MA v Warringah Council

[2011] NSWLEC 1055

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ma v Warringah Council [2011] NSWLEC 1055

Hearing dates:

22 February 2011

Decision date:

11 March 2011

Before:

Hussey C

Decision:

The appeal is dismissed.

Development consent for works to permit the use of the dwelling at 64B Beacon Hill Road Brookvale to be used as a boarding house is refused.

The exhibits may be returned except for 1, 2 A and C.

Catchwords:

Development application; Change of use to boarding house, site suitability, retaining walls details, fire safety, accessibility, amenity, public interest

Legislation Cited:

EP& A Act 1979
SEPP (Affordable Rental Housing) 2009

Cases Cited:

GPT RE Limited v Wollongong City Council and Anor (No.4) [2008] NSWLEC 28 (29 January 2008)

Category:

Principal judgment

Parties:

Mr Wenhong Ma (Applicant)
Warringah Council (Respondent)

Representation:

Mr W Ma (In person) (Applicant)
Mr A Hudson (Solicitor) (Respondent)

File Number(s):

10749 of 2010

Judgment

Background

1. This appeal was lodged against council's refusal of a development application proposing certain works to enable the change of use of a dwelling house at 64B Beacon Hill Road Brookvale to a boarding house with 10 double bedrooms and ancillary rooms.

1. The dwelling house was approved in 2002. Subsequently a number of actions were taken because of concerns about unauthorised works and non-compliances with the conditions of consent.

1. Whilst the dwelling house could now be conditioned to comply with many of the requirements of the SEPP (Affordable Rental Housing) 2009, council contends that there are circumstances whereby the site is unsuitable for the proposed development. These circumstances arise due to a number of uncertainties with the current condition of the dwelling and the failure of the applicant to provide adequate responses to these concerns.

1. A number of contentions were identified, which are summarised as follows:

• Adequacy of plans;
• Fire safety, in terms of compliance with the BCA requirements for a Class 3 building;
• Bushfire risk;
• Internal amenity and safety concerns;
• Retaining walls adequacy;
• Unauthorised landfill;
• Stormwater disposal;
• Plan of Management;
• Waste disposal arrangements;
• Public interest, including privacy objections and traffic concerns.

The proposal

1. The works proposed for this change of use include:

(a)   Internal alteration to the existing dwelling house to provide 10 double bedrooms; 10 bathrooms/ensuite, 2 kitchens & 2 living rooms;

(b)   External alterations to selected window openings and balcony areas;

(c)   Construction of a shed within the rear setback;

(d)   Conversion of part of the existing garage at the front of the dwelling to a laundry; and

(e)   Site works for car parking, relocation of the vehicle cross over, pathways, retaining walls and ancillary works.

1. During the course of the appeal, the applicant indicated that he would also provide:

• An external fire exit path around the eastern side of the dwelling, including a small bridge over a rock embankment;
• Erect 1.8m privacy screens along the upper level balconies on the eastern faade to prevent overlooking;
• Provide a 1.8m high privacy screen along the eastern side of the reconstructed retaining wall/ driveway structure, starting at the road boundary.

The site

1. This site is described as Lot 6 DP 1035344. It has a 13.77m frontage to Beacon Hill Road and a total area of 844.2 sq m. The land has cross fall of about 4m, which has resulted site cutting and fill behind retaining walls along the western boundary in the order of 3m, together with variable height retaining walls along most of the 57m eastern boundary.

1. There is an open space area at the rear of the lot, which has been filled with material of unknown quality and is contained by retaining walls. Part of the rear and eastern boundaries adjoin vegetated open space land.

Planning controls

1. The site is subject to a number of controls including:

• SEPP (Infrastructure) 2007;
• SEPP No 55 - Remediation of Land;
• SEPP (Affordable Rental Housing) 2009;
• Warringah LEP 2000; under which the site is located within the F4 Brookvale Valley Locality;
• Draft Warringah LEP 2009;
• Warringah DCP.

The evidence

1. In response to the issues, Mr Ma provided a number of reports including building details and a BCA report, although they were not presented to the Court in the form of expert reports. They were assessed by the following experts for council:

• Mr T Colenbrander; Consulting geotechnical engineer;
• Ms A McKay; Councils building surveyor;
• Mr A White; Council's fire safety expert;
• Mr A Keller; Council's senior assessment officer.

1. As noted previously, it appears that many of detailed building upgrading works could be covered by conditions suggested by Ms McKay and Mr White. Whilst council submitted the required draft conditions to address other substantive matters also, they include some 12 deferred commencement conditions that require further details of proposed works. Consequently council submits that this indicates that there is an inadequate level of certainty to allow the proposal to proceed on this basis.

1. Notwithstanding the absence of any expert evidence from the applicant, Mr Colenbrander and Mr Keller were questioned about their concerns on the adequacy of the proposal detailing

Geotechnical

1. Mr Colenbrander expressed particular concerns about the structural integrity of the existing retaining walls around the property and the additional structures proposed in the DA plans in Exhibit A (See Attachment AA). However his stated conclusions are somewhat difficult to apply because of the constant changing and uncertainty of the proposed works by the applicant and the lack of associated specifications.

