El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25 (2 February 2023)

Last Updated: 5 April 2023

Supreme Court New South Wales

Case Name:	El Khouri & Anor v Gemaveld Pty Ltd & Ors
Medium Neutral Citation:	[2023] NSWSC 25
Hearing Date(s):	28 November and 15 December 2022
Decision Date:	2 February 2023
Jurisdiction:	Equity
Before:	White J
Decision:	I answer the questions remitted as follows: (1) Q: For the purposes of clause 4.3(2) of the Kogarah LEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument? A: Yes, but this did not appear from the plans submitted to the consent authority. (2) Q: If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent? A: No. (3) Q: For the purposes of the notification of the DA, was a written notice forwarded to the Third Applicant within the meaning of the Georges River Council – Community Engagement Strategy 2018 – 2028 prior to 7 April 2022? A: Unnecessary to answer. (4) Q: If the answer to (3) is no, having regard to the environmental impacts of the proposed development on the applicants was any denial of procedural fairness material? A: Does not arise.
Catchwords:	ENVIRONMENT AND PLANNING – judicial review of decision to grant development consent to respondent for erection of new dwelling-house and associated structures – development consent granted to respondent by a Commissioner of the Land and Environment Court on a consent basis without intervention by applicants – where applicants contend that the Land and Environment Court as consent authority had no jurisdiction to grant consent because height limit was exceeded and there was no application to vary the standard as required by the Local Environmental Plan – factual questions arising on summons for judicial review remitted to Equity Division for determination - where the parties dispute the method of calculating the height of a dwelling-house in accordance with cl 4.3 of the Kogarah Local Environmental Plan 2012 – where respondent alleges that applicants excavated parts of the site said to contravene height limit – held that the proposed building exceeds maximum building height, though that is not apparent from the plans submitted to the consent authority – held that applicants did not excavate relevant parts of respondent’s land – unnecessary to answer other questions
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW), s 34(3) Supreme Court Act 1970 (NSW), ss 46, 51(4) Environmental Planning and Assessment Regulation 2000 (NSW)
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137 Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867 Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182 Young v King [2016] NSWCA 282
Category:	Procedural rulings
Parties:	Peter John El Khouri (First Applicant) Goumana Therese El Khouri (Second Applicant) Effi Theodorakopoulos (Third Applicant) Gemaveld Pty Ltd (First Respondent) Land and Environment Court (Second Respondent) Georges River Council (Third Respondent)
Representation:	Counsel: J Lazarus SC with J Farrell (Applicants) C Leggat SC with S Berveling and C Koikas (First Respondent) Submitting appearance (Second Respondent) R M O’Gorman-Hughes (Third Respondent) Solicitors: Pikes & Verekers Lawyers (Applicants) Salim Rutherford Lawyers (First Respondent) New South Wales Crown Solicitor (Third Respondent)
File Number(s):	2022/00197368

JUDGMENT

1. HIS HONOUR: On 6 July 2022, the applicants, Mr Peter and Ms Goumana El Khouri and Ms Effi Theodorakopoulos, filed a summons for judicial review in the Court of Appeal. The respondents to that summons are Gemaveld Pty Ltd (“Gemaveld”), the Land and Environment Court, and the Georges River Council. The Land and Environment Court filed a submitting appearance.
2. Gemaveld is a company controlled by Mr Antonio Maiolo, who lives at 117 Stuart Street, Blakehurst. Gemaveld is the registered proprietor of that property. On 29 May 2020 a firm of architects engaged by it lodged a Development Application seeking development approval for demolition of the existing building and erection of a new dwelling house, swimming pool and associated landscape works with the Georges River Council.^[1] The application was refused on 15 October 2020 by the Georges River Local Planning Panel.^[2]
3. On 15 October 2021, Gemaveld commenced Class 1 proceedings in the Land and Environment Court, appealing against the refusal of the application.
4. On 29 March 2022, Gemaveld and the Council filed an agreement in the Land and Environment Court as to the terms of a decision that would be acceptable to them.
5. On 7 April 2022, a Commissioner of the Land and Environment Court granted development approval on conditions in accordance with that agreement pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW) (Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182).
6. The applicants were not parties to the proceedings in the Land and Environment Court.
7. By the summons as subsequently amended on 2 August 2022 the applicants seek judicial review of the decision of the Land and Environment Court. They contend that the order of the Land and Environment Court was void on grounds that may be summarised as follows:

