Klaric v Mosman Municipal Council

[2014] NSWLEC 1156

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Klaric v Mosman Municipal Council [2014] NSWLEC 1156

Hearing dates:

28 July 2014

Decision date:

28 July 2014

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is upheld.

(2)Consent is granted to this development modification application 8.2006.21.4 in respect of consent for a dwelling house at 69 Parriwi Road, Mosman subject to the conditions in Annexure A.

(3)Exhibits may be returned except 1, 3, 4, A, B, C, E and F.

Catchwords:

Development modification - Retaining walls adjacent to adjoining property

Legislation Cited:

Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

Robert and Leonie Klaric (Applicants)

Mosman Municipal Council (Respondent)

Representation:

Mr C McEwen (Applicant)

Ms J Walsh (Respondent)
Wilshire Webb Staunton Beattie Lawyers (Applicant)

Pikes & Verekers Lawyers (Respondent)

File Number(s):

10158 of 2014

Judgment

1. This appeal concerns an application under section 96(8) to modify a Court approved development for works associated with a waterfront property at 69 Parriwi Road Mosman. The site is steeply sloping from Parriwi Road to the waterfront and during the course of construction of the dwelling; approval was given to erect a large crane on adjacent council property.

1. The modifications are as stated in the Statement of Facts and Contentions and include:

• New retaining wall to the southern boundary;
• New retaining wall to the western boundary;
• Re-configuration of the structural support wall beneath the driveway entry slab;
• Adjustment of window openings and external glazed door openings;
• Flat roof to stairwell;
• Dumb waiter replaced with lift;
• Adjustment of garage slab and inclinator landing upper slab levels;
• Blade support wall to stairs descending from inclinator upper landing level added to Drawing OA-04J (previously omitted);
• New bin room with timber gate;
• Deletion of access stair and reconfiguration of emergency access stair;
• Pool steps changed.

1. Notice of the appeal was given to the neighbours resulting in submissions covering:

• Excessive delays in progressing the construction works
• Adverse impact on amenity arising from site works
• Inadequate protection of neighbouring properties as a result of excavation on the subject property
• Inadequate compliance with the Construction Management Plan

1. At the view, the various modification elements were explained and it is apparent that the area along the southern boundary, adjacent to the existing Koppers log fence, at 67 Parriwi Road is the main component.

1. Submissions were made on behalf of the owners of No 67 concerning the movement of the Koppers log fence along the common boundary and possible damage to their property.

1. However, the proposed retaining wall along this southern boundary is designed to address this issue. Insofar as the plans show the new piles being placed adjacent to the common boundary, questions regarding the satisfactory construction of this wall were answered by the applicant's consulting structural engineer, Mr M Blaszczakiewicz as follows:

(1)   No design offset from the boundary for contiguous shoring piles was allowed in the design. It is expected that nominal construction tolerances will be maintained to ensure that no encroachment into the adjoining site exists. The tolerance proposed is +50mm/-0mm, i.e. piles will be constructed up to 50mm away from the boundary to prevent the encroachment.

(2)   The contiguous shoring piles have been designed to withstand the full effect of the soil on the adjoining site, including the soil behind the existing copper log timber wall. The design includes and takes into account the soil parameters from geotechnical investigation. In this regard, the proposed shoring construction will not undermine or disturb the existing copper log wall.

(3)   The soil behind the proposed shoring wall is generally an easily draining fill and alluvial material. Therefore, no drainage behind the shoring is required. Weep holes will be maintained between shoring piles to release water pressure behind the shoring.

1. In the absence to any challenge to this engineering evidence, I accept it on the basis that the proposed works can be undertaken in a safe manner, which protects and does not encroach/interfere with the adjoining properties.

1. I understand the parties have agreed on all the other modification issues and in these circumstances then, I consider that the modification application should be approved on the basis of the agreed conditions.

Court Orders

(1)   The appeal is upheld.

(2)   Consent is granted to the modification of this development modification application 8.2006.21.4 in respect of consent for a dwelling house at 69 Parriwi Road, Mosman subject to the conditions in Annexure A.

(3)   Exhibits may be returned except 1, 3, 4, A, B, C, E and F.

R Hussey

Commissioner of the Court

Amendments

03 September 2014 - para 1 deleted the words 'was lodged against council's deemed refusal of a s 96 for' - added 'concerns an application under section 96(8) to modify a Court approved development for'para 4 deleted the words 'proposed Right of Way (ROW)' added the word 'area'

Amended paragraphs: 1 and 4