the DA). The BIC, as amended seeks to install permeable paving along the driveway, timber bridge/decking, fence screening and a roller door, as described in Exhibit K.

3. The two appeals are interrelated in their contentions and consideration of the works not lawfully commenced. Therefore, the appeals are considered together, although separately determined below.

Background

DA Appeal 2020/56714

4. The DA was lodged with Council on 8 February 2019. Council notified residents of the DA and received one submission in objection.

5. After internal assessment, Council notified the applicant that it would not support the DA, which was formally refused on 22 August 2019.

6. The Class 1 appeal was lodged with the Court on 9 April 2020, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. The applicant was granted leave by the Court (Registrar) on 8 December 2020 to amend the DA, which the respondent did not oppose, to include the following:

• install fence screening*,

• install rainwater tanks beneath the driveway,

• remove structures associated with a (former) brick garage*,

• install a roller door*,

• amend driveway design and provide landscaping, and

• install rear dwelling wall planting*.

8. It is noted that the applicant sought leave to amend the DA for works that have already been undertaken (identified above with ‘*’), which are now not sought as part of the DA (Exhibit D). Therefore, these works are not considered by the Court in assessment of the DA under appeal. Where identified, these works, except the garage are considered in the appeal for the BIC application.

9. In response to clarification of the actual appeal sought, the applicant amended the site plan (Exhibit J) that supports the DA and which the appeal now relies upon, without opposition from the respondent. By agreement of the parties, Exhibit J was further amended to remove errors and filed with the Land and Environment Court (the Court) on 6 May 2021. It is noted however that the plan title details were further amended at the request of the Court after judgement was reserved, and without opposition of the respondent, due to an error in the title. The Court grants leave to rely on the Proposed Site Plan (Drawing Number 18159-03) by ES Engineering, dated 13 May 2021, Issue H. The renamed and amended plan replaces Exhibit J.

10. The use of works not lawfully commenced and proposed new works, which are the subject of the DA appeal, are described in Exhibit J, and include: use of a new granny flat and garage, with driveway access; reduction in an existing hardstand driveway, with landscaping; and installation of rainwater tanks beneath the retained driveway.

11. The term ‘not lawfully commenced uses’ is described in s 4.69 of the EPA Act, and relates to works already constructed without prior approval and considered in the application before the Court. The Court hereafter refers to these works, as ‘unauthorised’. This term is consistent with the description adopted during the proceedings and is a relevant reference in this judgement.

BIC Appeal 2020/56722

12. The BIC application was lodged with Council on 29 November 2018. Council notified residents and received three submissions in objection.

13. The applicant was advised of Council’s refusal of the BIC application on 2 September 2019, based on compliance issues for relevant works not being addressed to their satisfaction, pursuant to s 6.26(2) of the EPA Act.

14. The applicant filed a Class 1 appeal with the Court against the refusal of the BIC application on 21 February 2020, pursuant to s 8.25(1) of the EPA Act.

15. The BIC appeal relies on the supporting documents and plans provided in Exhibits B, E and K. The applicant seeks to include approval for the works described in the draft orders in Exhibit K. The respondent opposes these orders and relies on its own draft orders in Exhibit 12.

16. Exhibit K was amended during and after the hearing to remove errors and filed with the Court on 6 May 2021. During the hearing, the applicant further amended the plan that supports the BIC application and which the appeal now relies upon, without opposition from the respondent. The BIC application under appeal relates to the following works already constructed:

• new brick granny flat and garage (hereafter the outbuilding),

• fence screening,

• a roller door,

• permeable paving strips,

• timber bridge over pool, and

• garden bed along existing pool.

17. It is noted that the plan title details that the BIC application relies on were amended at the request of the Court, and without opposition of the respondent, due to an error in the title observed after judgement was reserved. The Court grants leave to rely on the Proposed Site Plan (Drawing Number 18159-01) by ES Engineering, dated 13 May 2021, Issue H. The renamed plan replaces Exhibit K.

