Toplace Pty Ltd v City of Parramatta Council

[2017] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:	Toplace Pty Ltd v City of Parramatta Council [2017] NSWLEC 1594
Hearing dates:	7, 8 and 11 September 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders for matter 16/164375: 1 Leave is granted by the Court to rely on amended plans (Exhibit 11) and amended Modification Application under DA/852/2013/A (Exhibit K). 2 The appeal for the Modification Application under DA/852/2013/A is dismissed. 3 Modification Application, under DA/852/2013/A lodged on 10 July 2015 and amended on 11 September 2017 for Lot 1 DP 1214839, also known as 189 Macquarie Street, Parramatta is refused. 4 The exhibits are returned, except Exhibits 1 and K.  The Court orders regarding matter 16/234920: 1 Leave is granted by the Court to rely on amended plans (Exhibit 11). 2 The appeal of the Order 19(a) is dismissed. 3 The appeal of the Order 19(a), dated 7 July 2017 for the stop work at Lot 1 DP 1214839, known as 189 Macquarie Street, Parramatta is refused. 4 The exhibits are returned, except Exhibit 1 and 11.
Catchwords:	APPEALS: two separate but related appeals: modification to development application; order to cease work; same development; BCA compliance; permanent dewatering.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2007 Parramatta Local Environmental Plan 2011 Protection of the Environment Operations Act 1997 State Environmental Planning Policy No 55 - Remediation of Land 2014 Water Management Act 2000
Cases Cited:	Ashland Chemicals (A/ASIA) v Wyong Shire Council (unreported 10668 of 1988 1 October 1989) C.S.R. v Wingecarribee Shire Council (No. 2) (Unreported 17 December 1991) Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Seaforth Services Pty. Ltd. v Byron Shire Council (No. 2)((1991) 72 LGRA 44) The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244 Vasik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Aquifer Interference Policy 2012, NSW Office of Water Land and Environment Court Practice Note for Class 1 Development Appeals, 27 March 2017
Category:	Principal judgment
Parties:	Toplace Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: Mr P McEwan SC and Dr Beverling (Applicant) Mr Miller and Ms McKelvey (Respondent)   Solicitors: Blackstone Waterhouse Lawyers (Applicant) City of Parramatta Council (Respondent)
File Number(s):	16/164375 and 16/234920
Publication restriction:	No

Judgment

1. COMMISSIONER: There are two separate but related appeals: firstly, refusal of a Modification Application (MA) under DA/852/2013/A, to amend DA/852/2013 for the construction of three additional basement levels; and secondly, an Order under item 19(a), section 121B of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), to cease all building work. The appeals relate to Lot 1 DP 1214839, also known as 189 Macquarie Street, Parramatta (the site).

2. Consistent with paragraph 76 of the Court’s Practice Note for Class 1 Development Appeals (the Practice Note), appeals against the refusal of Modification Application, matter 16/164375, and Order 19(a), matter 16/234920, have been heard together, and will be considered in a combined judgement hereafter.

Background

3. Development consent for the construction of a 30 storey, mixed use development containing 425 apartments, 317 m2 retail space, 715 commercial car parking spaces over one level of basement and six levels of podium, and three levels of basement car parking with 389 spaces for residential use was granted by the Joint Regional Planning Panel (JRPP), under development applications (DA) DA/852/2013 and DA/183/2014, on 15 April 2015 and 30 October 2015, respectively.

4. The applicant subsequently sought to amend DA/852/2013 on 10 July 2015 by lodging a MA to: excavate and construct two additional basement levels (4 and 5) over the same approved building footprint; to provide a further 36 parking spaces for residential use; and to reconfigure retail space to enable provision of a substation.

5. The MA (under DA/852/2013/A) was referred to the JRPP, whom refused it on 25 February 2016 on the basis that sufficient residential parking could be made available with a redesign of the existing approved (3) basement levels and additional parking was inconsistent with planning policies to encourage use of public transport. It is important to note that the JRPP did not consider Basement Level 6, as the MA was assessed on the basis that all the basement levels would be fully tanked and therefore no requirement for dedicated dewatering pumping or storage.

6. Council was made aware on March 2016 that Basement Levels 4 and 5 had been constructed. Subsequent site inspections throughout March 2016 to January 2017 by council officers confirmed: the construction of the additional basement levels (4 and 5); that all basement levels were not waterproofed (tanked); and that a further (6th) basement level was constructed to hold a hydraulic tank with pump for the purposes of dewatering.

7. On 7 July 2017, council issued an Order under item 19(a) of s121H of the EP&A Act 1979 to cease all building work on the site.

8. Additionally, on 7 July 2017, pursuant to s121H of the EP&A Act 1979, council issued a Notice of Intention to give Order under item 15 of s121B of the EP&A Act 1979, regarding the treatment of unauthorised works for the Basement Levels 4, 5 and 6.

