Australia, May 22 -- New South Wales Land and Environment Court issued text of the following judgement on April 22:

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council (the Council) of development application No DA2023/1213 (the DA) for 'alterations and additions' involving excavation to construct a tunnel under an existing house and extend the tunnel to a lift to be installed at the rear of the house, and related changes to the existing underground garage (proposed development) at 86 Bungan Head Road, Newport, NSW 2106 (the Site).

2. The appeal was subject to conciliation starting on Site, in accordance with s34AA(2)(a) of the Land and Environment Court 1979 (LEC Act). As no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings moved to a hearing forthwith in Court pursuant to s34AA(2)(b)(i) LEC Act.

3. The cliff tops of the Northern Beaches area of Sydney command magnificent views up and down the eastern coast of NSW and to the Pacific Ocean. These views create highly sought after locations in which to live and are consequently populated by what can be described as commanding residential properties.

4. The dwelling at 86 Bungan Head Road, currently owned and occupied by the Applicants, is one such house with commanding views to the Pacific Ocean and beyond.

5. The DA application form to the Council under "description of development" seeks approval for 'alterations and additions including internal lift and reconfigured garage floor area': Ex A tab 2, page 2. It does not mention that the proposed development also includes the excavation and construction under the house of a tunnel from street level to the rear yard of the 4-storey house and related changes to the existing garage area.

6. On an examination of the plans and prescribed documents that are attached to the DA form and now form part of the class 1 application, the proposed works in fact involve a major engineering project to be undertaken underneath a single residential dwelling in a steep location opposite the cliffs of Bungan Head. The major issue in this appeal is the proposed construction of the tunnel and lift.

7. The proposed development involves excavating and constructing an approximate 48m2 (6.0 m x 8.0 m) car bay with storage garage, 18.7 long horizontal tunnel (circa 4.6m wide x 3.4m high) from the rear of the proposed new car bay and a 3.4m x 3.7m 16 m high lift shaft, located at the rear of the house. The total excavated volume is estimated at 623 m2. The overall length of the tunnel is estimated at 22.4 m (18.7m + 3.7m): Ref: Douglas Partners report, Ex A tab 15, page 1.

8. It is important to make clear that the works proposed are not staged in the usual hypothetical new dwelling house DA sequence on a similar block which starts with demolition of existing structures, earthworks to clear site, excavate for underground tunnel, build 4 storey house and install lift from end of tunnel to rear level land, install swimming pool, cabana and landscaping. Rather the sequence is the other way around. House, swimming pool and landscaping completed first then excavate under the existing house from front to back for a tunnel to install a lift at the rear. Therein lies the difficulty with the proposed development.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19640cb01843ca6b38483654)

Disclaimer: Curated by HT Syndication.