Firoz Esskandarpor v Lithgow City Council

[2019] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Firoz Esskandarpor v Lithgow City Council [2019] NSWLEC 1126
Hearing dates:	06 March 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders are: 1) The appeal is dismissed. 2) Development Application DA182/17 for a new dwelling and secondary dwelling or home office at 29 Mort Street, Lithgow is refused. 3) The exhibits are returned other than Exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION: insufficient information in order to assess development application – requirement for structural engineering details to confirm ability to retain proposed structures and adjoining dwelling; bushfire requirements – applicant focused on alleged past activities on the site and of the Council and neighbours rather than the requirements of the application – Court cannot be satisfied on the basis of the evidence provided as to the structural works required to be undertaken and their impact on the development – applicant raises concern with history, process and Court – applicant did not attend hearing
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lithgow City Local Environmental Plan 2014 Uniform Civil Procedures Rules 2005
Cases Cited:	Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Texts Cited:	Australian Standard AS3959-2009 Construction of buildings in bushfire prone areas Land and Environment Court Practice Note – Class 1 Residential Development Appeals
Category:	Principal judgment
Parties:	Firoz Esskandarpor (Applicant) Lithgow City Council (Respondent)
Representation:	Solicitors: J Fan, Pikes & Verekers Lawyers (Respondent)   Other: F Esskandarpor (self-represented)
File Number(s):	2018/282318
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of a development application, DA 182/17 (the application), by Lithgow City Council (the Council) for a new dwelling and secondary dwelling, also referred to by the applicant as a home office, at 29 Mort Street, Lithgow (the site).

Background to the proceedings

2. The matter was listed for conciliation and hearing before me under s 34AA of the Land and Environment Court Act 1979 (the Court Act). Conciliation commenced in Lithgow on February 4, 2019.

3. Conciliation undertaken is required to be confidential under the Court Act. However, it is relevant for context, and because a document purporting to record what occurred during the conciliation was filed with the Court by the applicant, to record that the conciliation was adjourned on the understanding of both the Court and the Council that the applicant, Mr Esskandarpor, a litigant in person, would obtain the necessary structural engineering documentation required to support the application in order for the Council to agree to enter into an agreement under s 34 of the Court Act.

4. Following the adjournment, the applicant wrote to the Court advising that this documentation would not be provided and raising concerns, amongst other things, about the conduct of the conciliation and in terms of my ability to deal with the appeal.

5. On the basis of this advice, the Council sought an urgent reconvening of the conciliation given agreement now appeared unlikely. Accordingly, conciliation was twice listed by the Court for telephone mentions but was adjourned due to the non-appearance of the applicant. The Court then wrote to the applicant (with a copy provided to the Council) advising of the matter’s listing on March 6, and setting out the consequences of the applicant not appearing. This included automatic termination of the conciliation and the hearing proceeding forthwith as required under s 34AA of the Court Act, or potentially the Court dismissing the proceedings under rule 13.6 of the Uniform Civil Procedures Rules 2005.

6. By submission (filed March 5, 2019), the applicant acknowledged receipt of the notices of all listings of this matter. He also advised he would not be attending the listing on March 6 (and indeed he did not attend nor did he answer his phone when rung by the Court).

7. Accordingly, in accordance with the Court’s advice to the parties, the conciliation was terminated and, as required by s 34AA(2)(b)(i) of the Court Act, the matter proceeded to a hearing forthwith before me, in the applicant’s absence.

The proceedings

8. Given I was unable to obtain the applicant’s agreement to have regard to what occurred during conciliation, including the site visit, the hearing was held by telephone on the basis of the material filed to the extent it was relevant. As Mr Griffiths, representing the Council, was on leave, the hearing was attended by Mr Fan of his office.

9. I indicated that I was intending to determine the appeal that day as an extemporaneous decision; namely that I would give a verbal decision and, once the transcript was available, I would formalise that in a written judgment (this being that judgment). Further, that I would provide background to the conciliation and to the appeal drawing from the material filed (this background being found at [1] to [8]).

Recusal Consideration

10. From documents filed with the Court, the applicant was critical of my role in proceeding indicating, in effect, that I should recuse myself from hearing this matter on the basis of his view of my competency during conciliation and my refusal to answer his questions as to the history of what had occurred on the site.