Hearing procedure

18. The Court ordered a conciliation between the parties for the appeals, pursuant to s 34(1) of the Land and Environment Court Act 1979 (the Court Act), which was held before a different Commissioner on 22 October 2020, and subsequently terminated, pursuant to s 34(4).

19. The amended plans, documents, supporting the amended applications under appeal and the Amended Statement of Facts and Contentions (SoFC, tendered as Exhibit 1 for the DA and Exhibit 2 for the BIC), refer interchangeably to the ‘unauthorised’ building, as a granny flat, secondary dwelling and outbuilding. The Court adopts the term ‘outbuilding’ in reference to the entire unauthorised building, which is the subject of the appeal, except where it is necessary to distinguish the different elements of the building either as the secondary dwelling, garage or driveway entry platform.

20. Based on the plan and application amendments, together with the draft conditions (Exhibit 6 for the respondent and Exhibit F for the applicant), and evidence provided in the expert reports (Exhibits 4 and 5), the respondent presses the following contentions for the Court’s consideration of the applications under appeal:

1. unacceptable built form and response to site context, resulting in an overdevelopment with adverse environmental impacts,

2. inconsistent with R2 zone objectives,

3. excessive elevation for the western portion of the driveway and northern portion of the outbuilding, that does not respond to existing topography,

4. insufficient trees,

5. visual impact (of the outbuilding) due to insufficient setbacks, excessive length and relative elevation of brick walls, specifically relating to the northern adjoining properties,

6. insufficient information in survey plan for levels on adjoining properties, and

7. unacceptable precedence.

21. It is agreed by the parties that based on the amended plans, evidence, and the agreed conditions of consent relating to the applications under appeal, the issues as originally contended, of permissibility, floor space ratio, stormwater disposal, construction over a sewer asset and parking/traffic, are resolved.

The Site

22. The site is a regular shape, fronting to Oliver Street for 16.76m, which forms the eastern boundary. The total area of the site is 714.5m^², and a depth of 42.67m.

23. To the north, east and west, of the site, are two/single storey detached residences, which form the dominant character of the surrounding area. Secondary dwellings and garages, although not typically adjoined, were observed by the Court in the rear portion of several lots within the streetscape.

24. Currently, on the site is a single storey brick dwelling towards the front of the lot, a swimming pool in the centre of the lot, and the outbuilding (under appeal) at the rear of the lot. Timber decking and fencing surrounds the swimming pool.

25. The site has a slope generally towards the north.

Relevant Planning Controls

26. The appeals relating to the outbuilding with its associated structures, are considered pursuant to s 4.69 of the EPA Act below:

4.69 Uses unlawfully commenced (cf previous s 109A)

(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except—

(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or

(b) the granting of development consent to that use.

(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.

27. The Court must have considered and be satisfied of the relevant requirements of ss 4.15 and 6.25 of the EPA Act to grant consent to the DA and to order the issue of the BIC, respectively. The Court has the power to determine the appeals, pursuant to ss 4.16(1) and 8.25(3) of the EPA Act, for the DA and BIC application, respectively.

28. Due to the proximity of the outbuilding and associated works (decking and fencing) to the existing swimming pool, the requirements of the Swimming Pools Act 1992 are relevant for the Court’s consideration with regards to installed fencing. The parties are satisfied, based on the certifications provided in Exhibit E, that the relevant requirements of this Act are addressed.

29. The site is located within the R2 low density residential zone, on lands subject to the Rockdale Local Environmental Plan 2011 (RLEP). Pursuant to cl 2.3 of the RLEP, the outbuilding and its associated structures are permissible with consent. For this zone, the following objectives are relevant for the Court’s consideration of the DA under appeal:

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 ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.

30. The parties agree that the relevant development standards of the RLEP are complied with for works considered by the DA under appeal.

