Eskander v Georges River Council

[2024] NSWLEC 1006

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Eskander v Georges River Council [2024] NSWLEC 1006

Hearing dates:

20-21 November 2023

Date of orders:

16 January 2024

Decision date:

16 January 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits 1, 2, F and G are returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – development application – detached dual occupancy – whether adequate arrangements for suitable vehicular access – impact on trees – landscaping – size of basement and extent of excavation

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Georges River Local Environmental Plan 2021, cll 4.3, 4.4A, 6.2, 6.9, 6.12

Land and Environment Court Act 1979, ss 34AA, 39, 40

Local Government Act 1993, s 701

Roads Act 1993, ss 6, 249

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Uniform Civil Procedure Rules 2005, Pt 31

Cases Cited:

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182

Fitton v Central Coast Council [2022] NSWLEC 1215

Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155

Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075

Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300

Wollondilly Shire Council v Kennedy [2023] NSWLEC 53

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Georges River Development Control Plan 2021

Georges River Council, Tree Management Policy, 2019

Standards Australia, Australian Standard AS 4970-2009 Protection of trees on development sites, August 2009

Category:

Principal judgment

Parties:

Shady Eskander (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
R White (Applicant)
C Koikas (Respondent)

Solicitors:
Project Lawyers Pty Ltd (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/91345

Publication restriction:

No

Judgment

1. COMMISSIONER: Ogilvy Street, Peakhurst, is a residential street to the south of Henry Lawson Drive, where post-war housing is gradually transitioning to new dwelling houses and dual occupancies. At 12 Ogilvy Street, Mr Eskander seeks development consent for the construction of a detached dual occupancy, with one dwelling to be accessed from Ogilvy Street and the second dwelling proposed to be accessed from a street to the rear known as David Place. The development application was lodged with Georges River Council (the Council) on 20 October 2022. Following the expiry of the period after which a development application is deemed to be refused, Mr Eskander lodged the present appeal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proposed development includes the demolition of existing structures and the construction of a detached dual occupancy. The dwelling to be accessed from Ogilvy Street (dwelling 1) is proposed to be two-storeys in height with two levels of basement below, with part of the lower basement level to be used for large format artworks storage in the location where the upper basement level contains a void. Dwelling 1 has six bedrooms and a study, and an outdoor pool. The dwelling to be accessed from David Place (dwelling 2) is smaller in scale, with two-storeys containing two-bedrooms and a combined living and dining room.

3. The proceedings were required to be listed for a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act) and a conciliation conference was listed for 23 June 2023. On that date, Acting Commissioner Washington made a determination the proceedings were not to continue to be dealt with under s 34AA(2). The proceedings were then listed by the Registrar for a court hearing on 20 and 21 November 2023.

4. At the hearing the Council approved an amendment to the development application pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amendment includes amended architectural plans, an amended landscape plan, an amended stormwater concept design and a revised Arboricultural Impact Assessment dated 14 November 2023. The amendments include a reduction in the extent of the basement floor area, the introduction of a ‘cut out’ in the corner of the built form to avoid built form on an area around one of the trees, and changes the stormwater design so that it no longer conflicts with the trees to be retained. The proposed development, which includes what is in the amended documents and the Arboricultural Impact Assessment, now also includes the removal of two exempt trees.

5. The Council remains opposed to the grant of development consent. It contends that the proposed development includes a use for the purpose of an art gallery, which is a prohibited use. It also contends that the extent of excavation for the basement is unacceptable and that there are unacceptable arboriculture impacts. Further, the Council says that there is no power to grant development consent in circumstances where there is no legal right of access to David Place, due to a narrow parcel of land between the site and David Place over which Mr Eskander does not have an easement. Other contentions raised by the Council have either been resolved, or can be dealt with by way of a condition of consent.

6. For the reasons that are set out below, I am not persuaded that the proposed development includes a use for the purpose of an art gallery. Nor am I persuaded that either the extent of excavation or the impact on the trees is unacceptable. Further, a legal right of access over the narrow parcel of land can be obtained by a deferred commencement condition requiring an easement. I have therefore concluded that none of the contentions raised by the Council warrant refusal of the development application.

The site and the locality

7. The site is legally described as Lot C in DP 342717, and is a rectangular shaped mid-block allotment of 1532.7m² with a frontage of 20.1m to Ogilvy Street. It has a fall of 4.3m from the rear to its Ogilvy Street frontage.

8. At the rear of the property, a small lot known as Lot 8 DP 239732 (Lot 8) runs alongside the southern side boundary and separates the site from David Place. Lot 8 is 15.24m long and 0.914m wide. Its central portion is constructed road pavement that continues from David Place, and its ‘wings’ form part of the front yard of the properties on each side of David Place. An operable gate separates Lot 8 from 28 David Place, and vehicular access to 28 David Place is achieved through Lot 8. An aerial photograph of the site and its relationship with Lot 8 and David Place is at Figure 1.

9. The site is opposite Johnstone Street Reserve, and is located in a small residential pocket bounded by Henry Lawson Drive to the south, Belmore Road to the east, Clarendon Road to the north and Salt Pan Creek to the west. The surrounding locality is characterised predominantly by dwelling houses, some of which are newly constructed double storey dwelling houses, and a small number of dual occupancies are also within the visual catchment.

The planning framework

10. The site is zoned R2 Low Density Residential, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP). Dual occupancies are a permissible use in the R2 zone. The objectives of the R2 zone are as follows:

• 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 promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity.

• To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.

11. The proposed development complies with the height development standard imposed by cl 4.3 of the GRLEP.

12. Pursuant to cl 4.4A(4) of the GRLEP, the floor space ratio (FSR) development standard that applies to the site is 0.4941:1. The town planning experts agree that the proposed development complies with this standard.

13. Clause 6.2 of the GRLEP concerns earthworks, and at cl 6.2(3) requires consideration of a number of matters, as follows:

(3) In deciding whether to grant development consent, 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) measures to minimise the need for cut and fill, particularly on sites with a slope of 15% or greater, by stepping the development to accommodate the fall in the land,

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

(g) the likelihood of disturbing relics,

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

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

14. Clause 6.9 of the GRLEP precludes the grant of development consent unless essential services are available or can be made available, as follows:

6.9 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the supply of telecommunications facilities,

(d) the disposal and management of sewage,

(e) stormwater drainage or on-site conservation,

(f) suitable vehicular access.

15. Clause 6.12 concerns the provision of landscaping in land in applicable zones, including the R2 zone, and, in relation to this site, requires 25% of the site to be landscaped. In addition, at cl 6.12(4) it provides:

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

(a) allows for the establishment of appropriate plantings—

(i) that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and

(ii) that will maintain and enhance the streetscape and the desired future character of the locality, and

(b) maintains privacy between dwellings, and

(c) does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on the land or adjacent land, and

(d) enables the establishment of indigenous vegetation and habitat for native fauna, and

(e) integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.