9. During the hearing, the applicant was granted leave to amend the MA (under DA/852/2013/A), provided in Exhibit K, as follows:

1. Excavation and construction of three additional basement levels (4, 5 and 6) using the same approved building footprint, to provide a further 36 car parking spaces for residential use, increasing the total to 425 car parking spaces.

2. Relocation of the substation and pump pit/pump well from Basement Level 1 to Upper Level 1 to enable access at ground level and be installed above a 1 in 100 year flood level.

3. Reconfiguration of the layout to Upper Level 1 and Basement Levels 1, 2 and 3 for retail spaces, car parking, plant rooms, storage areas, stormwater drainage and ancillary services.

4. Installation of a groundwater treatment plant to manage inflow:

1. To be contained within the onsite detention tanks as shown on the As Built Drawings D06 rev Z.01, D07 rev Z and D11 rev V prepared by Australian Consulting Engineers Job No. 120668

2. To be designed to ensure that the quality of water to be removed from Basement Levels 1 to 5 of the proposed development shall meet:

1. The groundwater discharge investigation level set out in Table 5.1 of the Groundwater Discharge Management Plan (DMP), prepared by Arcadis and dated 10 February 2017; and

2. The criteria set out in section 5.2.1 of the DMP (relating to total suspended solids, sheen, odour, turbidity and temperature).

The dispute

10. The council contends the following issues:

1. Relating to the MA under DA/852/2013/A (matter 16/164375) -

1. Pursuant to s96(2)(a) of the EP&A Act 1979, the proposed development is substantially not the same as the development already approved, on the basis that basement levels are not tanked.

2. Insufficient information to inform decision making and assess potential for adverse impact resulting from groundwater management including dewatering and pollution, building works and services, as-built structure and fire services.

3. Non-compliance with Building Code of Australia (BCA) requirements for constructed works.

2. Relating to Order 19(a) (matter 17/234920);

1. Unauthorised building works in contravention of s76A(1)(b) of the EP&A Act 1979 and existing DA approvals for the site, specifically: excavation and construction of three basement levels below approved depth that require dewatering with associated infrastructure; concrete structures including piling, drainage, walls, slab and lift well; and fire services and equipment.

2. Non-compliant building work consistent with BCA requirements for cladding, stormwater and car park spaces.

11. There is no contention with regards to the following items of the MA under DA/252/2013/A, being: item 2 ‘Relocation of the substation and pump pit/pump well from Basement Level 1 to Upper Level 1 to enable access at ground level and be installed above a 1 in 100 year flood level’; and item 3 ‘Reconfiguration of the layout to Upper Level 1 and Basement Levels 1, 2 and 3 for retail spaces, car parking, plant rooms, storage areas, stormwater drainage and ancillary services.’

12. The Court heard from the following experts:

• Water - Mr Douglass (for the applicant); and Dr Martens (for the respondent).

• Fire - Mr Jeffress (for the applicant); and Mr Hui (for the respondent).

• BCA - Mr Harriman (for the applicant); and Mr Murrow (for the respondent).

• Geotechnical/engineering - Dr Hasham and Mr Bartels (for the applicant); and Mr Piccolo (for the respondent).

The site

13. The site was originally comprised of 8 lots being: Lots 3A and 4A in DP322453; Lot 5 in DP 128928; Lot 20 in DP 706341; Lot C in DP 390897; Lot 1 in DP 555756; and part Lot 5 in Section 88 of DP 758829. Subsequent to the submission of the MA, the land at 34 Hassall Street was added to the development and all lots were consolidated into a new Lot 1 DP1214839.

14. The site has dual street frontages with Macquarie Street and Hassall Street, Parramatta. It is irregular in shape with a total site area of 5211 m2, having a frontage of 48.66 m to Macquarie Street (northern boundary) and 51.68 m to Hassall Street (southern boundary). The site is bounded on its eastern and western boundaries by commercial and residential developments, with a fall of 2.27 m towards the north.

15. The site is located on the eastern edge of the Parramatta CBD, and is surrounded by a range of developments with height variability, including commercial, retail, residential both, educational, hospitality and public infrastructure. It is located within 400 m of Parramatta Railway Station.

16. The site is located approximately 250 m south of the Parramatta River, 85 m north of Claycliff Creek Chanel and is on flood prone land.

Relevant statutory controls

17. With regards to the MA, Section 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) states:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent,

18. Relating to Order 19(a), pursuant to s121B, EP&A Act 1979, the consent authority must act accordingly:

(2) An order may be given to a person by:

(aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or

(a) a council, or

(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

19. The requirements for the Order, as provided in Table associated with s121B(2) of the EP&A Act 1979, are:

s121B(19) is an order to cease carrying out specified building work or subdivision work, where (a) building work or subdivision work is being carried out in contravention of this Act,

20. Pursuant to 121K of the EP&A Act 1979, the Court is required to:

(1) After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:

(a) to give an order in accordance with the proposed order, or

(b) to give an order in accordance with modifications made to the proposed order, or

(c) not to give an order.