(a) the Court had no power to grant consent because the height of the proposed development exceeded the relevant height control in the Kogarah Local Environmental Plan (“LEP”) and there was no request to vary that standard as required by cl 4.6 of that LEP;

(b) the decision to grant the development consent was affected by jurisdictional error as the development application was not notified in accordance with the community participation requirements of the Environmental Planning and Assessment Act 1979 (NSW) in that the third applicant, Ms Theodorakopoulos, who is an adjoining land owner to the site, was not notified of the development application and was thereby denied procedural fairness.

8. The application for judicial review is assigned to the Court of Appeal. It raised questions of fact that would not be appropriate for determination before a bench of three. The parties resisted the proceedings being referred to the Land and Environment Court to determine questions of fact and I was satisfied that that course would not be appropriate (Young v King [2016] NSWCA 282 at [18]; Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867 at [11]- [16]; [2018] NSWCA 137 at [27]- [33]).
9. The matter came before me as Referrals Judge in my capacity as a judge of appeal. I doubted that s 46 of the Supreme Court Act 1970 (NSW) conferred authority on a single judge of appeal, acting in that capacity, to decide the separate questions of fact that appeared to arise. I was satisfied that it was appropriate pursuant to s 51(4) of the Supreme Court Act to remit separate questions of fact that arose in the proceedings to a Division for determination by a judge of a Division.
10. On 9 November 2022, I made the following order:

“Pursuant to section 51(4) of the Supreme Court Act 1970, the Court orders that part of the proceedings be remitted to the Equity Division for determination of the following questions arising in the proceedings:

1) For the purposes of clause 4.3(2) of the KLEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument?

2) If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent?

3) For the purposes of the notification of the DA, was a written notice forwarded to the Third Applicant within the meaning of the Georges River Council – Community Engagement Strategy 2018 – 2028 prior to 7 April 2022?

4) If the answer to (3) is no, having regard to the environmental impacts of the proposed development on the applicants was any denial of procedural fairness material?

In these questions,

• the Consent is a reference to development consent DA No. 2020/0247 granted by the Land and Environment Court on 7 April 2022 for demolition works, construction of a multi level dwelling house, swimming pool, front fence, landscaping and site works on Lot B DP 33563 known as 117 Stuart Street Blakehurst.

• the DA is Development Application No. 2020/0247 lodged with the third respondent for demolition works, construction of a multi level dwelling house, swimming pool, front fence, landscaping and site works on Lot B DP 33563 known as 117 Stuart Street Blakehurst.

• the Site is Lot B DP 33563 known as 117 Stuart Street, Blakehurst.

• the KLEP is Kogarah Local Environmental Plan 2012.”

11. I listed the above questions for hearing on 28 November 2022 before me in my capacity as a judge of the Equity Division.
12. The hearing had been estimated to take one day. The evidence was not concluded at the end of the first day of hearing and the hearing had to be adjourned. It was completed on 15 December 2022.
13. The Council took a neutral position on questions 1, 2 and 4, but adduced evidence that it had given notice to Ms Theodorakopoulos for the purposes of question 3.
14. On the evening of 14 December 2022, the solicitors for Mr and Mrs El Khouri and Ms Theodorakopoulos advised my Associate that, in the light of recent evidence filed by the Council, the applicants no longer pressed Grounds 2 and 3 of the Amended Summons and, as a consequence, it was no longer necessary for the Court to determine questions 3 and 4. Accordingly, question 3 will be answered “not necessary to answer” and question 4 does not arise.
15. Gemaveld submitted and contends in its response to the Amended Summons for Judicial Review, that whether or not the height of the proposed building exceeds the height limit prescribed by the Kogarah LEP is not a fact on which the jurisdiction of the Land and Environment Court depended. That is a question of law for determination by the Court of Appeal, if need be, but is not raised by the questions for determination. Nonetheless Gemaveld raised issues which may be relevant to that question which I have addressed below.

Question 1

16. Clause 4.3 of the Kogarah LEP provided:

“4.3 Height of buildings

1. The objectives of this clause are as follows –

(a) to establish the maximum height for buildings,
(b) to minimise the impact of overshadowing, visual impact and loss of privacy through height controls,
(c) to provide appropriate scale and intensity of development through height controls.