11. Given the applicant was not in attendance at the hearing, the Council considered, and I agreed, that I should respond to the proposition of my recusal before proceeding.

12. Specifically, Mr Fan submitted that, for procedural fairness because the applicant is a self-represented litigant and whilst obviously the Court is entitled to move straight to the hearing of the matter, the Court might view the submissions made by the applicant as a de facto or informal application for me to recuse myself on the apprehension of bias. That is, on the basis of the matters raised in his submissions and as the applicant is not legally trained and not expected to know the formal basis of seeking such an order, the Court might be wary or mindful of that being, in effect, what the applicant's submission or application to the Court is.

13. If that is such an application for recusal, Mr Fan submitted that the Council was of the position that it would be rejected given the baseless nature of the allegations and particularly the grounds for the apprehension. The grounds were not particularly cogent; they appear to be concerned with the procedural history of the matter, including the background between the applicant and the Council's historical handling of the matter affecting his land (the site) and the neighbouring land at 31 Mort Street.

14. Mr Fan further stated that there is an allegation that the Council has not done the right thing in appointing an expert witness but that again is baseless. There is a whole host of assertions as to why the Court is biased or otherwise not able to determine the matter in an impartial way but the Council’s submission was that the Court would not accept that there is an apprehension of bias.

15. Mr Fan indicated that the principle as to whether the Court would find whether there is an apprehension of bias is set out in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner). The principle known as the "double might rule" is whether a judge, in this case a Commissioner, is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

16. The Council's submission was quite clearly that a fair minded lay observer would not reasonably apprehend that the Court might not bring an impartial mind to the resolution of the matter. So as to treat the applicant's submissions by giving the best interpretation (of them), and if the Court was minded to consider those submissions as an application for recusal, the Council would certainly submit that there is no evidentiary bases to support that application.

17. I advised that, in the Court’s letter to the applicant dated February 25, 2019, the applicant was advised that he could attend the proceedings by phone or in person, that I had received and reviewed his most recent submissions, and that he would have the opportunity to raise with me the issues that he had set out in his documents and to make further submissions on those concerns if he wished. Had he attended, I indicated that it was my intention to ask him why he thought I had an apprehension of bias which is clearly what he is saying in his submissions.

18. I noted the Council's comments that the allegations were not well founded. I indicated what I would have also said to the applicant (had he attended) was: firstly, he references (his version of) what happened in conciliation which is supposed to be confidential and without prejudice and not to be documented; secondly, it is his recollection of what happened and I was sure Mr Griffiths would have had a different recollection of what I said and what was said.

19. In any event, I disputed all of the applicant’s allegations as to what I did or said (that would lead to a suggestion of bias). Notwithstanding, the applicant had the opportunity to come to Court and tell me why he thought I should not hear the matter. He chose not to do so.

20. Despite what the applicant stated in his submissions, I am not a self-appointed Commissioner and I have the qualifications required (to deal with the matter). Further, I have no personal interest in the applicant or his land, nor any conflicts of interest in dealing with the Council. Therefore, on the basis of what he submitted, I see no basis in evidence for me recusing myself. He has chosen not to speak on the issue. The Council has. I considered that the end of the matter.

21. However, in these written reasons, noting the Council’s comments and my subsequent consideration of Ebner, I reaffirm that there is and was no basis for recusing myself from hearing the matter. In particular, I had and have no reason not to be impartial. A fair minded observer would not apprehend, based on my dealings with the parties, that I would not bring an impartial mind to resolving the proceedings.

22. The ‘application’ for recusal was therefore dismissed and the hearing proceeded before me with attendance only by the Council.

Documents considered

23. I indicated that I intended to rely on the documents filed in the proceedings by both parties.

24. Mr Fan tendered the Council’s Statement of Facts and Contentions (SFC) filed 4 October 2018 (Ex 1), the Expert Report of the Council’s Town Planner, Mr Nash filed 15 January 2019 (Ex 2), the Council’s bundle of documents filed 18 December 2018 (Ex 3), and draft conditions of consent filed 8 December 2018 (Ex 4).

25. I also noted, and indicated I would have regard to, an Outline of Submissions filed by the Council with the Court on 5 February 2019, agreed to by Mr Fan.

26. I then tendered what I, and the Council, considered to comprise the relevant documents filed with or sent to the Court by the applicant.