(2) If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.

21. The Water Management Act 2000 (WMA 2000) provides controls for dewatering as part of an aquifer interference activity, pursuant to s91 and s91A. The current dewatering at the site is deemed an ‘aquifer interference activity’ according to the dictionary of the WMA 2000. The requirement to hold a relevant activity approval is specified in s91 below:

(1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.

(2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.

(3) An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities.

22. The requirement for licensing of discharge of polluted water is managed pursuant to s43 and s44 of the Protection of the Environment Operations Act 1997 (POEO Act 1997). Section 44 with regards to discharge of polluted water states:

(1) Licences may be issued or varied so as to cover either or both scheduled development work or scheduled activities.

(2) Licences with respect to scheduled development work or scheduled activities may regulate all forms of pollution (including water pollution) resulting from that work or those activities.

(3) Licences with respect to non-scheduled activities may also regulate any form of pollution in addition to water pollution resulting from those activities. (4) Licences authorising or controlling an activity carried on at any premises may also regulate pollution resulting from any other activity carried on at the premises to which the licence applies.

23. Discharge of polluted waters that potentially drain to the Parramatta River must have regard to the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005). Development in the catchment must adopt the following relevant planning principles:

(a) development is to protect and, where practicable, improve the hydrological, ecological and geomorphological processes on which the health of the catchment depends,

(c) decisions with respect to the development of land are to take account of the cumulative environmental impact of development within the catchment,

(d) action is to be taken to achieve the targets set out in Water Quality and River Flow Interim Environmental Objectives: Guidelines for Water Management: Sydney Harbour and Parramatta River Catchment (published in October 1999 by the Environment Protection Authority), such action to be consistent with the guidelines set out in Australian Water Quality Guidelines for Fresh and Marine Waters (ANZECC),

(h) development is to improve the water quality of urban run-off, reduce the quantity and frequency of urban run-off, prevent the risk of increased flooding and conserve water,

24. The site is zoned B4 Mixed Use under the Parramatta Local Environmental Plan 2007 (PLEP 2007). The specified development is permissible under the PLEP 2007 and the subsequent Parramatta Local Environmental Plan 2011 (PLEP 2011). The area within Parramatta City Centre, which includes the site, is now under PLEP 2011.

25. Development at the site is managed under the Parramatta Development Control Plan 2011 (PDCP 2011).

The MA appeal - Is the modified development substantially the same?

26. The council maintains that pursuant to s96(2)(a) of the EP&A Act 1979, the development described in the MA under DA/852/2013/A is ‘substantially not the same’ as the approved development, based on the requirement for all basement levels to be tanked (to make them watertight).

27. The applicant contends however that the MA applies the same building footprint for the additional basement levels (4 and 5), and that groundwater ingress into the basement levels can be appropriately managed through installed pumping and water storage infrastructure in Basement Level 6, with proposed water quality treatment prior to discharge.

Evidence

28. General Terms of Approval (GTA) were issued by the NSW Office of Water (NOW) under DA/183/2014 for a period of 12 months, and noted that ‘less than 3 MegaLitres/year’ was permitted to be intersected during construction and that ‘design and construction must prevent any water take after the authorisation has lapsed’. Further to this, the GTA required that ‘the method of disposal of pumped water shall be nominated … and a copy of the written permission from the relevant controlling authority shall be provided’.

29. On the issue of polluted groundwater ingress, the GTA required that disposal must comply with the provisions of the POEO Act 1997 and the Controlling Authority, which for this site is the council.

30. Dr Hasham, as the applicants planning expert confirmed in evidence that the approved basement plans under DA/852/2013 and the MA plans under DA/852/2013/A, dated October 2014 (in Exhibit 11) were stamped ‘basement to be fully tanked’ for all approved and proposed basement levels. He went on to explain that as the geotechnical information predicted less than 3 ML/yr, and based on his observations during the excavation phase, the basement levels would not need to be tanked. The design of the basements was subsequently changed to be ‘not tanked’, and a revised as-built set of drawings for the basement design plans were submitted as part of the amended MA, and dated post 2015.

31. Dr Hasham explained that it was during the excavation of the lift shaft constructed under DA/852/2013 that the decision was made to excavate Basement Levels 4 and 5. Basement Level 6, although the timing is unclear, was constructed to house the water pumps and storage required for dewatering.

32. The ‘Geotechnical Certificate for Basement Construction’ issued on 23 March 2016, states that an assessment of construction dewatering was undertaken and that ‘a likely dewatering volume within the range of 0.1 to 2.0 ML per year’ was predicted.

33. A geotechnical assessment of water ingress to all constructed basement levels on 7 April 2016, noted that ‘the majority of the sub-basements had filled with water’ when the basement pumps had been turned off for two weeks (between 23 March and 6 April), and that ‘the extra two basement levels have been designed to collect and discharge groundwater seepage’.