2. The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.^[3]

17. The maximum height shown on the relevant Height of the Buildings Map is 9 metres.
18. Building height or height of buildings is relevantly defined as follows:

“(a) in relation to the height of a building in metres – the vertical distance from the ground level (existing) to the highest point of the building”

19. Ground level (existing) is defined as follows:

“ground level (existing) means the existing level of a site at any point”

20. The subject property at 117 Stuart Street is on a sloping block of land which runs from the street frontage to the Georges River. The plans approved by the Land and Environment Court included drawing DA-6.02, which is reproduced as Annexure A (761698, pdf) to these reasons.
21. Exhibit 1 is a blown-up copy of part of drawing DA-6.02 in the vicinity of the location where the applicants contend the proposed building will exceed the maximum building height. Exhibit 1 is reproduced as /asset/186061ffb8b3c310365db1f1.pdf/asset/186061ffb8b3c310365db1f1.pdfAnnexure B (1635438, pdf).
22. In its written submissions Gemaveld referred to decisions of the Land and Environment Court which grapple with the problem where a building to be demolished occupies the whole of a site and there is no natural existing ground level on the site because the whole of the natural ground level has been excavated to provide foundations or a basement for the existing building. No such issue arises in this case and I do not find those authorities to be of assistance.
23. In their final submissions, counsel for Gemaveld submitted that the maximum building height for the proposed dwelling house should be measured vertically from the plane of the highest part of the proposed building above sea level (being the solar panels depicted on Annexure A and Annexure B) to the existing ground level. The applicants did not contend that there was a height breach in that location.^[4] Gemaveld’s submission had not been identified in its Response to the Amended Summons, nor in its original written submissions. It does not raise a disputed question of fact, but it does need to be addressed in order for me to answer question 1.
24. I do not accept Gemaveld’s submission. The definition of “height of building” provides that the height of a building is measured not from the highest point of the proposed building vertically downwards to existing ground level, but from existing ground level vertically upwards to the highest point of the proposed building above existing ground level. Existing ground level is the existing level of a site at any point. Accordingly, height is to be measured from any point of the existing ground level over which the proposed building is to be erected to the highest point (measured vertically) of the proposed building above any point at existing ground level.
25. If the only purpose of the prescription of maximum building heights were to regulate the skyline then there might be much to be said for Gemaveld’s construction. But it is clear from cl 4.3(1)(c) that one of the objectives of establishing maximum height for buildings was to regulate the scale of buildings, not just maximum height above sea levels.
26. Gemaveld denied that the height of the proposed building above any point of existing ground level exceeded the maximum building height. It acknowledged that, on the particular sloping site involved, reasonable minds could differ on that question.
27. Gemaveld also submitted that, for the purposes of the operation of the Kogarah LEP definition of building height, the building height is to be measured by reference to the documents that are required to form part of the Development Application for the proposed building. It submitted that the Environmental Planning and Assessment Regulation 2000 (NSW), which specifies what documents are to accompany a development application, does not require a survey of every point of existing ground level below the proposed building. It submitted that, on the plans provided with the development application to the consent authority, the proposed building did not contravene the maximum building height. For the reasons below I accept this last submission.
28. Clause 50 of the Environmental Planning and Assessment Regulation (as in force on 29 May 2020) provided that a Development Application must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1 to the Regulation. Clause 2 of Sch 1 provided that a Development Application must be accompanied by documents including a site plan that referred to existing levels of the land in relation to buildings and roads (cl 2(2)(d)) and a sketch plan that indicated, amongst other things, elevations and sections showing heights of any proposed buildings (other than temporary structures) and proposed finished levels of the land in relation to existing and proposed buildings and roads (cl 2(3)(c) and (d)).
29. The drawings DA-6.02 reproduced as Annexure A, and Exhibit 1 being a blown-up copy of part of that drawing, show a green line which at times is the same as the solid black line. The line coloured in green appears to be (and I am satisfied it is) the architect’s depiction of ground level (existing) that is, the current natural surface of the land. The building shown is the as-yet-unbuilt building for which development approval was given. An orange line is drawn 9 metres above the green line. On the face of the drawing the proposed building would comply with the 9 metre height limit.
30. The applicants contended to the contrary in reliance on evidence given by a town planner, a Mr Steven Layman. Referring to plan DA-6.02, Mr Layman deposed that the plan indicated that, on the northern elevation, the level described as ground level, which approximated the roof of Level -1, was at RL (Reduced Level) 29.1. This was common ground. He deposed that the floor level of Level -3 immediately below the north-western corner of Level -1 was shown at RL 18. The difference between those points is 11.1 metres.
31. However, Mr Layman misread the plan. The 11.1 metre height difference is not the difference between the proposed height of the building and the existing ground level, but the difference between the proposed height of the building and the depth to which the land will be excavated as part of the building works. That is, with respect, self-evident from the plan. The surveyor called by the applicants, Mr Victor Mansell, accepted that the green dotted line was intended to record the ground level (existing) at that particular point of the site.^[5] The orange dotted line reflects a 9 metre height plane above the green dotted line.^[6]
32. Mr Layman was unable to say what the dotted green line might be.^[7] He interpreted the solid black line to be the ground level (existing).^[8] I do not accept that that is so. The Environmental Planning and Assessment Regulation required the applicant to show both the existing ground level and the proposed finished levels of the land and that is what drawing DA-6.02 purports to do.
33. The applicants submitted that, as a surveyor, Mr Mansell’s evidence in cross-examination relating to the interpretation of the architectural plans was of little probative value. They correctly submitted that Gemaveld failed to call the author of the architectural plans or its own expert with appropriate expertise to interpret them. But I do not accept that Mr Layman as a town planner had any greater expertise in this regard than did Mr Mansell. Mr Layman said that the convention for depicting a ground line on an elevation is to show the ground line in a heavy continuous line such as the black line.^[9] But he was not able to say what the dotted green line might be. Given that the Environmental Planning and Assessment Regulation required a depiction of both the existing ground level and the proposed finished level, the obvious implication is that the green dotted line represents the existing ground level and the continuous black line represents the proposed finished level. That is how Mr Mansell interpreted the drawings.
34. The applicants submitted that Mr Layman had proffered an explanation for the discrepancy between the dotted green line and the heavy black line being that it was attributable to the cross fall on the site. As I understood the submission, it was that the green dotted line represented a ground level at 117 Stuart Street away from the boundary with 115 Stuart Street and closer to 121 Stuart Street. That is not what Mr Layman said. He said:

“7. It appears that the nominated ground levels in the North and South Elevations do not take into account the cross fall of the Site or the fall away of the rock platform under the north-western most part of level 1of the building. The architectural plans omit the spot levels in this location.”^[10]

35. The cross fall to which Mr Layman referred was not a cross fall from 121 Stuart Street to 115 Stuart Street, but the cross fall from Stuart Street to Georges River.
36. The applicants also submitted that a plan entitled “115 Stuart Street Site Analysis”, being DA-3.01, depicted the fall of the existing ground levels with a heavy black line. That is true, but it is not an explanation for the different lines on DA-6.02.
37. The applicants also submitted that a cut and fill plan (DA-9.07) showed that no cut and fill was proposed in the area subject to the height exceedance. No question was asked of any witness about the cut and fill plan. It is not self-evident, as the applicants submitted, that it can be discerned from the cut and fill plan that if the black line on drawing DA-6.02 was to represent excavated levels post-development, that this was inconsistent with the cut and fill plan.
38. For these reasons I do not accept Mr Layman’s evidence.
39. Mr Mansell accepted that the drawings provided to the Council as part of the Development Application showed that the building complied with the 9 metre height plane, including in respect of an area about which he gave evidence referred to below.^[11]
40. Mr Mansell attended 115 Stuart Street on 5 May 2022 to determine the ground levels of 117 Stuart Street at the north western corner of Level 1 of the proposed building. He conducted a survey of part of 117 Stuart Street from within the boundary of 115 Stuart Street and deposed as follows:

“I found:

(a) Various ground levels which are shown in red on the diagram attached and marked ‘E’ (also referred to as Sheet 2 of our survey report). The levels in black are those from the merged two surveys of 2004 and 2016 in annexure ‘D’.