31. The parties refer to the Rockdale Development Control Plan 2011 (RDCP), and specifically controls relating to water management, sloping land, site context, landscaping, side/rear setbacks, excavation, visual privacy, described in Sections 4.1.3, 4.1.6, 4.2, 4.3.1 and 4.4.5, respectively.

32. Consistency with the Building Code of Australia (BCA) is required in consideration of the works associated with the BIC application. The requirement for the BCA is described in s 1.4 of the EPA Act. The applicant relies on documents and certifications in Exhibit E to support the BIC application, which the parties agree satisfy the requirements of the BCA. The Court accepts these certifications in consideration of the BIC application.

Evidence

33. The Court heard from the following planning experts: Mr Scott Barwick for the applicant; and Ms Julia Hunt for the respondent. In consideration of the appeals, the parties rely on their joint expert report, tendered as Exhibit 5.

34. The Court accepts the written evidence of the traffic experts, provided in Exhibit 4. Oral evidence from these experts was not called on by the parties or the Court as the relevant contentions were resolved in joint conferencing.

Determination relating to the DA

35. The Council contends the bulk and scale of the outbuilding causes adverse visual impact to an adjoining property and does not relate to the context of the site, because it is elevated and located in close proximity to the rear and side boundaries. The focus of concern for Council primarily relates to the northern portion of the outbuilding, which contains the garage, and includes the elevated driveway entrance to the garage.

36. According to Council, the outbuilding does not minimise impact on the character or amenity of the area, and is therefore inconsistent with objective (3) of the R2 zone, provided in cl 2.3 of the RLEP, and described below:

To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.

37. As explained by Mr Seymour the location of the outbuilding is appropriate and reflects an increasing trend in the area to locate garages and secondary dwellings towards the rear of the lot, to maximise useable outdoor space for the residents of the primary dwelling. The applicant relies on several examples of other properties in the area, whereby Council has approved ‘similar’ structures in the rear of a lot (Exhibit G), although Messer’s Seymour and Barwick did concede that these developments do not include both secondary dwelling and a garage or are located at less than minimum setbacks.

38. The experts agree that when assessing the contextuality and setting, as established in objective (3) of the R2 zone, the objectives and controls of the RDCP are also relevant for the Court’s consideration.

39. The experts refer to Part 4.4.5 of the RDCP, and specifically objective (A) and control (2) to inform the assessment of impact to visual privacy amenity, as described below:

“Objective

A. To site and design buildings to ensure acoustic and visual privacy for occupants and neighbours

Controls

Visual Privacy

…

2. Balconies, terraces, rooftop recreation areas and the like should be located to minimise overlooking of an adjoining property’s open space or windows. Techniques such as recessing, screens or landscaping may be used to prevent direct views into habitable rooms or private open space of adjacent dwellings.”

40. The experts agree that acoustic privacy is not an issue of contention in these applications.

41. In assessing the design of the outbuilding, specifically its bulk and scale, the experts refer to objectives (D, E and F) and controls (6-8, 10, 12 and 14-15) in Part 5.1 of the RDCP, as described below:

“Objectives

…

D. To encourage innovative housing which is pleasant to live in, relates to the existing and future neighbourhood character, is responsive to the site and is environmentally sensitive.

E. To ensure orderly development of land on large sites and promote good economic use of land with a high standard of site layout and design.

F. To improve the range and quality of housing and residential environments which meet the diversity of peoples’ needs and community expectations about health, safety and amenity.

…

Building Design

6. Building design and architectural style is to interpret and respond to the positive character of the locality, including the dominant patterns, textures and compositions of buildings.

7. Building articulation must respond to environmental conditions such as orientation, noise, breezes, privacy and views, through the use of appropriate sun shading devices, noise barriers, privacy screens, and the careful location of balconies, terraces and loggias.

8. Large expanses of blank walls are to be avoided through the use of architectural design features, modelling and fenestration.