34. Mr Douglass, as the applicants water expert, referred to his Arcadis report on ‘Groundwater Take and Impact Assessment’ (2017), in Exhibit D, and states that at the time of the original assessment for the DA ‘Previous assessments demonstrated that <3 ML/yr of groundwater would be required to be dewatered during construction and over the life of the building’. The report also noted that ‘Given the negligible groundwater inflows predicted, a drained basement design was implemented’.

35. Mr Douglass, further states that following construction of the additional two basement levels (4 and 5) the consequence was ‘increased depth of basement levels that has resulted in further interception of water bearing rock and greater than expected groundwater inflows requiring ongoing dewatering in perpetuity’.

28. Groundwater seepages in monitoring wells constructed around the site were recorded from depths of 4.5 m below ground level (bgl), equivalent to an RL of 3.5 m, well above Basement Level 3. The monitoring wells do not extend below Basement Level 4, which was confirmed by Mr Bartell, as the applicant’s geotechnical expert.

29. The water experts, Mr Douglass and Dr Martens, agreed that the already constructed six basement levels will require permanent dewatering if not tanked.

30. The water experts were unable to agree on the benefits or quantum of retrofitting a watertight seal to the basement levels to have the effect of tanking and reducing groundwater ingress. Mr Martens was of the view that waterproofing is necessary to ‘re-establish groundwater conditions more like those under natural/predevelopment conditions’ and to minimise the need for ongoing maintenance of a dewatering system at the site. Mr Douglass considered that ‘conversion of the current design to construct a fully tanked basement is likely to be prohibitively expensive and impractical’.

31. The experts differed in their view as to whether less than three months of water monitoring data without any significant rainfall events, is sufficient to accurately assess potential future water make into the basement levels, which is estimated based on available data at between 7.3 to 14.6 MegaLitres/year (ML/yr). Paragraph 9(c) of the joint expert report (Exhibit 5), states that the expected groundwater pump rates during very wet years could increase to between 12.8 to 16.4 ML/yr. The joint expert report also recognises that a longer period of data would increase understanding of groundwater inflow rates and rainfall response.

32. Dr Martens considers that ongoing extraction and disposal of groundwater from the dewatering system at the site is ‘contrary to current best practice and principles of ESD’ (ecological sustainable development).

33. Based on the available water data, and adopting the assessment criteria provided in the Aquifer Interference Policy 2012, the aquifer interference activity at the site is deemed by the experts to have ‘minimal harm’. This is essentially an evaluation of the potential long term impact on the aquifer surrounding the site and with interacting water bodies, such as the Parramatta River.

34. The amended MA acknowledges the need for permanent dewatering (whereas the original MA did not) and the requirement for an approval/licence to extract and discharge water. In an email dated 11 May 2017, NOW provided the applicant with an in-principle agreement to the proposal for ‘dewatering in perpetuity’, based on the ‘Groundwater Discharge Management Plan’ dated 10 February 2017. A water supply works approval request for permanent dewatering was submitted by the applicant to NOW on 26 May 2017. However, a letter dated 10 July 2017 from NOW states that the water supply works approval for permanent groundwater dewatering at the site has not been approved pending written authorisation from Council regarding the disposal of extracted groundwater.

35. The water experts agreed that the water ingress into the basement levels will require discharge to the sewer system and is currently polluted, due to Nitrogen (based on ANZECC guidelines for fresh and marine waters). However, the experts disagree as to the type of treatment required to adequately improve water quality prior to discharge, to within ANZECC requirements.

36. The water experts agreed that the expense and responsibility for an ongoing dewatering operation at the site including pumping and treatment prior to discharge will become the responsibility of future site owners. The cost of this water treatment and discharge was not agreed.

Findings

45. There is no doubt from the evidence presented that the approved basement design under DA/852/2013 and intent of the associated GTA from NOW under DA/183/2014 required all basement levels to be fully tanked to prevent the need for permanent dewatering and groundwater ingress exceeding 3 ML/yr.

46. There is also no dispute amongst the experts that the (6) constructed basements are not tanked, and in their current form require ongoing, permanent dewatering in excess of 3ML/yr, with discharge to the sewer system that requires prior treatment of polluted water.

47. The threshold issue to consider is whether the MA under DA/852/2013/A, for the construction of Basement Levels 4, 5 and 6, and ‘treatment’ for permanent dewatering due to the ‘untanked’ basements is considered as substantially the same development as that approved.

48. With the benefit of a site inspection, I observed groundwater ingress in all (subsurface) basement levels below Basement Level 1, consistent with the expected groundwater levels identified in surrounding monitoring wells. I am not convinced by the evidence provided that it is the additional three basement levels (4, 5 and 6) alone that have caused the volume of water ingress to exceed 3 ML/yr.