27. The first document tendered was the Class 1 Application filed with the Court on 14 September, 2018, including supporting material as listed by the applicant; being plans, background documents and a self-prepared Statement of Environmental Effects (SEE) (Ex A). The second was a document titled ‘Additional Information’ filed on February 5, 2019 and referred to by the applicant as his SFC in reply (Ex B). The applicant’s own response to the Expert Report of Mr Nash became Exhibit C.

28. I indicated that I would not allow into evidence a document lodged by the applicant dated February 18, 2019 titled ‘Conciliation and site visit’. I did not have the applicant’s consent to have regard to what happened at the site or during other aspects of the conciliation. I also did not accept the applicant’s account of what happened, and I doubted the Council (representatives) or the Council’s expert, Mr Nash (who were also in attendance), would accept the applicant’s account of what happened. (The only Council representative now at the hearing, Mr Fan, was not in attendance at the conciliation).

29. I also indicated that I would not be responding to the applicant's derogatory comments or questions as to my character or competency to determine the matter, which I have already discussed. (Nor would I respond to comments made against the Council representatives of a similar vein in terms of their actions in dealing with the application and the applicant).

30. I then referenced a document filed by the applicant titled ‘Written Submission (Applicant request for the Court response)’ dated 18 February 2019. I indicated that, to the extent that the Court is required to answer the applicant’s queries in that document, these queries have been responded to (by the Court) or would be in my findings.

31. This ‘Written Submission’ document raises a series of questions for the Court's response. Being unrelated to the determination of the application before the Court, I indicated that I would not be responding to these questions. I also noted that it is for the applicant to respond to questions of the Court rather than the reverse. However, to the extent that the ‘submission’ contains material relevant to the application I indicated I would (and I did), consider the document.

32. The final document ‘filed’ by the applicant was titled ‘Applicant Second and Final Written Submission’ (lodged with the Court on 5 March 2019). As this document references receipt of Court notices of listings and confirms the intent of the applicant not to appear at the hearing, it was tendered as Exhibit D. Again, I indicated that, to the extent that the submission’s contents, including the applicant’s questions, were relevant to the hearing, I would consider these (but only these) contents.

The contentions and the experts

33. Having dealt with the exhibits, I invited Mr Fan to advise if there was anything the Council wished to say by way of opening, other than what had already been said.

34. Mr Fan noted that the Council’s SFC raises three discrete matters as requiring further information. Those contentions are addressed in the expert report of Mr Nash (Ex 2). Mr Fan submitted that neither the additional information filed (by the applicant) nor his response to Mr Nash’s expert report sufficiently addressed those contentions so as to allow the Court, as the consent authority, to make a proper determination or allow an assessment of the application under s 4.15(1) of the EPA Act.

35. Mr Fan submitted that there is a plain deficiency in documents or information required to allow a consent authority to determine this application by anything other than a refusal.

36. I noted that Mr Nash's Expert Report (Ex 2) was the only expert report filed in the proceedings, albeit it is limited to his expertise as a town planner not as a structural engineer. I advised that I did not need to call Mr Nash and Mr Fan confirmed he was not required to be called by the Council.

37. The applicant had not proposed an expert to respond to Mr Nash’s evidence nor, as I understand it, is Mr Esskandarpor a qualified town planner. Therefore, Mr Nash's expert evidence in the field (of town planning) was not disputed. I also advised that I did not accept the applicant's written dismissal of Mr Nash’s credibility or evidence (found in various locations at Ex C).

38. Neither party sought to call on, nor submit an expert report from, a structural engineer. Nor is the applicant, on his previous advice to me, a structural engineer.

39. The Council raised three contentions, as mentioned, namely: inadequate site information; inadequate survey information; and inadequate detailed plans. I indicated my intention to briefly summarise the evidence on these contentions and to respond to them in my findings, starting with providing (relevant) background.

Background to the site and its context

40. The site comprises Lot 4 in DP1099264. It is situated on the south western side of Mort Street in Lithgow, has an area of 1,133m² and is currently vacant. The site has been the subject of extensive earthworks (understood to have been undertaken to provide a house site approved for the previous owner).