….

10. Building heights should be sympathetic to the natural land form and

topographical features of the site and to existing buildings in the

immediate vicinity.

..

12. Split level dwellings should be considered in situations where a two storey building will be out of character with adjoining and nearby properties. Alternatively, additional habitable space may be accommodated within the roof space.

..

14. Garages must be integrated with the overall design of the building in terms of height, form, materials, detailing and colour. They should not be a dominant feature of the building façade and detract from the streetscape.

15. Garages and carports are to be located a minimum distance of 300mm behind the front building line. The total width of the garage doors which address the street must be a maximum width of 6.3m or 40% of the site frontage width, whichever is lesser. Refer to the following diagram.”

42. The experts disagree as to whether the elevation of the outbuilding and its (elevated) driveway access, causes an adverse visual privacy impact, specifically to the adjoining northern property at 11A Park Street, or results in an incompatible bulk and scale in context of the area. It is noted a resident at 11A Park Street has raised similar concerns in their submission in objection to both applications.

43. In assessing the appeals, I rely on the most recent survey, dated 23 March 2017, provided in Exhibit E. This survey predates the construction of the outbuilding and demolition of the previous garage (not part of these appeals). The elevation of the ground surface is measured as a Reduced Level (RL) Above Height Datum (AHD).

44. The amended plans relied on for the appeals (Exhibit E, K and L) indicate that the outbuilding slab/floor has a RL of 38.59m AHD, and the driveway entry is at 38.61m AHD. The ground level between the slab/driveway and the fence remains at ‘natural’ ground level (i.e. preconstruction), thereby suspending the slab at the northern end of the outbuilding and the driveway. There is no elevation detail in the survey plan for the adjoining properties. However, based on the site view, I assess that the ground level on the other side of the fence is at close to, if not slightly below, the preconstructed level in the north-west corner on the site.

45. The experts agree that the slab of the outbuilding and the garage driveway entry are elevated at its maximum on the northern end of the structure, at between 0.7-0.9m above the ‘natural’ (preconstruction) ground level. The southern end of the outbuilding slab is cut into the ground, by approximately 0.38m and is not of concern to the experts, with regards to visual privacy or bulk/scale.

46. Mr Barwick explained that the cut and fill approach adopted to construct the slab, and the ultimate height of the slab/building was established to: reduce the need for cut in the southern portion of the slab; accommodate the extent and level of the existing pool, which is located close to the outbuilding; and to provide an even level slab across the length of the outbuilding.

47. He does not consider that a split slab to adjust for elevation differences across the site would have been feasible, due to the proximity of the pool. It was not therefore considered in the design of the outbuilding.

42. As shown in Exhibits E, L and K, the top of the outbuilding wall at the north-western boundary is at an RL of 41.26m AHD, is visible above the fence, which the experts agree, even with the fixed screening. The total height of the fence along the northern boundary is 2.43m, therefore is estimated to reach an RL of 40.46 to 40.62m. The top of the roof ridge of the outbuilding is at an RL of 41.8m AHD.

43. The experts disagree as to whether the wall height and building extent can be considered as dominating in the context of the area, due to an incompatible bulk and scale.

44. The experts agree that the provision of the privacy screen, attached to the top of the existing fence along the northern boundary, has mitigated, to some extent, adverse visual privacy impact to the adjoining property at 42 Oliver Street, and also agree that this screening does not address any potential visual impact to the resident at 11A Park Street.

45. I stood on the driveway at the entrance to the garage and had a direct view across the rear yard and into the rear windows of 42 Oliver Street, and could also see parts of the rear yard of 11A Park Street. The additional fence screening was of some assistance to obscure the view to the direct northern property, however is not to my mind an effective response to address the visual privacy concerns or perceived bulk and scale of the outbuilding. The visual privacy issues are directly related to the elevation of the slab above ground level at the northern portion of the site.