49. Pursuant to s96(2)(a) of the EP&A Act 1979, the applicant when submitting an MA bears the onus of proof to show that the modified development is substantially the same, as explained in Seaforth Services Pty. Ltd. v Byron Shire Council (No. 2)((1991) 72 LGRA 44) and C.S.R. v Wingecarribee Shire Council (No. 2) (Unreported 17 December 1991).

50. In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at [56], Bignold J held that the task for determining whether a development proposed to be modified is substantially the same as the consent granted is as follows:

"The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."

51. In Vasik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J held that "substantially" meant "essentially all material or having the same essence." Justice Stein goes on to say that:

In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. A significant difference is one of sequencing. … This has obvious implications for environmental impacts.

52. The absence of ‘tanking’ around the constructed basement levels, has resulted in a volume of water ingress in excess of that approved under DA/183/2014, being <3 ML/yr, which is conditioned under DA/852/2013.

53. Development at the site as proposed under DA/852/2013/A (and constructed) will require potentially up to an additional 16.4 ML/yr of water, with infrastructure to store, treat and discharge the additional water flow. That is a five-fold increase in groundwater ingress that requires additional infrastructure and approvals to manage.

54. The paucity of monitoring data on dewatering requirements and groundwater conditions at the site allows me to assess only what has been provided that may or may not be representative of the situation. However, as mentioned previously, the onus of proof is on the applicant when assessing a MA.

55. It is agreed that the design plans of Basement Levels 4 and 5 cover the same footprint as the approved Basements Levels 1, 2 and 3. However, I consider the tanking feature of the basement design is an essential component of the approved DA basement design that is now absent under the MA basement design.

56. In addition, the lack of tanking of the basement levels requires the need for Basement Level 6, which is not of the same footprint as the other basement levels and is specifically required to hold the water storage tank and pump housing, a feature specifically not required in the approved DA’s.

57. In The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244, Talbot J considered that when assessing the statutory requirements of s96(2)(a) of the EP&A Act 1979, a change in a critical element of a development and not only the totality of the development should be considered. He found that:

It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building, notwithstanding that the consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s79C (formerly s90) as are of relevance to that development. The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development.

58. The addition of three basement levels, including a basement (6) dedicated to managing dewatering impacts, and lack of tanking to all basement levels in my mind changes the development substantially. Tanking of the basements as designed under DA/852/2013 consent was a critical element to the approved development to prevent the ongoing burden associated with permanent dewatering and potential harm to the environment.

59. I do not accept that the applicant has established that there would be a requirement for permanent dewatering if basement levels were fully tanked, as designed and approved. The requirement for permanent dewatering with associated environmental impact and infrastructure is only a feature of the modified development.

60. With regards to qualitative assessment, I find that pursuant to s96(2)(a), the MA is not ‘substantially the same’ as the approved development, on the basis that the basement levels were intended to be of sufficient quality design to be ‘fully tanked’ to mitigate groundwater ingress to less than 3 ML/yr. The tanking of the basement levels that was approved under the DA consent was intended to prevent the need for permanent dewatering and the potential for discharge of poor quality (polluted) water, consistent with the requirements cl 44 of the POEO Act 1997.

61. I find that a requirement for permanent dewatering is contrary to ESD principles and would place undue burden on future site operators to comply with.

62. Pursuant to s56, WMA 2000, a water licence is required (unless an exemption applies such as provided in the GTA under DA/182/2014) where any act by a person carrying out an aquifer interference activity causes: the removal of water from a water source; or the movement of water from one part of an aquifer to another part of an aquifer. The estimated volume for dewatering at this site now requires a works approval, as an aquifer interference activity and an access licence with the required ‘share entitlements’ up to 16.4 ML/yr.

63. The intent of the GTA under DA/182/2014 clearly states that the development was to ensure groundwater conditions were not adversely impacted in the long term as a result of this development and that there should be no requirement for permanent dewatering (post construction). The actual volumetric dewatering now required post construction is not well understood due to an insufficient period of monitoring information, and therefore the impact (harm) to the groundwater system cannot in my mind be realistically assessed as ‘minimal harm’.

64. Considering the additional volumetric requirements of the modified development and with regards to a quantitative assessment of the MA, I find that the development proposed is sufficiently different from the approved development.

65. Further to this, while not part of the evidence or a contention of Council regarding the MA, I consider that the construction of an additional three basement levels that results in an almost doubling of the depth and volume of excavation at the site from that approved, is quantitatively different and therefore not ‘substantially the same development’ for which consent was provided.

66. With regards to the MA under DA/852/2013/A, I am not satisfied of compliance pursuant to 96(2)(a) of the EP&A Act 1979, whereby ‘the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified’.

67. I consider that if the basement levels were fully tanked as designed and approved, there would be no need for Basement Level 6, and that Basement Levels 4, 5 and 6 are therefore built contrary to approved DA/183/2014 and DA/852/2013.