16. The Georges River Development Control Plan 2021 (GRDCP) also applies to the site. The GRDCP was amended on 24 July 2023 and 26 June 2023, and the parties agree that the effect of the savings provision at Section 1.7 is that those amendments do not apply to the proposed development, given that the development application was lodged prior to those amendments.

17. Part 3 Section 3.3 of the GRDCP concerns landscaping, and Part 3 Section 3.5 concerns earthworks, both of which are considered in detail below. Further, Part 6.1 contains residential controls and will also be considered below.

The expert evidence

18. Expert evidence on the town planning issues was given in a joint report and in oral evidence by Mr Michael Neustein, an architect and town planner engaged by Mr Eskander, and by Ms Apoorva Chikkerur, the town planner and assessment officer employed by the Council.

19. Mr Neustein and Ms Chikkerur agree that the proposed development complies with the FSR development standard, and presents as two-storeys to Ogilvy Street. However, they disagree as to the adequacy of the front setback, the appropriateness of the extent of excavation, the privacy impacts from the first floor balcony on the southern side setback, and the permissibility of the art storage area within the basement.

20. Expert evidence on the landscaping and arboricultural issues was given in a joint report and in oral evidence by Mr Greg Tesoriero, an arborist and landscape expert engaged by Mr Eskander, and Mr Craig Kenworthy, an arborist and landscape expert engaged by the Council. Following the amendments to the development application and the revised Arboricultural Impact Assessment dated 14 November 2023, there remain only three trees about which Mr Tesoriero and Mr Kenworthy hold differing opinions. This is considered further below.

The resident objectors

21. The development application was notified from 27 October to 10 November 2022, and 20 written submissions were received. In addition, at the commencement of the hearing, a number of residents attended and gave oral evidence concerning the proposed development. The issues raised in the written submissions and through the oral evidence can be summarised as follows:

• Adverse privacy impacts;

• Excessive basement, and noise generated from any basement pumps;

• Traffic and parking congestion and safety;

• Excessive bulk and scale;

• The potential for the basement to be used for illegal purposes; and

• Inadequate setback to David Place.

22. The issues concerning privacy and the basement are dealt with in my consideration below.

23. In relation to the traffic issues, the development application provides parking consistent with the requirements under the GRDCP and is supported by a vehicle swept path diagram that demonstrates that vehicles leave the site from both dwelling 1 and dwelling 2 in a forward direction. Section 4.15(3A)(a) of the EPA Act operates to prevent a consent authority requiring more car parking spaces than what is required by the GRDCP. Accordingly, the traffic and parking issues raised by the residents do not warrant refusal of the development application.

24. In circumstances where Mr Neustein and Ms Chikkerur agree that the proposed development complies with the FSR development standard and that the proposed development presents as two storeys to the street, I consider the bulk and scale to be acceptable.

25. The residents’ concerns with respect to the use of the basement for illegal activities is a hypothetical concern that is unsupported by evidence. The proposed development is for use for the purpose of the dual occupancy, which is the residential dwelling use of each dwelling, including the basement of dwelling 1. That is the development application that the Court is assessing. If development consent is granted, the consent for the dual occupancy is constrained to that use. A grant of consent for a dual occupancy does not authorise another use of the site, for illegal purposes or otherwise.

26. In relation to the setback to David Place, there is no breach of any setback requirement on that part of the site.

The contentions that are now resolved

27. The following contentions, raised by the Council in its Amended Statement of Facts and Contentions, have now been resolved.

Owner’s consent (contention 1.2)

28. The Council raised a contention that the development application relates also to the use of Lot 8, through which access is required to dwelling 2 from the public road known as David Place. Lot 8 is owned by the Council, and the owners’ consent to the development application has not been given by the Council. The Council’s contention asserted that owner’s consent is required by s 23 of the EPA Regulation for a development application to be made, and its absence means that the development application cannot be granted.

29. However, the Council now agrees that the Court, for the purpose of determining the subject appeal, can exercise the power of the Council to give the necessary owner’s consent required by s 23 of the EPA Regulation so as to enable it to lawfully determine and dispose of the development appeal. This function arises pursuant to s 39(2) of the LEC Act (see Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34]).

30. Accordingly, the Court can exercise the function of giving owner’s consent for the development application, which seeks the use of Lot 8 for vehicular access to dwelling 2, and this contention does not warrant the refusal of the development application on the appeal.

Non-compliant FSR (contention 1.3)

31. Whereas the Council raised a contention that the proposed development did not comply with the FSR development standard, both Mr Neustein and Ms Chikkerur now agree that the proposed development complies with the FSR development standard, and all disputes concerning what constitutes “gross floor area” have now been resolved.

32. Accordingly, this contention is now resolved, and I accept that the proposed development complies with the FSR development standard.

Front setback (contention 1.4)

33. The Council raised a contention concerning the town planning outcomes of the proposed development (contention 1.4). One aspect of this contention is that the front setback for dwelling 1 does not comply with what is required by the GRDCP. Part 6.1.3 of the GRDCP, at Control 1(iii), requires the front setback to be prevailing street setback, which is the average setback of dwellings on adjoining lots. Mr Neustein and Ms Chikkerur agree that the minimum front setback required is therefore 6.37m.

34. The proposed development has a front setback at both the basement and first floor levels of 5.2m. At the first floor, the front setback to the wall of the dwelling complies with the 6.37m setback but the balcony and its supporting piers have a setback of only 5.2m. Whilst Mr Neustein considers that the GRDCP could be interpreted to allow balcony projections and supporting piers to encroach within the 6.37m setback, Mr Neustein and Ms Chikkerur now agree, following clarification in cross-examination, that the first floor balcony and supporting piers can be the subject of a condition of consent requiring a change to the first floor balcony to achieve compliance with a setback of 6.37m. In closing submissions, the applicant’s position was that the GRDCP could be interpreted to allow the balcony setback to remain unamended, but when the conditions of consent were filed it contained an agreement on a condition for the amendment to the balcony front setback (although the wording is disputed). As such, this issue is now resolved. The remaining issues raised by contention 1.4 relate to the excavation and size of the basement, which are dealt with below.

Privacy impacts (contention 1.5)

35. The Council contends that the first floor balcony of dwelling 1, which faces the southern boundary, has the potential to cause adverse visual and acoustic privacy impacts. The Council agrees that this can be resolved through a condition requiring an acoustic privacy screen with a height of 1.6m from the finished floor level to be installed for the entire length of the area on the southern elevation.