46. The experts agree that the outbuilding does not comply with the setback controls, described in Part 5.1 of the RDCP. The defined rear and side setback controls relevant to a secondary dwelling (outbuilding) on the site are established at a minimum of 0.9m. It is agreed by the experts that the outbuilding has side setbacks of 0.42m and 0.58-0.61m, along the northern and southern boundaries, respectively. The outbuilding has a rear setback of between 0.42-0.58m to the wall of the outbuilding.

47. I agree with Ms Hunt, that the elevation of the outbuilding slab above (natural) ground level, particularly along the northern boundary, together with the reduction in minimum side/rear setbacks, causes adverse visual privacy impact to adjoining residents, and does not relate to the context of the site/area, due to the outbuilding’s incompatible bulk and scale.

48. The effect of the outbuilding at this location and height causes the residents of the northern and western properties to have a view of long, blank and dominant brick walls that provide no visual relief. I accept that the western and southern neighbouring properties also have structures in their rear yards, which would obstruct their direct sightline of the extent of the blank walls, however none of these are as dominant or close to the boundary as what is presented on this site.

49. I also accept that the outbuilding in its current location does not cause any solar impact, however this is by dint of lot orientation rather than good design.

50. I am not satisfied that the screening placed at the top of the existing fence and the decorative façade plants on the northern boundary have any real effect to reduce the bulk or visual impact caused by the close proximity of the outbuilding and its elevation.

51. The close proximity of the outbuilding to the (north, west and south) boundaries and its elevation above the site’s natural and adjoining ground levels, provide the maximum benefit to the residents of the site, with little regard to potential impact to adjoining residents, context of the site, nor planning controls that inform the area’s character.

52. I accept that the location of the outbuilding and its elevation are sited to accommodate an existing pool. The applicant has however sought to maximise the utility of their site without compromise. A building containing both a secondary dwelling and a (double) garage at this location on the site, across almost the entire width of the lot is neither appropriate nor reasonable, considering the constraints of the site. The outbuilding in the context of the constraints of the site is an overdevelopment.

53. I observe there are no comparable secondary dwelling plus garage developments in the surrounding area, in both building length and proximity to the boundary that would suggest that the outbuilding as it is located on the site is responsive to its context or surroundings. From my observations and assessment, this development does not inform the context or character of the area.

54. The extensive length of the rear wall at 15.745m, and side walls at 5.7m, without articulation, presents as a dominant feature on and around the site. In terms of size and proximity to the boundary, the outbuilding is not consistent with the character of the area.

55. Individually, a secondary dwelling or a garage would be acceptable at the rear of the site, however because the applicant has sought both uses in the same building, this results in a building that is of excessive length, and has an elevation that is out of context for the area.

56. I find that objective A in Part 4.1.6 of the RDCP is not achieved because the fill at the northern end of the outbuilding slab has not been minimised to create a building form that relates to topography. In addition, I find that objectives B and A in Parts 4.1.6 and 4.4.5, respectively, are not achieved, because the outbuilding causes adverse visual amenity impact to the adjoining properties.

57. The outbuilding does not satisfy the relevant objectives for (R2) low density residential development, in Part 5.1 of the RDCP because: it is not responsive to the topography of the site or environmentally sensitive; does not present as an example of high standard of site layout and design in context of the site; and does not satisfy community expectations about protecting visual amenity.

58. With regards to the relevant R2 zone objective described in cl 2.3 of the RLEP, for the reasons described above, I find that the outbuilding is not consistent with the context or setting of the locality, and does not minimise any impact to character and amenity of the area. The outbuilding is out of character for the local area, causes adverse visual amenity impact, and due to its excessive elevation, contextually does not respond appropriately to the topography of the site.

59. Upon consideration of the evidence before me, I am not satisfied that the DA has addressed the relevant matters to protect amenity and character, as described in the RLEP and RDCP. Therefore, s 4.15(1)(a)(i) and (iii) of the EPA Act are not addressed sufficiently to grant consent to the DA.