68. I agree with the experts that groundwater intercepted at the site is polluted with respect to ANZECC guidelines (for fresh and marine waters), and that treatment to reduce contaminants to within ANZECC guideline levels is required prior to discharge to the sewer system, consistent with POEO Act 1997.

69. It is acknowledged that pursuant to s96 (2)(b), of the EP&A Act, 1979, the applicant has sought and gained in principle agreement from NOW for permanent dewatering for the site. However, I find that this has limited weight, as the approval/licence for permanent dewatering has not yet been granted, pending consent of Council for discharge to their sewer system.

70. I find that the discharge of groundwater from the site to the sewer system cannot be approved based on the proposed water quality treatment process provided in the MA amended on 11 September 2017, and detailed in the associated Groundwater Discharge Management Plan. I agree with Dr Martens that the proposed treatment process by the applicant will not sufficiently remediate water quality to within relevant ANZECC guidelines and that the applicant has been unable to provide sufficient evidence to prove that it will be able to comply, particularly in the longer term, post construction phase.

71. Whilst the applicant has initiated the process in an attempt to comply with s92(b) of the EP&A Act 1979, for the purposes of determination of the MA, a GTA from NOW is contingent on a licence for discharge and a works approval. Neither of these has been attained. I consider that as the water treatment for discharge is not sufficient to likely meet ANZECC guidelines, a GTA may not be provided for the MA and therefore s92(b), EP&A Act 1979 has not been complied with.

72. The acknowledgement by the applicant’s geotechnical and structural engineering experts that the design and construction of the additional three basement levels did not rely on technical data that extended below Basement Level 4 or 5 is of concern. I find that there is insufficient information to determine whether the constructed works for Basements Levels 4, 5 and 6 are in compliance with BCA requirements.

73. It therefore follows from what I have set out above, that the Modification Application under DA/852/2013/A for the site should be refused.

The Order appeal

74. Pursuant to item 19(a) of s121B of the EP&A Act 1979, council issued an Order to cease all building work at the site, which requires that ‘Toplace as the person apparently engaged in carrying out the building work at the Premises, is required to cease all building work at the Premises’ on the following:

1. The erection of any levels above car parking level 6, as detailed drawing A36 issue C of development consent DA/852/2013,

2. The construction of any residential units approved on car parking levels 2, 3, 4, 5 and 6 as shown in architectural plans approved on 25 May 2015 under development consent DA/852/2013 (with drawing reference numbers A15, A16, A17, A18 and A19.

3. Building work on the following levels:

1. Basement levels 1, 2 and 3 (also known as residential car parking levels), or

2. Lower Level 1, Upper Level 1, Level 2, Level 3, Level 4, Level 5 and Level 6 (known as council carpark).

4. Except for works that are carried out in accordance with Development Consents DA/183/2014 and DA/852/2013, and Construction Certificates J140606 and J150150.

75. The contention of council is that unauthorised building works have been undertaken at the site contrary to: DA/852/2013, specifically condition 1 (approved design plans); DA/183/2014, specifically conditions 1 (GTA) and 24 (approved design plans); and Construction Certificates J140609 and J150150. The contentions relate to: construction of unapproved basement levels, pumping, water storage and deficient waterproofing; concrete pours prior to construction certification; and non-complaint BCA services including fire, exhaust, sound and lighting. These non-compliances were the basis for the issue of the Order by the council.

76. The council also contends that the external cladding as installed is combustible, and that car parking spaces are not of sufficient size and obstructed, and therefore not complaint with BCA.

Evidence

Basement tanking

77. The evidence of unauthorised works relating to construction of additional basement levels (4, 5 and 6), and consequential permanent dewatering requirement due lack of basement tanking have been discussed above, and will be considered to inform the findings below.

Structural integrity

78. An inspection of the site was undertaken by council officers on 22 March 2016, which provided photos showing all basement levels constructed, including Basement Levels 4 and 5.

79. A ‘Certificate of Structural Integrity’ was issued on 23 March 2016 by Australian Consulting Engineers (ACE) for all basement levels and up to levels 8 of the retail/residential tower. Dr Hasham, whom is engaged by the applicant as a structural certifier for the development, signed the Certificate of Structural Integrity. He stated that he or his staff attended each concrete pour, although was unable to provide documentary evidence of site visits by either him or his team that were undertaken during the construction phase to support the certification process. Dr Hasham agreed that the council inspection prompted the issuance of the Certificates of 23 March 2016.

80. Dr Hasham also agreed that the Certificates (for Structural Integrity) issued in November 2015 were based on the approved plans (rev T), and the latter Certificates of March 2016 were based on as-built plans (rev W), that are not the same as the approved plans for DA/852/2013 and DA/183/2014. With regards to the changes in the design plans that supported the MA including the additional basement levels, Dr Hasham indicated that he attended twice weekly meetings with the client for a year during the construction phase, whereby the revision to the design plans were verbally conveyed by the applicant. He stated that from these meetings he assumed the modified development was supported and approved by council as the development was a ‘joint venture’.

