Wilkie v Blacktown City Council

[2012] NSWLEC 1223

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wilkie v Blacktown City Council [2012] NSWLEC 1223

Hearing dates:

16 June 2012, 6, July 2012, 9 August 2012

Decision date:

09 August 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

1. The appeal is upheld.

2. Development consent is granted to development No 10-2926 for alterations and additions to existing building at 106 Robert Street Riverstone, subject to conditions in Annexure A.

3. The exhibits may be returned except 1,2,4,A and G.

Catchwords:

Development application; dwelling house, BCA compliance, bushfire, consistency with zone objectives.

Legislation Cited:

EP & A Act 1979
Blacktown LEP 1988
SEPP (Sydney Regional Growth Centres)
SREP No 20 - Hawkesbury Nepean River

Category:

Principal judgment

Parties:

Ms S Wilkie (Applicant)

Blacktown City Council (Respondent)

Representation:

Counsel
Mr M Fozzard (Applicant)

Mr C Zoppo (Respondent)
Solicitors
Frasers Legal (Applicant)

Sparke Helmore (Respondent)

File Number(s):

10012 of 2012

Judgment

Background

1. This appeal is against council's refusal of a development application for alterations and additions to an existing building for its use as a dwelling. It is located at 106 Robert Street Riverstone.

1. The existing building was originally constructed as a garage and the proposal is to utilise its area together with extensions to create a three bedroom with study dwelling.

1. Initially for the appeal, the following contentions were identified:

• Building Code of Australia (BCA) compliance, with particular reference to the adequacy of waterproofing membrane for the existing garage area, as required by the BCA.
• Bushfire matters.
• Consistency with the Blacktown Local Environmental Plan 2000 (BLEP) objectives and Development Control Plan.

1. The appeal commenced by way of a s 34 Conference and the bushfire and planning control issues substantially resolved in a manner that could be covered by agreed conditions.

1. As there was no agreement to the BCA contention, the s 34C was terminated and the appeal proceeded to determination.

Planning Controls

State Environmental Planning Policies

1. The subject land is within the area covered by State Environmental Planning Policy (Sydney Region Growth Centres) 2006. It is situated within the Marsden Park North Precinct however no Precinct Plan has been prepared.

1. Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River applies to the land, however no specific provisions are contained in the REP.

Local Environmental Plans

1. Blacktown Local Environmental Plan, 1988 (BLEP) applies to the land and the subject land is zoned 1(a) General Rural. Development consent is required for the erection and use of a dwelling.

1. The objectives of the zone are:

(a)   To ensure that actual or potential agriculturally productive land is not withdrawn unnecessarily from production,

(b)   To ensure that development in rural areas is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services,

(c)   To provide for urban support functions, and

(d)   To ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands.

1. Clause 9(3) of the BLEP provides that except as otherwise provided by the BLEP, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

1. The subject land is also subject to the provisions of cl 12(3) of the BLEP which states:

12 Dwellings in rural zones:

(1) In this clause:

parcel, in relation to land, includes an area of adjoining or adjacent land held in the same ownership.

(2) Subject to subclauses (3)-(5), a dwelling shall not be erected on a parcel of land within Zone No 1(a) unless the parcel of land has an area of not less than 4,000 square metres.

(3) Notwithstanding subclause (2), a dwelling shall not be erected on a parcel of land within Zone No 1(a) and marked "Clause 12(3)" on the map unless the parcel of land has an area of not less than 10 hectares.

(4) ...

Development Control Plans

1. Blacktown Development Control Plan 2003 (BDCP) applies to the land. Particularly relevant is Part A, Introduction and General Guidelines, and Part B, Development in the Rural Zones.

1. Part B 4.0 provides that an applicant proposing to erect a dwelling house on land within a rural zone should demonstrate the proposed siting of the dwelling house maximises the natural advantages of the land in terms of:

(c) retaining the existing vegetation on the land

The evidence

1. In response to the BCA issue, evidence was presented by:

• Mr J Maglis: Applicant's consulting engineer/Building Surveyor
• Mr A Whitehouse: Respondent's Building Surveyor

1. Mr Maglis undertook a site inspection and assessed the existing building and also took some moisture readings to assess the performance of the existing slab for "dampness" relative to the BCA provisions.