1. Notwithstanding this, it is apparent to me from his evidence that he is not satisfied the applicant has provided sufficient details to merit approval of the structural works. My summary of the particular items is:

.1 Western retaining wall (W1); whilst the northern part of this western boundary retaining wall has been buttressed, a considerable section to the south of this is not considered structurally adequate due to uncertainty with the reinforcing. Consequently the stability of the proposed 1.8m Colorbond privacy fencing atop this retaining wall has not been established.

.2 Eastern retaining (W3); This wall is currently considered unsafe and the proposal to erect either a 1.8m Colorbond fence or the modified 1.8m glass shutter and brick fence, together with a car safety fence would exacerbate this situation. Insofar as the applicant intends to replace this retaining wall insufficient details have been provided to assess its structural adequacy.

• The amended design does not incorporate an appropriate vehicle barrier along this wall as required by BCA requirements.
• Eastern wall (W5); this is a proposed new section of the eastern retaining wall for which no engineering details have been submitted to allow accurate assessment.
• Suspended access slab; this concerns the alignment and basic engineering details for this essential fire escape route. As the proposed structure, denoted as "Bridge over the hole" is anticipated to be about 1.8m high, Mr Colenbrander says the complete lack of details is unsatisfactory.
• Waste storage area; this proposed "covered rubbish bin area" facility is located between the western boundary and the existing garage. However this placement has not taken into account the amount of cutting required along the common boundary to ensure that structural damage to the adjoining property, particularly the elevated swimming pool. Mr Colenbrander requires more details prior to recommending consent.
• New balconies on eastern elevation; more details are required to ensure the balconies and external fire stairway are adequately supported.

Planning issues

1. Plan of Operation (POM); Mr Keller says that the provision of a satisfactory POM is essential to identify the "modus operandi" of the boarding house. This is to give a high level of assurance to council and the neighbours that the boarding house will be run in a professional manner and on a "good neighbour" basis. But he considers the subject POM unsatisfactory because it has apparently been uplifted from another location and is not site specific. In his statement (Exhibit 6) he listed multiple points he considers deficient in the POM.

1. Having considered these points, I agree with Mr Keller that the public interest would be well served by any approved boarding house on this site operating within the management controls of an effective POM. Insofar as the current POM lacks sufficient detail, it is a negative aspect of the proposal.

1. Accessibility ; Mr Keller also considers that in assessing the site suitability, adequate consideration should be given access arrangements, particularly for disabled persons who may wish to reside in the boarding house. By reference to the proposed plans, he identified a number of deficiencies including ramp lengths, gradients and convenient travel routes, e.g. the travel path should be clear of the clothes lines alongside the laundry. Whilst Mr Ma clarified some of the concerns, I think the details should be accurately shown on the development plans to ensure any following construction plans are consistent with the development intent and such works do cause adverse amenity in other areas.

1. Public transport access ; An associated concern is the suitability of access to public transport. The closest bus stop is about 600m to the west in Warringah Road. But the footpath is relatively steep in places with a gradient in the order of 13% near the property, levelling off to about 8%. Having observed to footpath condition on this travel route, it does not seem particularly safe or convenient due to the gradients, footpath surface and obstructions in the footpath area. Whilst there is alternative access to Warringah Mall, it is nevertheless some 1200m to the east and in my assessment, not conveniently accessed for those without a vehicle.

1. However I note that Mr Ma has recognised this concern and is prepared to provide a small community bus for two daily services to Warringah Mall. Providing this effectively maintained, then a reasonable level of access could be maintained.

1. Car parking ; The subject application complies with the minimum requirement of 2 spaces, 1 being for disabled persons. As these spaces are in the front yard area, Mr Keller expressed some concerns about the manoeuvrability for vehicles. Subsequent checking of the swept paths indicates that there is basic compliance for on - site turning for a vehicle to enter and leave in a forward direction. Although the approval of this front manoeuvring area also requires the proper erection of a vehicle guard rail fence, which is not specified.

1. Site facilities ; Mr Keller expressed concerns about inadequate details on the garbage storage area alongside the garage, particularly its location relative to the neighbouring common boundary and structural support details, no cross section is provided. Mr Keller also considers the provision of communal areas in this case are inadequate in terms of the share laundry and likewise the 2 designated and separated open air drying spaces.

1. Apart from this Mr Keller considered the SEPP standards and controls and reported general compliance. However he says that while the existing front setback area is proposed to be altered, no details of the proposed landscaping have been presented.

Conclusions

1. Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this current application merits consent. Notwithstanding this, I accept that a properly detailed application for a boarding house on the site could otherwise merit conditional consent, thereby satisfying the requirements of the Affordable Housing SEPP and the relevant s79C considerations.

1. However in this case, I do not consider the applicant has satisfactorily responded to the contentions, particularly the contention that inadequate information has been submitted. Whilst council officers have undertaken an assessment of the application, this has resulted in draft conditions, which contain some 6 deferred commencement conditions that require fundamental design matters to be resolved before the consent becomes operative.