41. These earthworks directly impact on the dwelling adjoining the north-western side boundary, being 31 Mort Street.

Summary of the applicant’s position

42. As I indicated I would do (but which I did not do during the hearing in the absence of the applicant) I now, at [43] to [52], summarise the relevant aspects of the applicant’s documents, including in response to the Council’s contentions. This are derived from the filed material accepted by the Court as relevant evidence or submissions (Ex A to D).

43. The development application (part of Ex A) was submitted by the applicant to the Council in July 2017. The description of the proposal on the application form is “development of a two storey dwelling and possible single storey granny flat in future”. The application was accompanied by plans prepared by Ian Laing Drafting dated May 23, 2017. These comprise a site plan showing a ‘proposed new residence’ and ‘proposed Versiclad’ granny flat’ (Plan 1A), a site plan with sediment control notes (Plan 1B), a plan showing ground and first floor plans, a plan referenced as ‘details’ including sections (one of which shows a retaining wall at 4.5m), a plan of elevations, a BASIX certificate, and a sheet of specifications.

44. There are two relevant notes on Plan 1A. The first references a proposed retaining wall to engineering specifications on the common boundary with 31 Mort Street and the second, a proposed retaining wall to engineering specifications adjoining 27 Mort Street, at the rear of the proposed granny flat.

45. The application includes a two page SEE prepared by the applicant. The SEE contains limited details. These details include a summary of the proposed development (referenced as a ‘dual occupancy’) and a statement that the development will be constructed on the ‘land partially levelled’ as a ‘build area’ by the previous owner some 6 years ago. The SEE concludes that the development would therefore have little environmental impact ‘partly retaining the natural feature and woodland characters mainly on the rear of the block’ (Ex A, SEE p2). Submitted with the application is a ‘bushfire assessment report’ being the applicant’s completed pro-forma report in the template form supplied by the Council.

46. With the Class 1 appeal form filed with the Court (also part of Ex A), documents supplied by the applicant included:

1. A Pioneer brochure on heavy duty retaining wall systems including an installation guide.

2. A brochure on how to build a ‘Versaloc’ walling system.

3. Two A4 survey plans, one dated 2011 and the other 2018.

4. A copy of an approval issued by the Council to the former owner, Mr Gray, for a dwelling on the site including the conditions of consent. (Although unable to confirm this with the applicant, it is understood that the copies of the “Versiclad’ plans dated 2014 – filed with the Class 1 appeal and referenced by Mr Nash – comprise that approved development).

5. An order issued by the Council on Mr Gray in October 2015 requiring Mr Gray to comply with condition 13 of his consent. Condition 13 required, in summary, that all excavation and backfilling associated with the approved works must be executed safety in accordance with appropriate professional standards. It notes that the owner of the adjoining lot is not liable for any part of the cost of work carried out either on the site being excavated or on the adjoining lot. The reasons for the order are that the works were not being carried out in accordance with condition 13 and that excavations to the south-west and north-west were not sufficiently retained to prevent them from becoming dangerous to the property known as 31 Mort Street. The order includes a schedule of work requiring that, prior to commencing (rectification) work, design details prepared by a structural engineer are to be submitted providing for the stabilisation/support of 31 Mort Street. The stabilisation/support is to be in accordance with existing structural details and approved engineering details prepared by McNiven Consulting in 2011 in respect of the rear north-east facing tiered retaining walls. Stabilisation works were not to cause further excavation towards the rear of the site and were to accord with approved engineer’s details in respect of 31 Mort Street along the common boundary.

1. A certificate issued by the Council in September 2016 under then s 121ZP of the EPA Act noting outstanding orders attach to the site. The certificate references orders issued in 2015 and 2016. A letter is also included to Mr Gray from the Council sent in 2015 noting the Council’s concern that no structural engineering documentation has been submitted, that the works were incomplete, and that failure to complete the works in the required timeframe may result in legal action being taken.

47. In summary, the applicant’s filed submissions focus on: the actions of the former owner of the site, Mr Gray, in undertaking unauthorised earthworks on the site and in not complying with Council orders in relation to these works; and on the Council in not taking action against Mr Gray for not complying with those orders.

48. The applicant claimed that the Council had in effect ‘struck a deal’ between Mr Gray and the owners of 31 Mort Street to enable those owners to develop their dwelling, including too close to his boundary, by facilitating the earthworks that exist on his site today and which has led to the current retention issues he faces in now trying to develop the land. In his view, the Court and the Council should be responding to these past activities and have regard to them in determining the application. Exhibit A contains a number of letters dealing with this issue.

