September 14, 2011

Are you concerned about excavation ?

The issue of large excavations is a concern for many developments in our area. It is a vexed topic.
‘Underground development’ provides additional amenity to maximise the floor space ratio (FSR) but is usually associated with a high-bulk structure.

A WBA member recently raised the issue with Councillors and received a detailed response from Councillor Chris Howe. An extract from Cr Howe’s message follows as a footnote to the newsletter.

We are considering making a comprehensive statement on excavation issues at Council. If you would like to be part of the working groups on this matter, or can provide a technical perspective, please get in touch 
Extract of a recent message from Cr Chris Howe : “I share your concerns on the propensity of major excavations in our residential areas to accommodate media rooms, gyms, spa rooms, substantial storage areas, additional  garaging and the like.

These excavations result in substantial consumption of energy from excavation plant and transport, substantial additional embodied energy in the construction of the associated basement areas,  alterations of sub-soil water flows, substantial alteration to topography potentially requiring future remediation, significant additional maintenance ( and energy consumption associated ) in residential streets resulting from increased heavy vehicles, together with loss of amenity to residents during excavation. The former is against all principles of Ecologically Sustainable Development, while the latter is a direct loss of amenity to residents, albeit temporary  as you say, not so temporary where there are a number of developments in one area occurring over a period of time).

Unfortunately Council’s objectives and controls on excavation have been ineffectual in defending Appeals in the Land and Environment Court where Council has sought to refuse or restrict excavation, it being my understanding the Council has lost almost every Appeal with respect to additional proposed floorspace/areas below ground level since I have been a councillor, with many tens of thousands of ratepayers dollars spent in unsuccessfully depending Appeals.

In my opinion this is largely because Council’s objectives/controls on excavation traditionally relate to the footprint of the building, or to floorspace controls, these controls limiting density, bulk and scale, the Land & Environment Court decisions making it clear it will not reject additional floor space when this is located below ground and does not contribute to additional bulk or scale of the proposed development.

Therefore while Council has every right to refuse, and or place restrictions on large excavations, in light of the consistent decisions against Council on excavation, Councillors also have to be mindful of their obligation to “protect the public purse” and to “……avoid wasting time and money for council, neighbours and applicants…..” in potentially expensive litigation which has a high probability of being unsuccessful.

It was for these reasons that Councillors Edelman, Petrie, Wynne, Young and myself put a Notice of Motion (No ) to Council on the  1st November 2010 for Council Planning Staff to investigate and provide a report on “…the effectiveness of current controls within the WLEP1995, and WRDCP2003 limiting excessive site excavation, together with recommendations on amendments to the WRDCP2003 and other planning instruments to prevent excessive site excavation…..”, full transcript of the NoM can be found at the following link

Consequent to that NoM, the Strategic Planning Working Party  consisting of councillors and senior staff) have already considered a number of potential amendments developed by our planning and urban design staff for inclusion in Council’s new Standard LEP and amendments to Council’s Development Control Plans.  However this is a complex issue which impacts on, and requires integration with many other planning requirements, so while no amendments are yet recommended, Councillors do understand the need to resolve this matter as a matter of priority, and subsequently the matter is again on the Agenda of the Strategic Working Party Meeting for this coming Wed 10th August.”