(b) One of the levels I found on site was a natural surface at ground level of RL 17.50 for the point of the north western corner of Level 1 of the proposed building at the Site. This is marked with a green asterisk (*) on the diagram attached as Annexure ‘E’.

(c) The asterisk point, and points directly above and below at other proposed levels, are shown marked up in handwriting by me on the GFA plan annexed hereto and marked ‘F’.

(d) At the asterisk point, for a maximum building height of 9m above ground level, the proposed building height should be RL 26.5 or lower. I have marked up in handwriting on architectural plan DA 6.02 Rev. F Mar 2022 by MKD Architects entitled North and South Elevation (North and South Elevation plan) to show that for a 9m building height, the proposed building height of RF 29.10 at the asterisk point would exceed the 9m building height plane by 2.6 m. The other parts of the north elevation of the proposed building that would breach the 9m height control are shown by the handwritten red dashed line, and the ground level is also shown below by another handwritten red dashed line. The North and South elevation plan so marked is annexed hereto and marked ‘G’.

(e) In addition to the asterisk point, an outline of the overall area on floor plan where the building height of RL29.10 of the proposed residence would exceed the 9 m heigh plane is shown in blue hatching on annexure E. The ground level at these points is less than RL 20.10.

...”

41. Annexure E to Mr Mansell’s affidavit is reproduced in these reasons as /asset/18606206b24f0669f678e18f.pdf/asset/18606206b24f0669f678e18f.pdfAnnexure C (1165858, pdf), Annexure F as /asset/1860620c677ab995e74daabc.pdf/asset/1860620c677ab995e74daabc.pdfAnnexure D (935502, pdf), and Annexure G as Annexure E (839568, pdf).
42. Mr Mansell did not say that his survey results meant that, in his opinion, the depiction of the green line on drawing DA-6.02 was wrong. He gave the following evidence:

“Q. Now, my question is this. To the extent that the depiction of the green line departs from your spot levels in your survey, do you say that that green line is correct or incorrect?

A. It may be correct for the area or the line that it is shown as. I don't know, other than I would assume it was the architect who prepared it. How he prepared it with surveying interpolation, I do not know. But then you should always consider every point to determine the nine metre height plane.”^[12]

43. Mr Mansell was cross-examined on an enlargement of an extract of drawing DA‑13.01, which was a survey that formed part of the Development Application. The extract became Exhibit 6. It is reproduced as Annexure F (1663754, pdf). In the course of Mr Mansell’s cross-examination, survey points that were referred to in his cross-examination were highlighted in green highlighter to make the transcript intelligible. (One point referred to in cross-examination (NS 20.54) should have been highlighted in green but was highlighted by me in yellow as being a further point referred to in cross-examination.) More importantly, Mr Mansell identified by highlighting in yellow the approximately triangular section that he said, to the best of his ability, without being able to take measurements, was the area which represented the blue hatched area of his drawing on Annexure E to his affidavit.
44. The survey shows a contour line moving in a southerly direction, with RLs of between 20.20 and 20.87 metres. As the roof of the proposed building above the hatched area identified by Mr Mansell would have an RL of 29.1 metres, if the ground level (existing) below that roof line were above 20.1 metres, the building would not contravene the height limits specified by cl 4.3(2) of the Kogarah LEP. Mr Mansell was asked about the contour line and agreed that it would be recognised surveying practice to take into account particular points, for example points 20.50 and 20.87, to describe a “ground level (existing)” for the purpose of setting a 9 metre height plane for the site.^[13] He agreed that it would be in accordance with recognised surveying practice to interpolate between a point shown as NS 20.50 and 20.73 on the survey (running from the top right diagonally to bottom left of the drawing) only in order to depict the ground level (existing) across the contour of the site, but only if one interpolated the other points in between.^[14] Right to left is also north east to south west. However, Mr Mansell did not accept that, consistently with recognised surveying practice, a surveyor would take levels as far away from the triangular marked area corresponding with the area he hatched blue to establish a height plane, being the areas shown as RS 20.29 and 20.30.^[15] He said that to interpolate a level, consistently with recognised surveying practice, it would be necessary to use other levels on Exhibit 6 which did not include the spot at RS 20.29 or RS 20.30 which he considered to be too far away from the area in question.^[16]
45. It was put to Mr Mansell that if there were any difference between the levels depicted on Exhibit 6 and the levels he derived on his survey taken from 115 Stuart Street, the levels shown on Exhibit 6 were more likely to be accurate than the levels he derived. He accepted that that would be so but only at the point that the level was shown.^[17]
46. Mr Mansell gave evidence as to how the survey of points on 117 Stuart Street was taken from the adjoining property.^[18] As one might expect, that did not depend upon his taking a digital measurement using theodolites to a spot on number 115 and then making a visual estimate or guess as to the difference in height between where he was located on number 115 and the spot whose height was to be determined on lot 117. He said:

“A. We have a laser theodolite so it sends out a signal, it will reflect off a particular point and it will then give us a reading in distance and in height.

Q. And what point are you aiming at?

A. It may be a rock, it may be a leaf; it could be anything that we can choose to pick.

Q. And in this case, where you determine or assess these figures which you have included in your report as being the levels on 117?

A. Correct.

Q. What did you do?

A. On exhibit six, there are shown, where I have highlighted the relevant area in yellow, there are a few points with crosses which say 20.44, top of retaining wall.

Q. Yes?

A. I have in my survey done a similar thing, taken a number of spots where the figures were shown in red on exhibit F, I think it was, in the original affidavit.

LEGGAT: Annexure E, Mr Mansell.

WITNESS: E.

HIS HONOUR:

Q. Annexure E, yes.

A. And we compare those when we are back in the office, to see if they are in close agreement. If it's an irregular wall, some of the points were plotting very close to each other, we assume then that those points are consistent with each other from the different planes. And then we will take other points below that level, because along that top of the wall and to the east, we did not really see any reason to say that the nine metre height plane could be exceeded with the natural levels that are shown. It was only in the area to the west.

Q. Well, correct me if I am wrong, as I understand it then, where you are standing on the location on property 115, you can determine the height above sea level of that property in the way you have described?

A. Correct.

Q. And then you have another device, or maybe it's the same one doing a different function, where you aim it at a point on property 117, and it will then give you what figure, what will be the, what will it show you from that?

A. It will give us a level of the point that is on 117.

Q. As a difference between where you are on 115 or adjusted to the

A. Well, we can set our level on 115. We know a level that we have started from on 115. And the measurement will automatically tell us what the level is on 117.”^[19]

47. He said that the level of accuracy would be accurate within 20mm.^[20]
48. Mr Mansell agreed in cross-examination that he was not saying that the bottom lines shown on Exhibit 1 were wrong or had been depicted wrongly.^[21] He said he had not verified them by survey and that he could only verify particular levels in an area that he surveyed himself. He said that the lines shown were usually taken along a section line. Every line is taken from an individual point. Once one moves from a section line you can get a different answer.^[22]
49. Gemaveld did not adduce any evidence from a surveyor, nor the architect who prepared the drawings showing, or purporting to show, the height planes.
50. I accept Mr Mansell’s evidence. His credit was not in issue. His evidence was uncontradicted and given carefully. He made appropriate but careful concessions. His concessions should not be extrapolated.
51. I accept that in the area Mr Mansell surveyed there was a point on the natural surface of the ground that was 11.6 metres below the proposed building height and that the area shown in the blue hatching in the plan that is Annexure E to his affidavit shows the area where the proposed residence would exceed the 9 metre height plane above the existing ground level. I conclude that if the green dotted line on Exhibit 1 that formed part of the approved drawings was intended to depict the existing ground level at all points rather than along a particular section line, the drawing was wrong.
52. Gemaveld submitted that the top section of Drawing DA-7.01 showed that at the location of the southern line (on Drawing DA-6.02) the 9 metre height limit was not exceeded. Mr Mansell agreed that a southern line on drawing DA‑6.02 went through the blue hatched area depicted by him where the height limit was exceeded. Gemaveld submitted that DA-7.01 showed that the 9 metre height limitation was not exceeded. I accept that that is so. I also accept on the basis of Mr Mansell’s evidence that in fact the height limit was exceeded.
53. Therefore I conclude that measuring from each point of existing ground level to the top of the proposed building the maximum height level would be exceeded in the area depicted by Mr Mansell. I also conclude that that was not apparent from the plans submitted which in this respect were in error.
54. Accordingly, I answer question 1, yes, but this did not appear from the plan submitted to the consent authority.