1. These deferred conditions are to cover:

• Details of the proposed stormwater drainage measures.
• Details of the retaining walls rectification and new wall details.
• Unauthorised landfill certification.
• Fire safety detailing.
• BCA detailing
• Provision of satisfactory POM.

1. As I have acknowledged, some of the outstanding details could be covered by conditions, especially following Mr Ma explanations during the hearing. But I think it essential and also reasonable these details be initially shown on the plans to ensure the proposal satisfactorily integrates with the site constraints. Accordingly, I do not think it appropriate for the Court to approve a development that defers the determination of relevant matters of consideration to some other body, when the environmental impacts is uncertain.

1. This is consistent with the authority in GPT RE Limited v Wollongong City Council and Anor (No 4) [2008] NSWLEC 28 (29 January 2008) where it was stated:

. Deferral or inadequate consideration of essential matters?

44 It has been long accepted that the availability of the power to grant a deferred commencement consent does not relieve a consent authority of its obligation to consider all matters requiring its determination under s.79C of the EP&A Act (Weal at [94]), relevantly the impacts of the proposed development and the suitability of the subject site for it. A deferred commencement consent is a "final" consent, but its commencement date has yet to be settled. Weal, and see also Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-6. In Mison, Clarke JA (with whom Meagher JA agreed) stated at 740:

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final...

47 GPT relies on several passages in the judgments in Weal to require more of the Council in this regard than what GPT's submissions (par 31) calls "simple advertence" to such draft instruments. See Weal at [13] and [80]. The consent authority must give "proper, genuine and realistic consideration" to them: Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 ("Kindimindi") at [74]-[79

1. Furthermore, I also note that the Court is not the design authority and does not usually engage in the assessment of progressive design changes, like the many detailed amendments suggested during the course of this hearing. Reference to the Court's Practice Note - Class 1 Residential Development Appeals, contains in Schedule A the requirements for plans and other details, so that the Court can assess the merits of the applicant's proposal.

1. But I do not consider these requirements have been provided. It is apparent from the evidence that this sloping lot is constrained by the cut and fill to achieve satisfactory building and recreation areas. Whilst these works were previously conditioned it seems a practicing structural engineer has never finally certified them.

1. Consequently, I rely on the expert evidence of Mr Colenbrander, whose evidence was not challenged by any other engineering expert, that certain lengths of the western adjacent to the side pedestrian pathway appear structurally inadequate. Also the lack detailing for location and initial design specification for the extensive upgrading of the eastern retaining wall is unsatisfactory. I understand that the existing wall is unsatisfactory and Mr Ma intends to somehow replace it. But not one cross section or structural detail has been provided to assess the various environmental impacts of such works, including those on the adjoining property.

1. In response to these concerns Mr Ma offered to erect a 1800mm brick/glass shutter privacy wall above the retaining wall. Its specification is the lower part is 1200mm single brick, above which are 600mm shutters. However Mr Colenbrander thought this proposal uncommon and did not support it in the absence of any structural details. As previously stated, no details for the fixing of the vehicle safety barrier have been included.

1. Because if the sites proximity to adjoining bush fire prone land, the application was referred to the NSW RFS. The RFS required a fire risk report from a qualified consultant. Insofar as Bushfire Safety Solutions subsequently prepared such a report on 17 July 2010, the details and recommendations cannot now be relied upon because the applicant has changed the fire exit route from the western to the eastern side of the dwelling, which has a higher fire hazard risk.

1. The performance solution adopted in the report is that " entry and exit to building is on the non hazard side of the dwelling ". The report also states that " site access is on the side away from the bushfire threat interface ". The fact that the applicant has reversed this fire access route needs to be properly assessed in terms of potential fire risk to people in the boarding house. Likewise, I consider the revised proposal to somehow erect 1.8m high privacy screens along the eastern side balconies needs to be adequately specified to enable proper assessment. I consider these inconsistencies and lack of specification an unsatisfactory aspect of the development, leading to its refusal.

1. This new access route along the eastern boundary requires a dedicated pathway and the construction of a bridge over boulders, in parts about 2m high with a span in the order 3-4m. The lack of any details of this facility is also a significant deficiency in my opinion.

1. In summary then, I do not consider the applicant has adequately demonstrated that the proposed works render the site suitable for the proposed development. This conclusion is consistent with overall effect of the various expert opinions presented by council, to which there was no substantive challenge. Whilst I have mentioned some of the more significant deficiencies with the application detailing and design, many others require attention as set out in the expert reports, if the proposed development is to proceed in an orderly manner, whereby the public interest is adequately safeguarded.

Court orders

1. The Court orders that:

(1)   The appeal is dismissed.

(2)   Development consent for works to permit the use of the dwelling at 64B Beacon Hill Road Brookvale to be used as a boarding house is refused.

(3)   The exhibits may be returned except for 1, 2, A and C.

R Hussey

Commissioner of the Court

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Decision last updated: 15 March 2011