49. The applicant claimed that the insufficient details raised by the Council had nothing to do with his development application but related to the former application and activities of the former owner and the Council. However, the Council had not provided (to him) any information as to how the previous applications had been assessed and why the excavation was allowed despite his requests for these details. His claims included that the Council enabled dumping of waste from 31 Mort Street onto his property (prior to his ownership) in the absence of any written agreements for this work.

50. In Exhibit B, the applicant quotes from a letter from the Council to him in October 2017 referencing the placement of fill on the site which states that the Council did not give approval for long-term deposition of fill onto 29 Mort Street but ‘agreed in consultation with both owners of 29 and 31 Mort Street to it being placed on 29 Mort Street on the understanding that the fill should be maintained until proper retaining walls were constructed’. However, the applicant claimed that the Council had failed to provide any recorded evidence that supported this claim.

51. The applicant also raised concerns that, in these proceedings, the Council had replaced their expert three times with the leave of the Court. This was despite his request that the Court not grant this leave thus infringing his legal rights. He had sought the involvement of Council officers who had been directly involved in development applications for both his property and 31 Mort Street.

52. In response to Mr Nash’s expert report, the applicant (in Ex C) raised questions as to how 31 Mort Street could have been approved given the retaining implications for his site. He claimed the issues with the accuracy of the survey plans related to illegal dump waste on his site approved by the Council and not resolved by the Council and that no survey plans could consequently ever reflect the actual site details. He also questioned Mr Nash’s knowledge of pre-design prefabricated home construction.

The Council evidence on the contentions

Contention 1 – Inadequate Site Information

53. In the SFC the first contention raised by the Council, being the main contention, is that there is inadequate site information, stating (Ex 1, p6):

"The development as proposed and detailed on this site does not adequately address the likely impacts on the adjoining dwelling at 31 Mort Street (as):

1) The site is extensively excavated to a maximum depth of approximately 4-5 metres on the north western boundary with 31 Mort Street;

2) The location and construction of a retaining wall on this boundary is critical to the stability and protection of the adjoining dwelling; and

3) Accurate site information is required to determine the existing levels, building platform, excavation, filling, existing retaining walls and proposed retaining walls including heights. The floor levels of the proposed dwelling and outbuilding must be indicated on the plans, together with the extent and heights of the required retaining walls around these buildings."

54. The applicant was provided the opportunity to secure the required services of a structural engineer (but he chose not to do so). No further documentation was provided to the Court to address this aspect of the contentions nor was the required information provided to support the application.

55. Mr Nash summarised in his expert report (Ex 2, p3) what he considered the essential issue in the proceedings, being the provision of adequate information in support of the development.

56. After lodging of the application in July 2017, the Council issued 4 items of correspondence to the applicant requesting further information including but not limited to:

1. An accurate site plan and levels;

2. Details of retaining walls at the rear and along the common boundary with 31 Mort Street;

3. Architectural floor plans, elevations and sections of the proposed outbuilding, which had been variously called a secondary dwelling and a home office;

4. Structural engineering details of the proposed ‘Versiclad’ wall and roof construction of the outbuilding including wind and snow loading details; and

5. Details for the dwelling and the outbuilding in compliance with the Australian Standard AS3959-2009 Construction of buildings in bushfire prone areas (AS3959).

57. The applicant provided additional information in response. Having reviewed the information provided, Mr Nash's evidence was that there were still two main issues remaining. Firstly, the absence of adequate details on the means of erecting walls to support the adjoining residence at 31 Mort Street and the existing excavated area at the rear of the proposed buildings on the site; and secondly, inadequate survey details of the site, that being the second contention raised by the Council.

58. Mr Nash, as a town planner not a structural engineer, had reviewed the limited survey levels available which indicated to him that a retaining wall of a height of up to 5 metres was required along the common boundary with 31 Mort Street to ensure the ongoing stability and protection of that residence. He also noted that the retaining wall details shown in drawings provided by the applicant, prepared by McNiven Consulting (contained in Ex A) only provided for a maximum retaining wall height of 1,600 millimetres and with a base foundation width of 1,000 millimetres. Therefore the proposed retaining wall could not address the issue of (requiring) retaining walls with a height of some 4.5 metres.