36. Whilst Mr Neustein, in the joint report, opined that this is excessive for a residential dwelling and a 1.5m privacy screen for visual privacy ought to be sufficient, the applicant has nonetheless agreed to the condition proposed by the Council requiring the 1.6m acoustic screen.

35. Accordingly, the contention concerning privacy has been resolved.

Streetscape and character (contention 1.6)

38. Whilst the Council contended, in its Amended Statement of Facts and Contentions, that the proposed development is contrary to the desired streetscape and character, Mr Neustein and Ms Chikkerur now agree that the proposed development presents as two-storeys to Ogilvy Street, which is consistent with the streetscape. This contention is therefore resolved.

39. However, in the joint report concerning this contention, Ms Chikkerur gave evidence in relation to streetscape and character arising from the basement use as an art gallery, the size of the basement, and the extent of excavation. Each of those issues are dealt with below, in my consideration of the contentions that remain in dispute.

Insufficient Information (contention 2.1)

40. The Council, in its Amended Statement of Facts and Contentions, raised a contention that there was insufficient information to support the development application, and additional information was required concerning subdivision and the impact of the proposed development (as amended) on the existing trees. This contention has now been addressed by confirmation that subdivision is not sought in the proposed development, and by the provision of the revised Arboricultural Impact Assessment.

Permissibility (contention 1.1)

41. The Council contends that the application must be refused on the basis that it proposes a use for the purpose of ‘an information and education facility’ which is a prohibited use in the R2 zone. It advances this contention on the basis that the proposed basement for dwelling 1 includes an area for large artwork storage and an area that could be used as a viewing platform to the large artwork storage area, which it says is an art gallery. An information and education facility is defined in the GRLEP as follows:

information and education facility means a building or place used for providing information or education to visitors, and the exhibition or display of items, and includes an art gallery, museum, library, visitor information centre and the like.

42. In support of this contention, the Council submits that the extent of the floor space dedicated to the storage and display of art goes beyond the limit of what can be accommodated in a dwelling house use. The Council submits that it is therefore a separate and independent use of the land. In support of this submission, it relies on the decision of Wollondilly Shire Council v Kennedy [2023] NSWLEC 53, in which the Court found that a use for the storage of a large number of vehicles “is a separate, independent use of the Land, going well beyond use as a garage for cars used in daily life by the occupants of the house” (at [114]). In that decision, the Court also pointed out that “the subjective intention of the occupier of a dwelling cannot inform use for a planning purpose” (at [117]).

43. The Council’s position in this regard is supported by the evidence of Ms Chikkerur, who opines that the scale of the artwork storage area raises concern and the mezzanine basement level acts as a viewing gallery, which means that it is not merely being used for storage. Ms Chikkerur therefore says that the proposed storage is of such scale and intensity that it is capable of an independent use that is separate to the ordinary use of the dwelling.

44. I am not persuaded that this contention has any proper basis. There is no ‘information and education facility’ in the form of an art gallery proposed within the proposed development. The plans clearly show the area within the basement of dwelling 1 as a storage area for large artworks, supported by the Statement of Environmental Effects dated 27 March 2023, which describes the nature of the artworks to be stored. It is axiomatic that the storage area will need an area for inspecting or viewing the stored goods, but that does not make it an ‘information and education facility’ in the form of an art gallery, in the same way that displaying art at your dwelling does not make your dwelling an ‘information and education facility’. There is not a skerrick of evidence that “visitors” will be received at dwelling 1, so as to meet the definition of ‘information and education facility’.

45. Further, if development consent is granted, the consent is for the purpose of a dual occupancy. It is then the responsibility of the proponent and future occupiers to ensure that the use remains for the purpose of the dual occupancy use the subject of the consent, otherwise the use may become one that is either contrary to the consent, or prohibited. As I made clear in Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 at [91], “whether there is a risk that the use of the premises might evolve into a prohibited use is irrelevant to considering whether consent should be granted for a permissible use.” Therefore, even if there is potential for the basement to be used for a purpose that is not permissible (such as an art gallery), this does not prevent development consent being granted for the dual occupancy, and, if consent is granted, the development consent allows the use for that purpose and does not authorise the prohibited use.

Essential services – suitable vehicular access (contention 1.7)

46. As set out above, cl 6.9 of the GRLEP precludes the grant of development consent unless the Court, exercising the functions of the consent authority is satisfied that a number of essential services “are available or adequate arrangements have been made to make them available when required”. One such essential service is suitable vehicular access.

47. The Council contends that, given there is no legal right of access over Lot 8, which is owned by the Council, adequate arrangements have not been made to make vehicular access to dwelling 2 available when required. The Council points out that the Deposited Plan for Lot 8 indicates that it is on a separate allotment to the land dedicated as a public road and now known as David Place. The Council’s records indicate that Lot 8 is classified as operational land under the requirement to classify land pursuant to the Local Government Act 1993, but the Council has not provided details about the circumstances that caused it to be so classified.

48. Mr Eskander made an offer for a proposed easement for access over Lot 8, which went before a meeting of the Council on 23 October 2023. The minutes for the meeting contained a recommendation for refusal. The Council resolved to refuse the granting of an easement, although that resolution is not in evidence before the Court. Prior to this, on 25 September 2023, Mr Eskander commenced Class 3 proceedings seeking an easement over Lot 8, pursuant to s 40 of the LEC Act.

49. The Council submits that cl 6.9 of the GRLEP is a jurisdictional pre-condition that cannot be satisfied by a deferred commencement condition. In support of its position, it relies on the decision of the Court in Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155, in which Pain J found that, at [30]:

“the Court must have regard to the access arrangements in granting consent to the current development application and could not grant consent to a development if it was not satisfied that legal access was adequate and available”.

50. The Council also relies on the decision of the Court in Fitton v Central Coast Council [2022] NSWLEC 1215, in which Commissioner Dickson acknowledged that suitable vehicular access comprises of three components: an adequate physical method of access, a proprietary right or entitlement to traverse the land, and planning permission to use the relevant land for the purpose that access will serve (see [47]). The Council submits that an enforceable right is required to demonstrate that adequate arrangements are in place.

51. Further, the Council submits that the imposition of a deferred commencement condition is not sufficient to satisfy cl 6.9. The Council relies on the decision in Fitton v Central Coast Council that such a deferred commencement condition “defers determination of a critical matter to post determination and leaves unresolved an essential part of the development consent” (at [59]), which draws from the Court’s decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, in which Preston CJ found that you cannot defer consideration of a matter required to be considered prior to the grant of development consent.