60. I accept that the applicant, at a late stage in the hearing of the appeals, provided to the Court (Exhibit L) a possible design for a split roof form. However, the experts did not have sufficient opportunity in the hearing to address this conceptual change in any detail, and it is my opinion that this amended design does not address the issue relating to visual privacy and bulk/scale, due to the continued elevation of the slab at the northern portion of the outbuilding and the extensive length of brick wall at the sides and rear of the structure.

61. It is accepted that, as the outbuilding structure is already built, any modifications to the design of the outbuilding are not reasonable, nor proposed in the DA under appeal and before the Court. Therefore, I find that, based on the evidence tendered in the appeal, a part approval of the outbuilding, such as separating approval for use of the secondary dwelling from the garage, pursuant to s 4.16(4) of the EPA Act, is not appropriate.

62. I have not considered or determined the installation of the rainwater tanks or amended driveway design, which are also sought in this DA appeal, as I consider these works are a direct response and relate to the outbuilding, which I do not grant approval to use.

63. I find that for reasons explained above, and specifically based on the length of the outbuilding, which extends almost the entire width of the site, elevation of the driveway and the building dominance in the rear yard of the site causing adverse amenity impacts, the outbuilding is an overdevelopment, and is therefore not suitable for the site. I am not satisfied that s 4.15(1)(c) of the EPA Act is sufficiently addressed because the outbuilding is not suitable for this site. The DA should be refused.

Determination relating to the BIC application

70. The Court has the power to make a determination on the issue of the BIC application separate from the DA, which is also under appeal, pursuant to ss 6.25 and 8.25(3) of the EPA Act. Pursuant to s 8.25(3) of the EPA Act, the Court also has the power to alter the orders sought in the appeal for the BIC application, and to direct the Council to issue the BIC accordingly. And pursuant to s 6.26(1), the BIC may be issued for whole or part of a building.

71. There is no general or equivalent assessment principle to consider the BIC application under appeal, such as required to consent to the DA, pursuant to s 4.15 of the EPA Act. However, the Court must be sufficiently satisfied that ‘there is no matter discernible by the exercise of reasonable care and skill …’ to order the issue of the BIC, pursuant to s 6.25(1).

72. The experts agree, and I concur that there is currently sufficient information provided in the BIC application that would satisfy the Court to issue a BIC as sought by the applicant, based solely on quality of construction and as the provided compliance certifications in Exhibit E.

73. However, as explained above, I find that the outbuilding, as constructed and located on the site, causes adverse (visual) amenity impacts to adjoining residents, and is incompatible in context and character of the area, due to its unreasonable bulk and scale. This assessment includes the portion of the driveway that extends beyond the permeable paving strips because this structure is associated with the unreasonable elevation of the northern portion of the outbuilding.

74. Therefore, I find that the orders sought for the works described in the BIC application that relate to the outbuilding (granny flat, garage, elevated driveway), should not form part of a BIC to be issued by Council, as I am not satisfied that s 6.25(1)(a) of the EPA Act is sufficiently addressed for these works.

75. However, I accept that there are other works sought in the orders of the BIC application appeal (described in Exhibits K and 12) that do not relate directly to the assessed outbuilding and which I consider are reasonable.

76. There is no contest with regards to these ‘other’ works as described below and in the amended application of the BIC, which I find satisfy the requirements of s 6.25(1) of the EPA Act.

77. Pursuant to s 8.25(3)(a), I consider it appropriate to direct the Council to issue the BIC for the following works, at the location and condition shown in the plans attached to the amended BIC application (Exhibit K):

• roller door,

• permeable paving strips,

• timber bridge – pool under,

• garden bed along existing pool, and

• privacy screens.

78. The direction given by the Court as it relates to the BIC application does not include the works described as ‘New Granny Flat and Garage’, or the driveway portion beyond the permeable paving strips, as shown in Exhibit K.