81. Dr Hasham agreed that he relied on ‘instructions’ from Mr Bartels, as the applicants geotechnical expert, rather a geotechnical report to inform the additional basement design below Basement Level 4.

82. Mr Bartels confirmed that there are no geotechnical boreholes that extend below the footings of Basement Level 5, and referred to a geotechnical report undertaken in 2015. His determination of the geotechnical conditions below Basement Level 5 was based on ‘the knowledge that once we get into the shale of that high quality at that depth, it’s extremely likely that that will continue for some distance below where the boreholes terminated, and subsequent inspections during construction of the deep lift excavation verified that, as well as spoon test results that were conducted during construction as well’. He explained measuring defects on the footings for Basement Level 5 indicated that by testing a ‘shale 2, class 2 shale’ and using site photos, a class 1 shale was present beneath the site, which could withstand a bearing pressure of 8000 kilopascals (Kpa). He noted that the rock strength was tested by ‘striking it with a hammer’.

83. Mr Bartels agreed that he did not personally undertake the site inspections nor the spoon testing described above, however it was done by Mr Green, a principal geotechnical engineer in his company, Asset Geotechnical. Inspection reports by Mr Green for the spoon testing were provided in evidence.

78. Mr Piccolo, as the respondents geotechnical expert, reviewed the spoon test inspection reports, and although notes that no ‘class 1 shale’ was referred to, he agrees that the report states a capacity to bear a load of 8000 Kpa. He did not agree however as to the method used to determine the bearing pressure, which did not test the zone of influence.

79. Mr Bartels agreed that he did not review nor refer to the approved DA plans for consistency with as-built construction, including the three additional basement levels.

80. Mr Piccolo reviewed the as-built plans (rev W) used to certify structural integrity, and following his site inspection of the shored piles at the site was unable to confirm that the appropriate anchoring was installed. He is unclear about whether the piles are able to take the necessary loads. Mr Piccolo is however satisfied that the piling locations and loads from the existing pilings along the neighbouring property boundary at 23-26 Hassall Street are adequate, based on information provided.

81. Dr Hasham agreed that his company inspected the anchors to stabilise the toe of the piles and considered them satisfactory.

BCA

88. The BCA experts agree that Basement Levels 4, 5 and 6 were constructed contrary to condition 1 of DA/852/2013, and conditions 1 and 24 of DA/183/2014 and Construction Certificate J140609.

89. Mr Harriman, as the respondents BCA expert considers after review of satellite images that the concrete slab pour for Basement Level 3 and the lift in Basement Level 2 did occur prior to the issuance of Construction Certificate J150150.

90. It was agreed by the BCA experts that the unapproved works in contention 1(b), Exhibit 9, that relate to services and equipment are not relevant to Construction Certificate J150150.

91. The BCA experts generally agree that there is insufficient information available to assess the building work undertaken at the site and to determine BCA compliance. Mr Harriman suggested an audit requiring up to 80 hours of work is required to assess this.

92. The BCA experts agree that the following information is required to assess compliance:

1. Wall details – installation information including slenderness ratio, structural restraint, insulation, hebel, plus an onsite review of wall location and fire ratings.

2. Independent (engineer) certification – required for stair pressurisation, car park jet fans, sound/intercom system, emergency lighting/signs, general electrical, water proofing, and smoke detection and alarm system.

3. Smoke exhaust – installation details in retail areas.

4. Penetrations fire sealing – installation certificates with details of products used and schedule, test reports for wall types and mortar used.

5. Car spaces – redesign details for accessible and shared spaces.

6. Stormwater - redesign details of pipes between car spaces.

93. Further to this, Mr Harriman considers the lift size and accessible car spaces are not BCA compliant and need to be re-assessed.

94. The BCA experts agreed that completion certifications are typically done post installation, and are required to certify work completed according to the design and installation certifications. Therefore, completion certificates cannot yet be issued for the site.

95. With regards to the cladding combustibility, the BCA experts agreed that there was insufficient information on the ‘Vitracore’ cladding installed at the site, including the type of cladding, the location on the building or method of installation, and therefore that BCA compliance could not be assessed.

96. The experts agreed that to achieve BCA compliance, an external wall must be non-combustible, based on a specific test, AS1530, part 1. It was discussed and agreed that when the individual parts of the cladding are tested, they are often found to be non-combustible and therefore compliant with BCA. However, the experts were unable to agree on the issue of when the cladding parts are combined with glue on assembly, they can become combustible, which is not currently required to be tested for BCA compliance.

Fire

97. The experts agreed that NSW Fire and Rescue, pursuant to being a consent authority under the EP&A Act 1979, have no objections to Basement Levels 1, 2 and 3, and have not yet provided advice on Basement Levels 4, 5 and 6.