52. On this basis, the Council submits that cl 6.9 of the GRLEP operates to prohibit the grant of consent unless the Court is satisfied that suitable vehicular access is available or that adequate arrangements, in the form of an easement, have been made to make suitable vehicular access available when required.

53. The applicant instead submits that there is sufficient information available for the Court to be satisfied that “adequate arrangements” have been made for suitable vehicular access, which is not required until the construction certificate or occupation certificate is issued. The applicant points out that that there is no issue concerning access over Lot 8 from an engineering perspective, it is sealed, unfenced and already used for the purpose of providing access to another property, and the legal right to access can be obtained through an easement. In that respect, the applicant relies on the fact that Class 3 proceedings have been commenced by Mr Eskander seeking the imposition of an easement over Lot 8 pursuant to s 40 of the LEC Act. Accordingly, the applicant submits that the Court can be satisfied that adequate arrangements for suitable vehicular access have been made and that access will be available when required.

Lot 8 and the public road

54. Section 6 of the Roads Act 1993 makes it clear that the owner of land adjoining a public road is “entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road”. If Lot 8 is a public road, then the owner of the site would have an entitlement to access across the boundary between the site and Lot 8.

55. A public road is defined in the Dictionary to the Roads Act as:

(a)  any road that is opened or dedicated as a public road, whether under this or any other Act or law, and

(b)  any road that is declared to be a public road for the purposes of this Act.

56. Section 249 of the Roads Act, which is identical to s 701 of the Local Government Act provides the following:

249 Evidence as to whether a place is a public road

(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road.

(2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown, etc).

57. Lot 8 forms part of a thoroughfare in the nature of a road, and is so used by the public. As observed at the site inspection, it is not fenced off from David Place or from the properties to the east or west, and it is sealed in the same way that David Place is sealed. However, this is not sufficient for the Court to find that Lot 8 is, in fact, a public road: see Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182.

58. Lot 8 is classified as operational land in the Council’s land register, and was left out of dedication as a public road in the registration of the deposited plan. The Council has provided no other details about the Council resolution or the local environmental plan that caused it to be classified as operational, or the legislative regime that would have caused it to be classified that way. In the papers prepared for the Council meeting of 23 October 2023, Lot 8 is described as a “Development Control Strip”.

59. I ought to proceed, therefore, on the presumption that Lot 8 is not a public road. Legal access over Lot 8 must be in another form, and the parties agree that this can be in the form of an easement.

Adequate arrangements have been made

60. I am satisfied that arrangements have been made to make vehicular access to dwelling 2 available when required, and that those arrangements are adequate. I reach this conclusion for three reasons.

61. Firstly, Lot 8 provides a physical method of access to the site that is capable of suitably servicing dwelling 2. There is no requirement for any works to be carried out on Lot 8 to make it suitable. There is no physical impediment to the use of Lot 8, as it is unfenced on its David Place frontage and is already sealed in the same way as David Place is sealed, so that the boundary between Lot 8 and David Place is physically imperceptible. It is already used to provide vehicular access to 28 David Place. Lot 8 is of sufficient size to accommodate vehicular access to both 28 David Place, and the site, without there being unacceptable vehicle conflicts. Having regard to what was observed at the site inspection, there will not be any unacceptable impact on David Place or on the residents of David Place if vehicular access is achieved to the site through Lot 8, and no works are required on Lot 8 to accommodate that access. This is in stark contrast to the circumstances in Fitton v Central Coast Council, in which upgrades to the right of way were required and development consent would have been required for those works.

62. Secondly, a process is already in place to obtain the legal right or entitlement to traverse Lot 8 in order to access dwelling 2. The applicant has made an offer for an easement, and proceedings have been commenced for an easement to be imposed on Lot 8 for that purpose.

63. I do not accept the submission made by the Council that an enforceable right is required to be in place prior to the grant of development consent. Obviously, if an easement were in place, then the first limb of cl 6.9 of the GRLEP requiring that the services “are available” would be satisfied. However, cl 6.9 deliberately provides scope to be satisfied that “adequate arrangements have been made to make” the services “available when required”. The fact that an easement will need to be obtained to make that service “available when required” does not prevent such satisfaction.

64. Thirdly, the Council has not advanced any basis upon which or evidence that there might be a legal impediment to the grant of an easement. In the papers for the meeting of the Council on 23 October 2023, Lot 8 is described as a “development control strip” with the following explanation:

“The land parcels are what is known as Development Control Strips and have historically been (generally) created by Councils to prevent an adjoining owner gaining direct access to a public road for which the adjoining owner did not financially contribute to that road’s construction.”

65. The background then gave the following information concerning the potential extension of David Place:

“7. The southern part of David Place has a connection to Ogilvy Street, while the northern part of David Place connects to Clarendon Road. The connection of the southern and northern part of David place is interrupted by private land holdings and land held by Council for the purpose of facilitating the public road connection of both sides of the David Place. Refer to Attachment 1.

8. Council is the owner of four (4) land parcels in this regard in David Place, Peakhurst. These properties were transferred to Council in the 1960’s for road purposes. Despite the roadway having been constructed on these parcels, the roadway has not been dedicated as public road.”

66. Attachment 1 was not provided in evidence to the Court.

67. The paper then states that the granting of the easement will restrict the ability of the Council to construct a full width carriageway, as the dwelling proposed in the development application for which the easement was sought (dwelling 2), would be within the alignment of the future road. Specifically, it states:

“The granting of access rights over the development control strip will restrict Council’s ability to construct a full width carriageway, as it will most likely result in the construction of a dwelling within the alignment of a future road reserve, required to complete the David Place connection. This may have an impact on Council, by way of increased costs, should there be a need to acquire land for a road extension that is impacted by a residential dwelling.”

68. These statements are not supported by any strategic planning document or development control plan for the extension of David Place in the way described. Lot 8 is zoned R2 Low Density Residential pursuant to the GRLEP, with the same height and FSR development standards that apply to the site. It is classified as operational land, and there are no restrictions preventing the sale of operational land under the Local Government Act. There is no indicative layout plan for the area that supports there being a plan for the David Place connection referred to. Whilst there is a roadway constructed on four lots owned by the Council, as there is on Lot 8, the Council says that none of that roadway or Lot 8 is public road.

69. Accordingly, the matters raised in the paper for the meeting of 23 October 2023 do not raise any legal impediment to the grant of an easement over Lot 8. Nor did the Council advance any other grounds as to a legal impediment to the grant of an easement. In addition, the Council has not raised a contention in these appeal proceedings that the construction of dwelling 2 will impede a future David Place connection, or a contention concerning the setback to dwelling 2 to accommodate a full width carriageway for such a connection.

