Wheatley v Woollahra Municipal Council
[2007] NSWLEC 192
•21 March 2007
Land and Environment Court
of New South Wales
CITATION: Wheatley v Woollahra Municipal Council [2007] NSWLEC 192 PARTIES: APPLICANT
RESPONDENT
Jennifer Kathleen Wheatley
Woollahra Municipal CouncilFILE NUMBER(S): 11112 of 2006 CORAM: Tuor C KEY ISSUES: Development Application :- Alterations and additions,
Risk and impact of excavation.
Impact on heritage significance of conservation area.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995CASES CITED: Carstens v Pittwater (1999) NSWLEC 249;
Ferella v Woollahra Municipal Council (2002) NSWLEC 233DATES OF HEARING: 19/03/2007 and 20/03/2007 EX TEMPORE JUDGMENT DATE: 21 March 2007 LEGAL REPRESENTATIVES: APPLICANT
Dr Berveling, barrister
instructed by Mr P. O'Brien of
Harris & Company SolicitorsRESPONDENT
Mr M. Connell, solicitor
of HWL. Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
11112 of 2006 Jennifer Kathleen Wheatley v Woollahra Municipal Council21 March 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of a Development Application (110/2006/1) for alterations and additions to an existing terrace at 14 Gurner Street, Paddington (the site).
The site and its context
2 The site is located on the northern side of Gurner Street with rear access to Gurner Lane. It is about 4 m wide, 30.5 m long with a site area of about 120 sq m. There is a change in level of about 3 m between the front and the rear of the site. The site is developed with a 2 storey Victorian terrace which is part of a group of nine terraces.
3 Surrounding development is predominantly residential. Glenmore Public School is opposite the rear of the site, off Gurner Lane. The Five Ways shops and Trumper Park are nearby.
4 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The relevant objectives of the plan in cl 2 include:
(g) in relation to heritage conservation:
- (i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement;
(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas;
(iiii) to encourage the restoration and reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas.
Objective (l) in relation to the excavation of land:
- (ii) to minimise any impact on the amenity of the neighbourhood;
……
(iv) to avoid potential damage to neighbouring public and private land and buildings which may result from the proposed excavation works.
5 Clause 8(5) of LEP 95 provides:
The council shall not grant consent to the carrying out of development on land to which the plan applies unless the council is of the opinion that the carrying out of the development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.
6 Clause 18 of LEP 95 provides:
- (1) When considering an application for consent for development involving the excavation of any land the council shall have regard to how the excavation may temporarily or permanently affect:
- (a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process;
(b) public safety;
(c) vehicle and pedestrian movements;
(d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting;
(e) the natural landforms and vegetation; and
(f) natural water runoff patterns.
7 The site is within the Paddington Heritage Conservation Area. Clause 28(2) of LEP 1995 requires a consideration of the effect of the proposed development on the significance of the conservation area.
8 The Paddington Development Control Plan 1999 (“the DCP”) is also relevant. This does not include specific controls in relation to excavation but the overall objectives of the controls are to maintain the national heritage significance of Paddington.
9 Draft Paddington Heritage Conservation Area Development Control Plan 2006 (“the Draft DCP”) was publicly exhibited in September to November 2006. The draft DCP includes provisions in relation to excavation, which would not permit excavation below the principal building form, being the original front building section.
10 In response to the exhibition of the draft DCP, a number of submissions were received in relation to excavation and other controls. Council has deferred consideration of the draft DCP and established a Peer and Community Review Committee.
11 Lloyd J in Carstens v Pittwater (1999) NSWLEC 249 at para 25 concluded that:
- …the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow….
12 The draft DCP is a matter that can be considered, however, the current review of the draft DCP and the uncertainty as to the final form of its provisions and the timetable for adoption mean that the draft DCP can be given little weight. It provides no further guidance than the matters, which are required to be considered under LEP 1995.
The proposal
13 The application is for demolition and reconstruction of the rear 2-storey wing including a new balcony and attic with a rear dormer window in the main roof, demolition of the retaining wall to the rear laneway and excavation of the rear yard for a new garage and laundry. The excavation is proposed to continue as a corridor cellar to underneath the principal building form. A new bathroom and stairwell is proposed at the end of the corridor with excavation for the new stairwell extending to the common boundary, abutting the common party wall to No. 16 Gurner Street, Paddington.