59. The applicant in a letter of response dated 31 August 2017 (in Ex A) stated that:

"The proposed retaining wall will be constructed in incremental heights along the north-western boundary to the height of 0.4m starting approximately from the dwelling frontage level, extending about 15m towards the rear south-western boundary and finishing at an approximate height of 4m to 4.5m.

The purpose of building this long retaining wall is twofold, namely, protecting the north-west located adjacent property from future erosion and preventing any adverse impacts on this property during and after the build of (the) proposed dwelling. (An) attached … new plan (1b) provides ground and first floor levels, retaining wall structure profiles, related engineering details and wall heights. (Plan 1c) provides Boral actual engineering construction method and retaining wall details using the reinforced core-filled 200mm series”.

60. A ‘Versaloc’ brochure was also provided.

61. However, Mr Nash was critical that no details were provided as to how high the 200mm series retaining walls could be built. He had investigated the ‘Versaloc’ walling system which indicated that a maximum retaining wall height using this system would only be to 2.6m, although in the Pioneer brochure that the applicant had provided, the maximum height could be up to 3m. Irrespective, in terms of an engineering solution provided by the applicant for a required retaining wall up to 4.5m high along the common boundary and across the site at the rear, the sort of information provided was clearly inadequate as none of the walls proposed by the applicant were (i.e. could be built) to the height required.

62. Mr Nash's conclusion was therefore that there was inadequate information upon which the Court could make a determination with any certainty, given the number of solutions proposed which may have requirements impacting on the location of the proposed buildings on the site. Specifically, it was not possible for any certainty in any decision on the basis of the material provided (by the applicant). In particular, there was inadequate information provided in respect of the two retaining walls in order to securely retain existing excavated areas on the site and to protect the stability of the residence at 31 Mort Street.

Contention 2 – Inadequate survey information

63. The second contention (a subset of the first) was the adequacy of the survey plans. The applicant did provide a new survey plan (in responding to this contention). However, Mr Nash was critical of that plan also (Ex 2, p4). He claimed that the survey was based on old survey material but attempted to reflect the condition of the site as at June 2018. However it was deficient in a number of respects, in terms of what is required to be provided under the Court's Practice Note – Class 1 Residential Development Appeals (the Court’s Practice Note).

64. Firstly, the survey did not provide any spot level details within or adjoining the proposed building footprints, required in order to assess what earthworks are required to facilitate the proposed dwelling and outbuilding. Secondly, the survey did not indicate the location of the dwelling south-east of the site (at 27 Mort Street), nor details of fencing on the common property. Thirdly, the survey grossly misrepresented the topography of the site at the rear where the land slopes steeply. (The survey showed the site falling in this location). In his expert report, Mr Nash includes photographs showing the steep embankment (which separates the cleared portion of the site from the vegetated area at the rear).

65. In such circumstances, Mr Nash concluded that the survey information provided with the development application was inadequate, did not satisfy the requirements of the Court's Practice Note, and provided no certainty as to the built form outcome on the site, in particular with respect to the necessary retaining walls.

Contention 3 – Inadequate detailed (development) plans

66. Mr Nash’s report states that the detailed plans of the development are ambiguous and do not provide adequate information to allow assessment (Ex 2, p6). The plans firstly depicted the outbuilding as a secondary dwelling/granny flat. However, the applicant subsequently advised the Council by email on 30 July 2017 that this outbuilding was to be used as a ‘home office’. The applicant was requested (by the Council) to provide a floor plan and indicate the proposed use of the outbuilding but this was not provided.

67. The Council was concerned that the ‘Versiclad’ plans were inadequate as they did not show accurately scaled floor plans, did not indicate floor levels above ground, were not drawn with clarity, and were inconsistent. Further, the McNiven Consulting plans show retaining walls only being up to 2.4m however, the cut at the rear of the building is some 4.5m. Finally, the ‘Versiclad’ drawings supplied by the applicant in August 2017 were of a generic form and were dated 2014, which was prior to the applicant taking ownership of the site.

68. Mr Nash raised concerns (that the application) was deficient in terms of having regard to bushfire risk (referencing AS3959). In particular, there was no means of pedestrian access to the rear of the lot because of the need for a retaining wall. Therefore he questioned how the inner protection zone could be managed in terms of bushfire risk.