70. For those reasons, consistent with the requirements of cl 6.9 of the GRLEP, I am satisfied that adequate arrangements have been made to make vehicular access to dwelling 2 available when required. Lot 8 provides a suitable physical method of access, and there is no evidence of any legal impediment to the grant of an easement over Lot 8.

71. Further, development consent for the use of Lot 8 for that purpose can form part of the development consent for the site, given that the Court can exercise the function of the Council in granting owner’s consent. This is completely different to the circumstances in Huntington & Macgillivray v Hurstville City Council, in which development consent for use of the right of way could not be granted as landowner’s consent had not been given.

72. It is therefore appropriate for there to be a deferred commencement condition requiring an easement to be obtained. It is appropriate for a condition requiring the easement to be a deferred commencement condition, so that there is lawful vehicular access to dwelling 2 prior to the development consent becoming operative. The case relied upon the Council concerning deferred commencement conditions, Ballina Shire Council v Palm Lake Works Pty Ltd, is not relevant, as that decision concerned deferring satisfaction of the acceptability of an offsite impact of the development. It has no relevance here, where the deferred commencement condition simply requires an easement, and does not defer the consideration of any impact of the development or any other jurisdictional pre-condition.

Impact on trees (contentions 1.8 and 1.9)

73. The Council also contends that the Court cannot be satisfied that the proposed development will not have an adverse impact on Trees 5, 6 and 12. Whilst those trees are not proposed to be removed by the development, the Council’s position is that their retention will not be achieved.

74. As set out above, cl 6.12(4) of the GRLEP precludes the grant of development consent unless the Court, in exercising the functions of the consent authority, is satisfied that the development “does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on the land or adjacent land”. Part 3 Section 3.2 of the GRDCP requires development to comply with the Council’s Tree Management Policy, and includes the following objectives:

“(a) Ensure the protection of existing trees which contribute to the visual amenity and environment of the LGA.

(b) Protect trees within and adjacent to all development sites.

(c) Maximise healthy tree canopy coverage across the LGA, so as to maximise reduction in the urban heat island effect.

(d) Identify responsibilities and requirements with respect to the protection, retention and replacement of trees

…”

75. In Part 3 Section 3.3 of the GRDCP, which concerns landscaping, the objectives include protecting “significant trees and vegetation as outlined in Council’s Tree Management Policy” and promoting “healthy growth of canopy trees”.

76. The Tree Management Policy, at Section 4.2, sets out the elements to be considered in planning the design of a development as follows:

“In planning the design of a development, consideration must be given to trees on the subject site and on the adjoining land. Elements to consider include:

• Designs to minimise or avoid potential conflict between trees and structures – on site and on any neighbouring property

• Existing prominent trees should be retained and incorporated as part of the design within an enforceable Tree Protection Zone (TPZ) being 12 x trunk diameter (DBH) when measured at 1.4 metres from ground level

• Existing and future tree growth both above and below ground are to be a consideration when building close to a tree

• Sufficient landscape area and deep soil planting areas must remain to allow for replanting of replacement trees.”

77. Part 5 of the Tree Management Policy sets out what should be considered in planning the design of a development, as follows:

“• Minimise or avoid potential conflict between trees and structures – on site and on any neighbouring property.

• Existing prominent trees should be retained.

• Existing and future tree growth both above and below ground must be a consideration when building close to a tree.

• Building construction methods that will minimise the impact on trees and their root systems.

• Trees identified to be retained on the site and on adjoining land are to be protected in accordance with Australian Standard AS 4970 – Protection of Trees on Development Sites.

• Preliminary impact assessments are required for trees of value that may be impacted by a proposed development.”

78. It is therefore clear than the protection of trees is required to be in accordance with Australian Standard AS 4970.

Impact on Tree 5

79. Tree 5 is a lemon-scented gum located mid-way along the southern boundary of the site. The proposed development has a 11.5% encroachment to the tree protection zone (TPZ), which is considered a major encroachment as per AS 4970. However, there is no encroachment into the structural root zone (SRZ).

80. Mr Kenworthy’s evidence is that the impact on Tree 5 will be significantly greater than that calculated by the incursion into the TPZ, as the tree will have to deal with a hydrological change to the soil. Mr Kenworthy opines that, as a result of shadow from the proposed development, the area that the tree is in “will remain constantly wet and damp, collect moisture” which he says is a condition that “this aged tree has never had to cope with”. Accordingly, he says that the assessment carried out is not adequate to meet the requirements of AS 4970 as it does not consider soil drainage, and as it does not contain root mapping.

81. The applicant submits that the evidence of Mr Kenworthy on this point is speculative, and relies on the evidence of Mr Tesoriero that, whilst the encroachment into the TPZ is considered major, it only marginally exceeds the threshold of 10%. His evidence is that the tree is “capable of tolerating the anticipated impacts” based on its current vitality and the fact that the proposed works are at the outer extent of the TPZ area such that they are “unlikely to result in conflict with any roots integral to the health or structural condition of [the] tree”. Further, Mr Tesoriero points out that the tree is provided with a contiguous area that is undisturbed by the development and states:

“in accordance with Section 3.3.3 of AS4970-2009, a contiguous area equivalent to that lost to the encroachment is available for root establishment to the south of Tree 5 to assist in reducing impacts.”

82. I accept the applicant’s submission that Mr Kenworthy’s evidence on the changing soil conditions is speculative. His opinion that water retention within the soil will increase by reduced solar access to the topsoil, resulting in an area that is “constantly wet”, is not supported by his area of expertise or by any other material that would lead to that conclusion. Instead, the geotechnical investigation for the site, dated 8 May 2023 (the geotechnical report), found that the soils and bedrock profile had low permeability and the groundwater levels were at least 3.2m below the ground level, well beyond the top of the soil that AS 4970 says that most roots of most trees can be found. Further, the development would be required to be carried out in accordance with that report, which requires drainage to be provided behind all basement retaining walls, around the perimeter of the basement and below the basement slab, with a sump and pump system. As such, there is no evidence that the soil around Tree 5 would retain any additional water as a result of the proposed development, even if there is less sunlight to the topsoil.

83. Instead, I accept the opinion of Mr Tesoriero that Tree 5 is capable of tolerating the anticipated impacts of the proposed development, for the reasons advanced by him. Root mapping is not required in order to reach that conclusion. The incursion into the TPZ is at its outer extent, there is no incursion into the SRZ, the tree is in good health, and a contiguous area equivalent to that lost is available for root establishment if required.