Question 2

55. In its response to the Summons, Gemaveld contended that:

“The First and Second Applicants caused the soil level on the Site to be lowered (Excavation). The excavation was carried out without the consent or knowledge of the First Respondent. The excavated portion of the Site is the portion of the Site purportedly in breach of the height of buildings development standard. Accordingly, the excavation by the First and Second Applicants was an immediate and necessary relation to the alleged breach of the height of buildings development standard. In the premises, it is unconscionable and in bad faith for the Applicants to now seek the relief in prayers 1, 2 and 3 of the Summons. The relief ought to be withheld in the exercise of the Court’s discretion having regard to the equitable maxim of clean hands.”

56. The first and second applicants, Mr and Mrs El Khouri, dispute the facts alleged in the above paragraph. Question 2 is directed to that dispute.
57. Mr and Mrs El Khouri own the property at 115 Stuart Street, which lies directly to the north of 117 Stuart Street. Between November 2017 and early 2020, they carried out building works on 115 Stuart Street which involved the construction of two dwellings, one on the upper part of the lot and one on the lower part. Mr El Khouri was the director of the building company. He deposed that he was present on a full-time basis during construction works and saw the earth and civil works including any activities when access was obtained over 117 Stuart Street. There is no dividing fence between the properties over the lower part of the two blocks.
58. Mr Maiolo deposed that in around early 2017 he advised Mr El Khouri that Mr El Khouri could use the bottom part of his property to store building materials and for his tradesmen to use it to work around the construction site on 115 Stuart Street. Mr El Khouri said that this conversation occurred in August 2017. Nothing turns on this difference. Mr El Khouri deposed that demolition work commenced on 115 Stuart Street on 27 November 2017. The house to be demolished was situated on the upper half of the property. Mr El Khouri deposed that on or about 12 December 2017 he asked Mr Maiolo for access for excavator machines to pass through 117 Stuart Street around the bottom of a rock wall and to access another part of 117 Stuart Street for the stockpiling of dirt if and when necessary during works for the lower dwelling. These requests were agreed to. Machine access over the site at 117 Stuart Street commenced on 5 January 2018.^[23]
59. Mr Maiolo and his family left 117 Stuart Street for a family holiday and returned on 21 January 2018. Machine access over 117 Stuart Street commenced on 5 January and ceased on about 2 February 2018.
60. Mr Maiolo deposed that on 24 January 2018 he saw an excavator in his yard and watched while it worked in an area that in these proceedings has been designated as the “Hatched Area”, that is, the area where the applicants contend the building height limit is exceeded. He took a photo of the excavator on the land.^[24] He also took photos on 22 January, 27 February and 23 March 2018 that included photos of what he deposed is now known as the Hatched Area. The photographs were taken from an elevated position and do not capture what lies immediately below a rock wall and a Swiss cheese plant. The large yellow excavator shown in the photograph Annexure C to Mr Maiolo’s affidavit appears to be parked near a stand of trees at the bottom of the site not far from the Georges River and not in the vicinity of what is known as the Hatched Area.
61. Mr Maiolo deposed:

“24. On or shortly after 7 March 2020, I inspected the area I now know as the Hatched Area. I noticed that the outcroft at the Hatched Area had been excavated.

25. Before Peter’s excavation, the area I now know as the Hatched Area was level with the rock outcroft. I estimate that Peter excavated at a depth of 2.5m of earth in a 4m x 1.5m triangle shape at what I now know as the Hatched Area.”