14 The application was lodged on 3 May 2006. It was notified and one submission from the Paddington Society was received. This raised issues in relation to the extent of excavation, deep soil planting and design issues relating to the rear balcony and dormer window. The application was amended to address these design issues, which were also raised by council’s heritage planner. Council refused the application on 4 July 2006.
15 A new application (531/2006/1) was lodged on 23 August 2006. This sought approval for the same works as the application before the Court but did not include the excavation for the corridor, bathroom and stairs below the principal building form. This application was approved on 9 November 2006.
16 The Statement of Issues contained four issues. These issues can be summarised into the key issue of whether the proposed excavation is acceptable given:
- (i) the risk of structural damage to the original fabric of the house and to adjoining properties; and
(ii) the amenity benefits of the proposal do not outweigh the potential risks.
17 The Court visited the site and heard expert evidence from Mr J Mostyn, the Court-appointed geotechnical engineer. Mr Mostyn recognised council’s concerns about the risks involved in the excavation. He noted that the list of properties with excavation issues provided by council is consistent with his opinion about potential risk. He stated:
It is my experience that excavation of basements in sand immediately adjacent to masonry buildings often results in damage to those buildings….even small deformations (of the order of millimetres, not tens of millimetres) of old masonry buildings can lead to cracking….the proposed excavation, particularly the depth, less so the width is of a scale that will require careful design and close control during construction to ensure that the serviceability of adjacent and overlying heritage fabric is not adversely impacted.
18 In assessing the degree of risk involved Mr Mostyn stated:
It is my experience that “normal” controls do not always result in works with little or no damage to adjacent structures. Here by damage, I mean damage that leads to civil claims…Further by “normal” controls, I mean the process of Development Approval, Construction Certificate, PCA and builder under contract to complete a design with usual architectural and engineering inputs.
It is my opinion that if the work were to be undertaken with a cavalier approach to ensuring minimum deformation of adjacent walls, then there would be a high risk of damage to the heritage fabric. By high risk I mean over50% probability of damage.
I assess that approximately 10% of excavations of this scale in sand result in damage, as defined above, to adjacent masonry walls. It is my experience that in the usual course of events, only some of these, generally the more significant cracking, lead to litigation.
In my opinion this higher level of control should include:I conclude from the above that if there is to be a high level of confidence in the work being planned and executed in such a manner that it does not adversely affect the heritage fabric then a higher level of control will be required than usual.
- (a) more constraints at approval,
(b) careful and verified design and
(c) construction in accordance with the design.
19 Mr Mostyn assessed the dilapidation report and the geotechnical investigation report prepared by Martens Consulting Engineers and submitted as part of the development application. He considered that this represented “normal” practice and as such would attract a 10% risk.
20 To reduce the risk Mr Mostyn proposes a series of conditions of consent. The applicant has accepted the imposition of these conditions which include requirements for:
- (i) The design process – a definition of damage, specific matters that must be addressed in the design, a monitoring process to ensure that deformation is within design limits and vibration monitoring procedures.
(ii) Certification - the design is to be certified by the designer and independently verified and certified by a geotechnical or structural engineer and the builder.
21 Mr Mostyn recognised that these conditions were onerous and would impose extra cost on the development. He stated that they are common in major infrastructure works but were unusual in a domestic situation. In his opinion, aspects of the design proposed by Martens Consulting would probably be amended as a consequence of the design process proposed in the conditions. Nonetheless, he was confident that the conditions could be satisfied and the risks reduced to a minimal level.
22 Mr Mostyn addressed issues of noise, vibration and dust likely to arise from the excavation and found these to have acceptable impacts.
23 A traffic report by John Cody Consulting examined the truck traffic implications of the excavation. This report found the level of truck movements to be relatively minor and the excavation to be for a limited time. The report recommended that truck movements should not be permitted during school pick-up and drop-off times and a limit on the size of trucks to avoid conflict with parents and children using the school. The applicant has accepted these as conditions of consent.
24 Clause 18 of LEP 1995 requires a consideration of how the excavation may temporarily or permanently affect:
- (a) the amenity of the neighbourhood by way of noise, vibration and dust,
(b) public safety,
(c) vehicle movements,
(d) heritage items.