Impact on Tree 12

84. Tree 12 is a Mugga Ironbark located toward the south-east corner of the site, in the area that will become the front yard for dwelling 2. The proposed development will have an incursion of 9.9% into the TPZ of Tree 12, and no incursion into the SRZ. However, the driveway for dwelling 2 is proposed to pass along the surface of the site within the TPZ and the SRZ, such that retention of the tree is contingent on the implementation of tree protection measures and root sensitive construction methodology. That methodology is set out in Section 7 of the Arboricultural Impact Assessment.

85. Mr Kenworthy’s evidence is that, in assessing the impact on Tree 12, Mr Tesoriero has not factored in level changes required for the depth of gravel driveway to meet the required boundary levels at David Place or at the garage entrance, and the extent of compaction that will occur with use of the driveway.

86. Mr Tesoriero instead points out that the TPZ encroachments are within the acceptable margins required by AS 4970, and the driveway design has been amended to provide “a fully permeable gravel surface incorporating gap-graded structural soils to ensure ongoing water infiltration, oxygen exchange, root growth as well as minimise ground surface compaction” (Ex G, p 12). Further, he points out that the driveway will be constructed “entirely above the existing grade to ensure no excavation or severance of roots is required to facilitate construction” (Ex G, p 12). Based on these facts, Mr Tesoriero opines that Tree 12 will be capable of adapting to the changed conditions and there will be no reduction in its useful life expectancy “given that there will be minimal changes to water infiltration, oxygen exchange, root growth or ground surface compaction” and given the minor encroachment into the TPZ. His evidence is also that there will be no compaction and the material to be used for the gravel driveway is acceptable pursuant to the AS 4970.

87. I do not consider that any of the issues raised by Mr Kenworthy concerning Tree 12 establish a deficiency with the assessment carried out by Mr Tesoriero. I accept the opinion of Mr Tesoriero that Tree 12 will remain viable following completion of construction with no reduced useful life expectancy, on the basis of the facts set out in his evidence. In circumstances where the TPZ encroachment is a minor encroachment as defined by the AS 4970, there is no encroachment in the SRZ, and the driveway design allows for a permeable gravel surface with gap-graded structural soils to ensure minimal changes to water infiltration and oxygen exchange, I accept that Tree 12 will be capable of adapting to the changed conditions and it will not be adversely impacted by compaction.

Impact on Tree 6

88. Tree 6 is a row comprising nine guava shrubs growing as a boundary hedge on the adjoining property to the north. As such, any impact on this hedge is an impact on the adjoining property. The proposed development encroaches into 34% of the TPZ and 31% of the SRZ due to a proposed retaining wall.

89. Mr Kenworthy opines that the extent of incursion in the SRZ and TPZ is “unsustainable and cannot be supported”. The Council points out that the trees are located on neighbouring land and there is no consent to interfere with those trees, and submits that this heightens the persuasive burden that the applicant is required to meet that Tree 6 will remain unaffected. The Council submits that the Court cannot be satisfied that this row of shrubs will be capable of surviving if the proposed development is carried out.

90. The applicant instead relies on the evidence of Mr Tesoriero, who opines that the partial encroachments are tolerable based on the small dimensions of the shrubs, their young-mature age and good vitality. His evidence is that “the species is known to be hardy and vigorous growing and… has a moderate-high level of tolerance to root disturbance given its propensity to become invasive and its listing as an environmental weed in some Australian states which is known to sucker from the roots.” The Arboricultural Assessment Report also states that there is an area contiguous with the TPZ that will remain available that could compensate for the area lost to the encroachment.

91. Contrary to the opinion of Mr Kenworthy, the mere fact that there is a major encroachment into the TPZ or the SRZ does not mean that the impact on the tree is unacceptable. As set out in AS 4970, if this occurs, “the project arborist must demonstrate that the tree(s) would remain viable”, and “The area lost to this encroachment should be compensated for elsewhere and contiguous with the TPZ” (at Section 3.3.3). I am satisfied that the shrubs that comprise Tree 6 will remain viable, based on the evidence of Mr Tesoriero. They have a trunk diameter at breast height of between 70-150mm, so they remain quite small, and I accept his evidence that the species is known to be hardy and vigorous growing with a moderate-high level of tolerance to root disturbance. Mr Kenworthy conceded in cross-examination that they are known as a hardy species. Accordingly, I accept the opinion of Mr Tesoriero that the encroachments can be tolerated, such that any impact on the shrubs that form Tree 6 will be negligible.

The impact on the trees is acceptable

92. For the above reasons, I am satisfied that the proposed development will not adversely impact trees 5, 6 and 12. There are no other trees about which the Council or Mr Kenworthy remain concerned. As such, I am satisfied that the development does not “adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems” on the site or neighbouring land, consistent with cl 6.12(4)(c) of the GRLEP, and the landscaping plan integrates with existing vegetation to protect existing trees, consistent with cl 6.12(4)(e).

93. I also conclude that the objectives in Part 3 Sections 3.2 and 3.3 of the GRDCP are met, as the proposed development protects existing significant trees within and adjacent to the site, and promotes the healthy growth of canopy trees by ensuring trees 5 and 12 remain viable.

Landscaping in the front setback (contention 1.9)

94. The Council’s contention concerning landscaping also raised an issue concerning the viability of the trees and shrubs proposed in the front yard of dwelling 1, which is also proposed to be an onsite detention basin. The landscape plans show four trees within the onsite detention basin, and callistemons planted on top of the piping. As such, the Council contends that they will interfere with water flows and pipework in that area. This is supported by the evidence of Mr Kenworthy, who considers that this arrangement is not supported as the conflict will see the trees removed due to pipe work damage, the trees can impede water flows and cause flooding within buildings, and the cut of the land required for the stormwater design results in 700-800mm of graded soil removal which will create poor growing environment for the trees.

95. Mr Tesoriero instead opines that the internal deep soil area within each basin would be capable of supporting one medium size (8-12m) canopy tree which is what is proposed. A letter from the civil engineer who designed the onsite detention system indicates that the provision of one medium sized tree within each basin will not impede water flows, however that evidence was not given in the form required for expert evidence under Pt 31 of the Uniform Civil Procedure Rules 2005.

96. The parties largely agree that potential conflicts between the plantings in the front setback and the stormwater infrastructure can be resolved by condition. The Council proposes a condition as a deferred commencement condition as follows:

“Stormwater Design Changes - The stormwater plan shall be amended to address the following OSD design issues and submitted to Council’s development engineers for review:

i. Remove any conflict between the stormwater plan and the landscaping plan regarding the proposed trees and large garden beds within the proposed OSD basin.

ii. Provide a weir to the OSD system with adequate freeboard to the building finish floor level (minimum 250mm) for example with additional protection such as adding brick layers to the surroundings of the water storage area or similar.”