Conclusion

79. The Court, after assessing the available evidence and information supporting the amended DA and BIC application appeals, must be satisfied of the jurisdictional requirements to grant consent to the DA and direct the issue of a BIC, as sought by the applicant.

80. The Court must make a merit and jurisdictional assessment of the facts and evidence when considering the appeals. I note that the burden of proof lies with the applicant to satisfy the Court by provision of relevant and sufficient information to make its assessment. The parties and Court agree that the existence of the unlawful/unauthorised structures does not burden or should prejudice the Court in its assessment and determination.

DA Appeal 2020/56714

81. Based on my assessment of the evidence before me, I refuse to grant consent to the amended DA under appeal, seeking the use of the outbuilding that was unlawfully commenced, pursuant to s 4.16(1)(b) of the EPA Act.

82. For the reasons provided above in this judgement, namely inconsistency with relevant zone objective and development controls, causing amenity impact and inconsistent with character, I find that the application does not satisfy the matters required for consideration in s 4.15(1) of the EPA Act. Therefore, pursuant to s 4.16(1)(b), the amended DA under appeal is refused.

BIC Appeal 2020/56722

83. The Court’s discretion to assess and direct 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 partially reasonable. Pursuant to s 8.25(3), the Court has the power to direct Council to issue a BIC, according to the terms and conditions it deems appropriate. In this appeal, I determine that the orders sought by the applicant should be altered to exclude any structures/works associated with the outbuilding.

84. All supporting plans/documents have been assessed by the Court. I find that the works described in the BIC application that do not relate to the outbuilding, satisfy the requirements of the relevant planning instruments, specifically s 6.25 of the EPA Act.

85. The orders of the Court, made pursuant to s 8.25(3)(b), are to alter the terms of the orders for the BIC sought and direct the Council to issue the BIC as described in the Proposed Site Plan (Drawing Number 18159-01) by ES Engineering, dated 13 May 2021, Issue H, although excluding the structures described in this plan as a ‘New Granny Flat and Garage’, which includes the new secondary dwelling, storage, garage and the driveway beyond the permeable paving strips. This plan is provided in Annexure A to this judgement.

86. The Court makes orders for this plan to be amended by the applicant according to the orders given and to be adopted for issuance of the BIC by Council.

Orders

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

DA Appeal 2020/56714

1. The applicant is granted leave to rely on Proposed Site Plan (Drawing Number 18159-03) by ES Engineering, dated 13 May 2021, Issue H.

2. The appeal is dismissed.

3. Development Application 2019/43, for use the outbuilding with associated structures that was unlawfully commenced on Lot 2 DP 544171, also known as 53 Oliver Street, Bexley North is refused.

4. The exhibits, except for Exhibit 1, A, J, are returned.

BIC Appeal 2020/56722

1. The Applicant is granted leave to amend Building Information Certificate Application No. BC-2018/49 to rely upon Proposed Site Plan (Drawing Number 18159-01) by ES Engineering, dated 13 May 2021, Issue H.

2. The appeal is upheld.

3. Pursuant to section 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, Bayside Council is directed to issue a building information certificate for application no. 2018/49 to the applicant for the following works on Lot 2 DP 544171, also known as 53 Oliver Street, Bexley North, subject to Annexure A:

1. fence screening,

2. a roller door,

3. permeable paving strips,

4. timber bridge over pool, and

5. garden bed along existing pool.

4. The applicant is to amend the Proposed Site Plan described in order (1), to reflect the works approved by the Court in order (3), and the respondent is directed to rely on the amended plan in the issuance of the BIC.

5. The exhibits, except for Exhibits 2, B, E, K are returned.

…………………….

Sarah Bish

Commissioner of the Court

Annexure A (993698, pdf)

Plans (2035675, pdf)

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Decision last updated: 01 June 2021