25 Dr Berveling, for the applicant, submitted that (d) was not relevant as it refers to heritage items and the site is not a heritage item but within a conservation area. While this submission may be correct, it is clearly relevant to consider the effect of the proposed excavation on the heritage significance of the conservation area as required by cl 28(2) of LEP 1995. It needs to be demonstrated that the proposal is not likely to result in damage to the terrace or to its adjoining terraces, which are contributory items in the Paddington Conservation Area. Damage to this terrace group would adversely impact the significance of the area.
26 This consideration and that of the risk to public safety, are the key issues in this case. The impact of the proposal on the amenity of the neighbourhood and the impact on traffic and pedestrian movements are acceptable.
27 Mr Connell’s submission, for the council, is that the objectives of LEP 1995 in relation to excavation of land have not been met. He submits that the proposal does not minimise any impact on the amenity of the neighbourhood or avoid potential damage. He states that while the area to be excavated provides some benefit to the owners, it is unreasonable when weighed against the potential risks. An acceptable standard of residential accommodation has been approved in DA 531/2006/1. The current proposal only provides internal stair access for the garage, a third bathroom and a corridor where wine can be stored. Mr Connell submits these uses are unreasonable given the extent of excavation proposed, the degree of risk, and that the accommodation could be provided elsewhere.
28 Mr Connell submitted that the conditions proposed by Mr Mostyn provide a convoluted process that does not give the certainty required by cl 18 of LEP 1995. In particular, cl 18(2) provides that consent not to be granted unless specialist reports have been considered. In this regard the specialist reports submitted with the application were unacceptable and Mr Connell submitted consent should be refused.
29 Dr Berveling’s submitted that the DA reports and the subsequent report of Mr Mostyn satisfied the requirements of cl 18(2). Further, he submitted that absent such reports it was open to the Court to refuse the application but also to approve the application. Both Mr Connell and Dr Berveling referred to the decision of Talbot J in Ferella v Woollahra Municipal Council (2002) NSWLEC 233 where his Honour stated at para 5:
- I read cl 18(2) as giving the council an option to grant or not to grant consent if the reports are not available.
30 His Honour at para 4 said:
…Clause 18 must be read in its entirety. In particular, regard must be had to the requirements of cl 18(1), which requires the council, and again, hence also the Court, to have regard to the effect the excavation may have on a number of matters. The contention by the applicant could, in my view, lead to an absurd and inconsistent interpretation of cl 18. The consent authority is expected to give serious consideration to the consequences of a proposed excavation. If the mere submissions of the reports alone satisfied the requirement of the clause, the consent authority could not fulfil that task.”
31 The key obligation of the Court is to give serious consideration to the consequences of the proposed excavation. From the evidence, I am satisfied that the consequences, particularly the likely risk of the excavation, have been considered and that the risk has been minimised for the extent of excavation proposed.
32 Mr Mostyn has reviewed the documents submitted with the development application. He found some inadequacies in these documents largely as a result of the increased risk posed by the excavation in sand and beneath a Victorian terrace. Mr Mostyn considered the design proposed to be “normal” and that the resultant risk would be 10%. Such a level of risk I find to be unacceptable, however, Mr Mostyn has proposed conditions for a design process which involve verification and certification and interconnects with the building process that reduces the level of risk to a minimal level of about 1%. The applicant has accepted these conditions.
33 While the conditions are onerous, the expert evidence before me is that they can be implemented and that the level of risk is acceptable. I therefore accept that together with the DA reports, the conditions provide the degree of certainty required for me to be satisfied that the excavation can be undertaken in a manner that satisfies cl 18 and the objectives of LEP 1995.
34 I do not accept Mr Connell’s submission that the proposal is not consistent with the objectives of LEP 1995 in that a reduction in the area to be excavated would minimise the impact on the amenity of the area. From the expert evidence before me the impacts of the proposal are minimised and are acceptable.
35 In relation to the amount of deep soil planting raised by the Paddington Society, this complies with the DCP requirements and is marginally larger in this application than the amount approved in (DA 531/2006) due to the relocation of the stair. Council did not press this as an issue and I find the amount of deep soil planting to be acceptable.
ORDERS
36 The orders of the Court are therefore:
1. The appeal is upheld.
2. The development application (110/2006/1) for alterations and additions to an existing terrace house, including new basement garage, laundry and bathroom area and new attic space to existing roof at 14 Gurner Street, Paddington, is approved subject to conditions in Annexure A.
3. The exhibits, except Exhibits 1, 2, 8, B, C and J may be returned.
___________________
- Annelise Tuor
Commissioner of the Court
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