97. The applicant instead proposes an operational condition as follows:

“The planting of trees and vegetation in the front setback is to be supervised by the Applicant’s landscape expert, in conjunction with the stormwater engineer, so as to ensure no conflict with the proposed OSD and stormwater infrastructure, in accordance with Council’s stormwater policy.”

98. In either scenario, the Court can be satisfied that any conflict is minimised between the onsite detention and the planting of trees and vegetation in the front setback.

99. However, there also remains a dispute as to the adequacy of the proposed plantings. Mr Kenworthy opines that the landscaping proposed is insufficient to soften the size and scale of the built form, and will not maintain and enhance the streetscape. To inform this opinion, he relies on his opinion concerning the viability of trees 5 and 12, the viability of trees within the onsite detention basin, and the fact that the plantings along the northern boundary do not extend the full length of that boundary.

100. I do not accept Mr Kenworthy’s opinion with respect to the adequacy of the landscaping. The conditions of consent will ensure that there is no conflict between the trees and the onsite detention basin. The plantings on the north boundary are sufficient when taking into account the landscaping plan as a whole, and I have found above that trees 5 and 12 will not be adversely impacted. I prefer Mr Tesoriero’s evidence that the landscaping proposed will provide a greater level of vegetation and canopy cover when compared to the current site, such that the streetscape presentation will be enhanced by the provision of the landscaping proposed. As such, I am satisfied, consistent with cl 6.12(4) of the GRLEP, that the proposed development allows for the establishment of appropriate plantings that are commensurate with the height, bulk and scale of the buildings proposed, and will maintain and enhance the streetscape and the desired future character of the locality.

Size of the basement and extent of excavation (contentions 1.6, 1.10)

101. The Council contends that the depth of cut required for the basement is excessive, the basement size goes beyond the ordinary storage requirements associated with a dwelling house use, and does not comply with either the applicable controls in the GRDCP or their objectives.

102. The applicable controls in the GRDCP are found in Part 6.1.3, at Section 7, as follows:

“7. Excavation (Cut and Fill)

Objectives

(a) Retain natural ground levels and existing landform.

(b) Create consistency along streetscapes.

(c) Minimise the extent of excavation and fill.

(d) To ensure that excavation and fill does not result in an unreasonable loss of privacy or security for neighbours.

(e) Must not impact the height of the swimming pool fence on the subject site or adjoining sites to ensure compliance with AS1926 (latest edition).

Controls

1. Any excavation must not extend beyond the building footprint, including any basement car park.

2. The depth of cut and fill must not exceed 1.0m from existing ground level, except where the excavation is for a basement car park.

3. Developments are to avoid unnecessary earthworks by designing and siting developments to respond to the natural slope of the land. The building footprint must be designed to minimise cut and fill by allowing the building mass to step in accordance with the slope of the land.”

103. In addition, control 4 of Section 2 of Part 6.1.3 provides a limit on the size of a basement as follows:

“4. Where topography conditions require a basement, the area of the basement should not exceed the area required to meet the car parking requirements for the development, access ramp to the parking and a maximum 10m² for storage and 20m² for plant rooms. Additional basement area to that required to satisfy these parking requirements may be included as floorspace area when calculating floorspace ratio.”

104. The proposed development seeks a basement that has a floor area of around 517.2m². The excavation required is up to 8.4m deep. This is far greater than the limits on basement area in control 4 of Section 2 of Part 6.1.3 of the GRDCP. It also exceeds the limit on cut in control 2 in Section 7, although strictly speaking this limit does not apply to a basement car park.

105. The Council’s position is that not only are the controls not met, but the proposed development does not meet the objective in Section 7 of Part 6.1.3 to minimise the extent of excavation. This is supported by the evidence of Ms Chikkerur, who considers that the excessive basement area is incompatible with the current single and two-storey dwellings with primarily at-grade garages, and the excavation does not follow the natural topography of the existing ground level. Instead, she opines that it is a way to get around the prescribed height and floor space development standards in the GRLEP. Further, she considers that excavations of this nature are not common in low density residential areas and are more common in higher density developments, and its approval would present an undesirable precedent for developments in low density residential areas. Ms Chikkerur also provides evidence concerning alleged inadequacies in the geotechnical report.

106. In contrast, the applicant relies on the evidence of Mr Neustein, who points out that there are no above ground impacts from the size of the basement or the extent of excavation. Firstly, he opines that only visible aspects of development can contribute to the character of an area, and from the public domain the below-ground level will appear only as a basement garage and the size of the basement and the extent of excavation will not be perceived. Secondly, he points out that the cost of the basement is substantial, and it is therefore highly unlikely to become a common form of development. Thirdly, based on the geotechnical report, there is no impact on adjoining structures. Fourthly, his evidence is that the basement excavation does not extend beyond the general footprint of dwelling 1 and does not impact on the topography of the site, which would have to be benched if the basement was not proposed to allow level floor slabs. Further, he considers that, having regard to the needs of the applicant (for storage for large format artworks), the excavation is minimised.

The size of the basement and the extent of excavation does not warrant refusal

107. It is clear that the size of the basement and the extent of excavation does not comply with control 4 of Section 2 of Part 6.1.3 of the GRDCP. The limit on cut in control 2 in Section 7 does not apply to basement car parking. When considered against the ordinary needs for a dwelling house, I accept the position of the Council that the excavation is not minimised, contrary to the objectives in Section 7.

108. However, non-compliance with the GRDCP or its objectives does not compel the refusal of a development application. The GRDCP is a mandatory consideration pursuant to s 4.15 of the EPA Act and its provisions are entitled to significant weight, but it is well established that they cannot be determinative of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]). Section 4.15(3A)(b) of the EPA Act imposes a positive obligation on the consent authority to consider alternative solutions to achieve the objectives of standards in a development control plan, but it does not impose an obligation to refuse a development application that neither complies with the standards nor achieves their objectives.

109. As such, Part 6.1.3 of the GRDCP cannot operate to mandate or compel the refusal of a development. Instead, the Court, exercising the functions of the consent authority, retains a discretion as to whether or not to grant development consent in the event of a non-compliance with a development control plan. In the circumstances of the proposed development, I consider that the large size of the basement and the corresponding excavation is not sufficient to warrant refusal of the development application. I reach this conclusion for the following reasons.

110. Firstly, there is no streetscape or character impact from the size of the proposed basement and the extent of excavation. I accept the evidence of Mr Neustein that only visible aspects of development can contribute to streetscape impacts, and from the public domain the below-ground level will appear only as a basement garage, which is acceptable in the context of a low density residential area.