62. The “outcroft” referred to by Mr Maiolo is the rock outcrop that appears in the photo which is Annexure D to his affidavit and appears in photographs annexed to Mr El Khouri’s affidavit.
63. The photos annexed to Mr Maiolo’s affidavit do not corroborate his evidence that the yellow excavator carried out excavation work on 24 January 2018 in the vicinity of the Hatched Area.
64. Mr El Khouri denied that any excavation work was carried out in the Hatched Area. He said that at all times throughout January 2018 he was present on site when the excavators were operating.^[25] I accept that evidence.
65. In his cross-examination Mr Maiolo said that when he referred to having noticed that the outcroft at the Hatched Area had been excavated, he was referring to the outcrop having been supported by a batter, and actual fall of earth, that covered the rock wall and which had been excavated.^[26] He said that the batter was formed by 15m3 of soil which he said was shown in photographs taken by Mr El Khouri on 14 December 2017^[27] which was shown to have been removed in a photograph taken on 5 January 2018.^[28]
66. This was before the excavation that Mr Maiolo deposed to having seen on 24 January 2018. His proposition that there had been such excavation of a batter between 14 December 2017 and 4 January 2018 was not put to Mr El Khouri in Mr El Khouri’s cross examination.
67. Most of the “batter area” referred to by Mr Maiolo in his cross-examination fell below the Hatched Area^[29] (Exhibit B). Contrary to Mr Maiolo’s evidence, I do not accept that the photographs annexed to Mr El Khouri’s affidavit show an excavation after 14 December in the Hatched Area. To the contrary, although the photographs annexed to the affidavits of Mr El Khouri and Mr Maiolo are taken from different angles and show different perspectives, the photograph shows no excavation over the Hatched Area between that date and 24 October 2018.^[30]
68. Mr Maiolo’s evidence in cross-examination to the contrary^[31] was unconvincing.
69. Mr Maiolo gave evidence in re-examination that ought to have been led in chief and which was allowed on the basis that I would allow cross-examination on the further evidence. He produced a further photograph taken some two or three months before the hearing. He said that the further photograph (Exhibit 8) showed that the “whole area” had been stripped and what had been covered had been removed so that the height was completely different from the height shown in Mr El Khouri’s photograph^[32] of 14 December 2017.^[33] A comparison with the photographs at CB 111 and 112 and Exhibit 8 does not enable me to draw any such conclusion.
70. The argument advanced by Mr Maiolo in his cross-examination and re-examination had not been advanced in his affidavit. Nor was it put to Mr El Khouri in his cross-examination, as it should have been if Mr Maiolo had given instructions to his legal representatives to the effect of his evidence in cross-examination and re-examination. However, it was not suggested to Mr Maiolo in cross-examination that his evidence was recent invention and I do not discount it on that basis. It suffices to say that I accept the evidence of Mr El Khouri that no excavation in the vicinity of the Hatched Area occurred.
71. For these reasons I answer question 2, no.

Conclusion

72. For these reasons I answer the questions remitted as follows:
    • (1) Q: For the purposes of cl 4.3(2) of the Kogarah LEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument?

A: Yes, but this did not appear from the plans submitted to the consent authority.

• (2) Q: If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent?

A: No.

• (3) Q: For the purposes of the notification of the DA, was a written notice forwarded to the Third Applicant within the meaning of the Georges River Council – Community Engagement Strategy 2018 – 2028 prior to 7 April 2022?

A: Unnecessary to answer.

• (4) Q: If the answer to (3) is no, having regard to the environmental impacts of the proposed development on the applicants was any denial of procedural fairness material?

A: Does not arise.

73. The costs of the determination of the above questions fall for determination by the Court of Appeal.

Amendments

06 February 2023 - Addition of counsel name for First Respondent

05 April 2023 - Typo corrected on coversheet and in para [9]: s 54(1) amended to s 51(4) of the Supreme Court Act 1970 (NSW).

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^[1] White Folder (“WF”) 348
^[2] WF 438
^[3] WF 261
^[4] Transcript (“T”) 4.42
^[5] T 11.42
^[6] T 12.1
^[7] T 78.30
^[8] T 78.50
^[9] T 78.15
^[10] Layman affidavit 5 July 2022, para 7, WF 577
^[11] T 14.40
^[12] T 68.11-17
^[13] T 32.45
^[14] T 33.14-23
^[15] T 56.28
^[16] T 57.16-31
^[17] T 35.32-36
^[18] T 65-66
^[19] T 65-66
^[20] T 67.13
^[21] T 45.3-10
^[22] T 44.44-46
^[23] Court Book (“CB”) 103
^[24] Annexure C to Maiolo affidavit of 28 October 2022 at CB 148
^[25] T 94-95
^[26] T 116
^[27] CB 111
^[28] CB 113
^[29] T 118
^[30] Photo at Annexure E to Maiolo affidavit.
^[31] T 123-124
^[32] CB 111
^[33] T 129