69. Mr Nash did note some issues could potentially be resolved by conditions of consent, and the Council's filed conditions of consent (Ex 4) dealt with a number of these matters. However, Mr Nash indicated that his fundamental concerns could not be resolved by conditions.

Findings

70. In coming to my findings, I have had regard to what I have summarised in terms of the applicant’s documentation, the Council's contentions and the only expert evidence provided.

71. As I have indicated, much of the applicant’s filed ‘evidence’ relates to the purported history of the existing excavation and fill on the site, the Council's role in facilitating that, and the impacts that these works and the construction of the adjoining dwelling at 31 Mort Street have had on the ability for him to develop his site.

72. The history of what the previous or adjoining owners may have done on the site, and the Council's role in this, may be the subject of separate civil proceedings which the applicant may care to pursue against the Council, the former owner, or the agent who sold him the land (whilst being subject to outstanding orders issued by the Council). (There was no evidence before me however, that the applicant was unaware of these orders in purchasing the site or that the works on the site, and on the adjoining site at 31 Mort Street, would not have been evident at the time).

73. My jurisdictional role in this appeal is limited to the application for development the subject of the appeal. It is not relevant in determining the legality or merits of this application as to what the past actions of a previous owner or the Council may have been. The site exists as it exists today and I need to be satisfied that any development on it can be developed safely and in an appropriate location, having regard to the current state of the site and the proximity of adjoining development. This is to ensure the structural integrity of the proposed development for the benefit of both the applicant and of his neighbours.

74. In determining this appeal, the applicant should understand that the Court will not be responding to allegations as to how the site got to the state it currently is in or what the Council did or did not do, or should do, in that regard.

75. As indicated, the applicant was provided the opportunity to secure the services of a structural engineer (to provide the required details of retaining works associated with the development). This was why conciliation was adjourned in the first place. Whilst initially agreeing to do this, therefore enabling the application to be determined based on such advice, the applicant subsequently withdrew that offer and did not provide any further relevant material to the Court to address this aspect of the contentions (being critical information required to support the application in terms of the development proposed).

76. Such documentation would need to confirm that the retaining walls and works proposed would be structurally sound to protect not only his dwelling and his buildings but also that of the neighbouring dwelling at 31 Mort Street. It would also enable adjustment of the development footprint if required in response to any recommendations for stabilising works. The applicant advised the Court that he would not provide this information.

77. Largely, for the reasons raised in the Council's contentions and in the expert report of Mr Nash, the Court cannot support the application in its current form. Without the required expert advice and documentation of the required works to ensure the structural integrity of the development proposed on the site and existing on the adjoining site at 31 Mort Street, it would be both inappropriate and irresponsible to consent to the proposed development of the site, particularly given that such works may impact on the location, nature and design of the development of the proposed dwelling house and the secondary structure, whatever it is used for.

78. Whilst development applications can be approved, and frequently are, with standard conditions requiring the provision of structural engineering drawings as conditions rather than upfront with the application, these are for applications generally in circumstances where the ability to safely develop a site is not in question, nor a contention of the Council, and where the site does not contain excavation, what appears to be imported fill, steep embankments and significant level changes, as exist in this instance.

79. Whilst I cannot have regard to what I saw on site, being during conciliation, I can have regard to the photographs that were attached to Mr Nash's report (Ex 2, Appendix 1, photographs 1 and 4). These show the fill and excavation and that the site is extremely steep at the rear (of the build area) where it is then heavily vegetated. Clearly adequate survey information is critical in order to determine what retention works are required (similarly, the application is required to address the relevant bushfire planning requirements of AS3959, but does not).

80. As I have indicated, the applicant was given the opportunity to provide the additional required information sought by the Court, but advised he would not. This does not preclude him from pursuing that course of action in a future application.

81. However, on the basis of the inadequacy of the development application before the Court in terms of providing required supporting details of the proposed works, being retaining works in particular, including retention works to boundaries, the application is refused.

Orders

82. The Court orders are:

1. The appeal is dismissed.

2. Development Application DA182/17 for a new dwelling and secondary dwelling or home office at 29 Mort Street, Lithgow is refused.

3. The exhibits are returned other than Exhibits A and 1.

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Jenny Smithson

Commissioner of the Court

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Decision last updated: 29 March 2019