1. The BCA performance provisions are contained within P2.2.3 and provide for:

NSW P2.2.3 Dampness

(a)Moisture from the ground must be prevented from causing:

1.Unhealthy or dangerous conditions, or loss of amenity for occupants; and

2.Undue dampness or deterioration of building elements.

(b)Barriers installed beneath slab on ground construction for the purposes of (a) must have a high resistance to damage during construction.

Limitation:

P2.2.3 does not apply to a class 10 building where in the particular case there is no necessity for compliance.

1. From his assessment, Mr Maglis concluded:

Vapour barrier

Inspection of the perimeter of dwellings reinforced concrete slab on ground revealed a continuous PVC vapour barrier to the undersides of the slab that appeared to be intact and serviceable. Testing of the internal floor surfaces within the dwelling with an electronic moisture meter did not reveal any high level dampness and the vapour barrier appears to be functioning as intended and deemed adequate.

1. Against this Mr Whitehouse also inspected the building and says:

• The only evidence of a damp-proof membrane is one small portion of the slab exposed on the eastern side of the structure and there is no evidence of a membrane installed to other parts of the slab or exterior that was carried out between 2008 - 2010. It is unknown whether any joining of a membrane has been properly overlapped and sealed.
• That in the absence of detailed evidence on the placement of an appropriate moisture barrier that it would be necessary to place a topping slab over the entire floor of the structure. The topping slab is a slab, which is laid over the existing slabs with a damp-proof membrane between it and the existing slabs. This would also require the frame of the structure to be altered to fit atop the new slab.

Conclusion

1. In determining this matter I have considered the evidence, submissions and undertaken a view. The threshold issue concerns the adequacy of existing waterproofing against the dampness of the existing slabs.

1. Insofar as Mr Maglis indicated the extent of the externally visible membrane, this is a larger area than observed by Mr Whitehouse. From my observations, I consider the extent of visible membrane quite limited and not discernible on the western and southern side, due to paths and other works.

1. This causes me some concern as to whether the membrane is continuous under the entire slab. Consequently, I give diminished weight to Mr Maglis' assumption that it is usual to place a membrane under all slabs including garages, and that is the likely situation in the subject circumstances. In this regard, I note that the BCA does not require such membrane under cl 10 Buildings such as garages.

1. I do not consider the visual assessment of Mr Maglis' reliable so as to conclude there is any satisfactory, continuous membrane under the slab.

1. Next, I note that he undertook moisture readings. Unfortunately the basis for those readings was not documented in a form tendered to the Court for assessment.

1. Nevertheless he says that the moisture readings were under 20% and not high considering the above 25% would be a high reading requiring rectification.

1. In light of the differing conclusions by the building experts, they discussed some options to possibly remedy any deficiencies in the dampness control. This includes the provision of a topping slab incorporating a waterproof membrane. Apparently this represents "current practice" to address the BCA provision where this problem occurs.

1. Following the submissions however, I am satisfied that the determination of an existing membrane could be undertaken in a more detailed manner and it is a matter that could reasonably be subject to a deferred commencement condition. In this regard I am satisfied that if this issue is adequately addressed that the environmental impacts will be acceptable.

1. The deferred commencement condition should require the assessment of the waterproofing membrane under the existing slab resulting in a report to council confirming that the waterproofing satisfies the BCA requirements or that an alternative solution is available and can be completed prior to the other conditions being commenced. I think this is a fundamental matter to be satisfied prior to the other conditions of consent becoming operational.

1. It seems to me that this approach is consistent with that stated by Talbot J in the matter of Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 218, wherein he said:

8. As Mr McClellan points out, s 80(3), in conjunction with reg 67 of the Environmental Planning and Assessment Regulation 1994 (the Regulation), defers the operation or commencement of the consent in the same way as its predecessor s 91AA did. Its terms explicitly refer to the grant of development consent subject to a condition. In other words, a consent granted pursuant to s 80(3) must be in respect of a development which can be identified, so that ultimately the consent can be acted upon when the deferred commencement condition is satisfied, by production of evidence to satisfy the consent authority as to the matter specified in the condition.

1. In conclusion, I accept that the parties agree to all other issues and that the proposal is generally consistent with the zone objectives.

Court Orders

1. The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to development No 10-2926 for alterations and additions to existing building at 106 Robert Street Riverstone, subject to conditions in Annexure A.

(3)   The exhibits may be returned except 1, 2, 4, A and G.

R Hussey

Commissioner of the Court

Decision last updated: 14 August 2012