98. The primary contention for council is the requirement for modelling of the fire risk in the above ground car parks. It is agreed that the basement (below ground) car parks have been modelled and are not in contention.

99. The fire experts agree that the effect of air movement around the impulse fans in the above ground car park levels could change the risk for fire dispersal. Mr Hui, as the respondent’s expert, has therefore requested that fire modelling grid size be reduced around the fan areas, to improve fire modelling prediction patterns.

100. Modelling of fire risk for the above ground car park levels by the applicant’s expert, Mr Jeffress is pending. The model runs take over a week to produce and at the time of the hearing had only just commenced.

101. However, Mr Hui considered that if the modelling showed that there was unacceptable fire risk on these above ground car park levels, there could be modifications to the location and size of fans and sprinkler head systems to mitigate the risk. He agreed there are no foreseen changes in building design required for BCA compliance for fire services.

102. The proposed fire modelling will not consider the potential combustibility of external cladding as it is being undertaken to assess the potential evacuation of the car park and not the residential building. Mr Hui considers the cladding is a fire risk possibility.

Findings relating to Order 19(a)

103. In determining the appeal regarding Order 19(a), s121ZK(4) of the EP&A Act 1979 gives the Court the discretion to:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

104. In Ashland Chemicals (A/ASIA) v Wyong Shire Council (unreported 10668 of 1988 1 October 1989) Justice Cripps observed, “the onus is on the developer to establish that the activity for which development consent is sought is permissible and not prohibited”.

105. I consider that the applicant has had a blatant disregard regarding compliance with the approved DA’s issued for the site. After assessing all available evidence and based on my site inspection, I find that the works specified relating to Order 19a are unauthorised. I agree the unauthorised building works, as specified in the Order, are in contravention of s76A(1) of the EP&A Act 1979, existing DA approvals (DA/852/2013 and DA/183/2014) and Construction Certificates J140606 and J150150, issued for the site.

106. There is sufficient doubt in my mind as to the structural integrity of the basement levels due to reliance on insufficient geotechnical information to support the design change. I am concerned that if not constructed on structurally sound basement rock, this could compromise the entire building.

107. There is insufficient information provided by the applicant as to whether concrete structures including piling, drainage, walls, slab and lift well at the site have been constructed according to approved design. Without verification of site inspections, I do not have confidence in the reliability of the ‘Certificates of Structural Integrity’ issued for the site, and find that an audit of all structures constructed by an independent certifier should be undertaken.

108. I am unable to determine, based on the information provided, whether the Construction Certificates J140606 and J150150 have been properly implemented. The applicant has not provided sufficient information to determine whether the activity undertaken at the site regarding BCA requirements and structural integrity are not prohibited.

109. Based on the above, for all requirements of Order 19(a), I find that the applicant has not established that the building work undertaken at the site for which there is development consent is authorised. The lack of information does not support the certifications that have been provided, nor satisfy BCA compliance. This requires me to uphold the Order under item 19(a) s121B of the EP&A Act 1979 that enforces a cease (stop) building work at the site.

110. With regards to the cladding, I find that pursuant to Section 79C(4) of the EP&A Act 1979, the materials used are compliant with current safety standards and this issue has not had bearing on my decision above. This is consistent with s79C(4) of EP&A Act 1979 as follows:

(4) Consent where an accreditation is in force. A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.

111. However, I strongly suggest that modelling of cladding, in its complete form as applied to the building, response in a fire should be undertaken to assess fire risk and ensure BCA compliance.

112. Pursuant to s121K(1)(a) of the EP&A Act 1979, I find that the Order under item 19a, s121B of the EP&A Act 1979 for the site should remain in force.

113. It therefore follows from what I have set out above, and pursuant to 121ZK of the EP&A Act 1979, that the appeal against the Order, for the cease all building work at the site, is dismissed.

Outcome of the appeal

114. The Court orders for matter 16/164375:

1. Leave is granted by the Court to rely on amended plans (Exhibit 11) and amended Modification Application under DA/852/2013/A (Exhibit K).

2. The appeal for the Modification Application under DA/852/2013/A is dismissed.

3. Modification Application, under DA/852/2013/A lodged on 10 July 2015 and amended on 11 September 2017 for Lot 1 DP 1214839, also known as 189 Macquarie Street, Parramatta is refused.

4. The exhibits are returned, except Exhibits 1 and K.

115. The Court orders regarding matter 16/234920:

1. Leave is granted by the Court to rely on amended plans (Exhibit 11).

2. The appeal of Order 19(a) is dismissed.

3. The appeal of Order 19(a), dated 7 July 2017 for the cease work at Lot 1 DP 1214839, known as 189 Macquarie Street, Parramatta is refused.

4. The exhibits are returned, except Exhibit 1 and 11.

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S Bish

Commissioner Bish         

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Decision last updated: 24 October 2017