111. Secondly, I consider that, based on the geotechnical report, there will be no adverse impacts on adjoining properties as a result of the extent of excavation. The criticisms of Ms Chikkerur concerning the geotechnical report cannot be accepted in circumstances where she has no expertise in geotechnical engineering. The report makes it clear that any vibrations, if carried out in accordance with the report, will be below the threshold levels for building damage on adjoining properties.

112. Thirdly, the Council has not raised any contention concerning the drainage of the groundwater from the site, which is addressed in the geotechnical report and by a proposed condition of consent in the without prejudice conditions. The geotechnical report sets out the requirements for dealing with groundwater. Consistent with the report, proposed condition 8 requires, prior to the issue of a construction certificate, design changes to provide a suitable drainage method for subsurface waters and drainage around the basement walls. The applicant has agreed to that condition.

113. Fourthly, each level of excavation is within the footprint of the works on the levels above and at least 1208mm away from the boundary with adjoining properties. In circumstances where the parties have agreed that the first floor balcony should be redesigned to increase its setback to the front boundary to 6.37m, the lower basement will protrude beyond the floorplate of the ground and first floors by 1.17m at the front of the site. Nevertheless, due to the topography of the site, the excavation for the lower level of the basement is still within the footprint of the slab above, including at the front area, where the slab above provides the level entrance to the dwelling. The fact that excavation is limited to the footprint of the above-ground works is a measure of acceptability, consistent with Control 1 in Section 7 of Part 6.1.3 of the GRDCP.

114. Fifthly, a legitimate use of the basement has been identified that is consistent with the residential purpose proposed in the development application. It is for the storage of large format artworks, as well as for a dark room and the storage of art supplies.

115. Further, I agree with Mr Neustein’s observation that the creation of a precedent for large basements is unlikely, due to their cost. However, if that is how future residents wish to increase storage on their property, then each application would be assessed on its merits to ensure that it is acceptable in context and has no adverse impacts. Accordingly, I do not accept that the potential for an adverse precedent for basements that exceed the controls in the GRDCP is a reason to refuse the proposed development, particularly where the basement has no impact.

116. For those reasons, notwithstanding that there are breaches of the GRDCP, I am not persuaded that there are any detrimental impacts that will be occasioned by the proposed excavation and the size of the basement, and, as such, neither of these matters warrant refusal of the development application.

Development consent should be granted

117. For the reasons set out above, none of the contentions raised by the Council warrant refusal of the development application. The proposed development is permissible on the site, complies with the relevant development standards, and has acceptable impacts. Based on the geotechnical report, I have considered the matters in cl 6.2 of the GRLEP. I am satisfied that the essential services required by cl 6.9 of the GRLEP are either available or adequate arrangements have been made to make them available when required. Further, I am satisfied of each of the matters in cl 6.12(4) of the GRLEP concerning landscaping and privacy.

118. I have considered the provisions of the GRDCP, and determined that there is either compliance with those provisions or the non-compliance does not warrant refusal of the development application. Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential use, it is unlikely to be contaminated.

119. As such, there is no basis upon which to refuse the development application, and it should therefore be granted, subject to appropriate conditions of development consent.

Conditions of consent

120. There is a dispute between the parties on a number of the conditions of consent. The applicant opposes the following conditions sought to be imposed by the Council:

• A deferred commencement condition requiring an amended geotechnical report “regarding groundwater considerations”.

• A deferred commencement condition requiring changes to the stormwater design to remove any conflict between the stormwater plan and the landscaping plan regarding the proposed trees within the onsite detention basin, and two operational conditions to require that the stormwater infrastructure “must not conflict with the planting of all trees and other vegetation”.

• A deferred commencement condition requiring a weir to the onsite detention system, in the following terms:

“Provide a weir to the OSD system with adequate freeboard to the building finish floor level (minimum 250mm) for example with additional protection such as adding brick layers to the surroundings of the water storage area or similar.”

• Conditions requiring trees to be planted at a minimum of 3m away from any boundary or structure (condition 23(a) and 42(a)).

• A condition preventing any grade changes within the TPZ of any tree to be protected (a sub-set of condition 25).

121. In addition, the applicant disputes the wording of the condition requiring the amended plans for an increased setback for the first floor balcony. The applicant seeks wording that allow the plans to be provided to the certifier, without any approval process, and prescribes plans “providing an increase in the front setback of the first floor balcony of dwelling 1 by at least 1.17m”.

122. In relation to each of the above, I make the following findings.

123. Firstly, the deferred commencement condition requiring an amended geotechnical report “regarding groundwater considerations” lacks clarity and is not supported by evidence of a geotechnical engineer that something is lacking in the geotechnical report concerning groundwater considerations. As set out above, the drainage of the groundwater from the site is addressed in the geotechnical report and by a proposed condition of consent in the without prejudice conditions.

124. Secondly, the deferred commencement condition requiring changes to the stormwater design to remove any conflict between the trees and the stormwater infrastructure is vague, lacks certainty, and is unnecessary in circumstances where the stormwater engineer who designed the stormwater concept plan has indicated that the onsite detention basin can accommodate the trees proposed, and where Mr Tesoriero considers that the area is sufficient to enable the plantings to occur. The alternative condition proposed by the applicant is instead sufficient to deal with the conflict identified, which is an operational condition as follows:

“The planting of trees and vegetation in the front setback is to be supervised by the Applicant’s landscape expert, in conjunction with the stormwater engineer, so as to ensure no conflict with the proposed OSD and stormwater infrastructure, in accordance with Council’s stormwater policy.”

125. Thirdly, the deferred commencement condition requiring a weir to the onsite detention system lacks clarity about what is actually sought, and is not supported by evidence from a stormwater engineer as to its appropriateness.

126. Fourthly, the conditions requiring trees to be planted at a minimum of 3m away from any boundary or structure, and preventing any level changes within the TPZ of retained trees, is totally contrary to what is sought in the proposed development, which nevertheless includes the retention of significant trees and the planting of trees. There is no evidentiary basis for either of those requirements.

127. Finally, I accept the wording proposed by the Council for the condition concerning the increase to the first floor balcony setback for dwelling 1. The plan should be approved by the appropriate person in the Council, and I prefer the Council’s wording, which makes it clear that the amendment is to the front setback of the first floor balcony by increasing the setback.

128. The conditions of consent provided by the parties have been amended to reflect my findings above, and are contained in Annexure A to the orders below. In Annexure A, I have also removed references to attached documents that are not actually attached, and changed a cross-referenced condition in condition 57 from condition 19 to condition 20.

The final orders

129. The Court orders that:

1. The appeal is upheld.

2. Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1, 2, F and G are returned, and the remaining exhibits are retained.

J Gray

Commissioner of the Court

Annexure A

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Amendments

23 January 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) Annexure A is amended to correct the date of determination.

Decision last updated: 23 January 2024