Datum Pty Ltd v Botany Bay City Council

Land and Environment Court (NSW)|2003-03-14|Before: Pearlman J

Introduction 1 These are two appeals by the applicant, Datum Pty Ltd, against decisions of Botany Bay City Council ("the council"). The first is an appeal against the refusal of a development application for the strata subdivision of a residential flat building containing six residential flats. The second appeal is against the council's failure to issue a building certificate for those premises. 2 For the reasons which follow, I have concluded that each appeal should be upheld, and that both development consent and a building certificate should be granted. 3 I record that I had the assistance of Commissioner Moore in the hearing of the appeals and that the Court had the benefit of a view of the site and its environs.

The site 4 The proposed development is located at 8 Templeman Crescent, Hillsdale ("the site") and is lot 22 DP 219427. It is generally rectangular in shape, with dimensions of the order of 15 metres in width and 28 metres in depth. The front boundary is curved and the overall site area is some 436 m2. The land at 6 Templeman Crescent, to the west of the site, is a children's playground owned and maintained by the council. The locality appears to have been subdivided and zoned for walk-up flats in the 1960s without prior use for detached housing - although there are some (but not many) detached houses in the surrounding streets. Development in the immediate vicinity comprises three storey walk-up flats, similar to those on the site. All buildings in Templeman Crescent are 3 storey residential flat buildings (except No 2 which is two storeys). 5 Presently erected on the site is a 3-storey brick building constructed pursuant to an approval dated 13 May 1964. The building contains six units, with 2 units on each level. The floor plan is identical on each level - resulting in there being three each of what were described as "Type A" units (Units 1, 3 and 5) and three of "Type B" (Units 2, 4 and 6), with one of each on each level of the building. 6 The units have internal floor areas of either 52m2 or 53m2. Each unit, in its original form, contained a combined kitchen/living area, two bedrooms, a bathroom and separate laundry. There is a single stairwell serving all three storeys. The units do not have balconies. The building has a red brick finish as do most of the other buildings in the vicinity. The rear yard is mostly concreted and is used for carparking. The front and side boundary areas are newly landscaped with an in-ground watering system installed. 7 On site parking is provided for five vehicles, with parking for four vehicles at the rear of the site (accessible by a driveway down the western boundary of the property) and a fifth parking space on the eastern front side boundary (accessible directly from the street).

Background 8 The applicant purchased the site in October 2001. The council had issued an Order in September 2001 on the previous owners requiring certain repair and up-dating works to be carried out. The Order required the building to be placed in a state of good repair and condition and also required that various fire safety works be carried out. Neither the applicant nor the previous owners appealed against the Order. 9 In the course of complying with the Order, the applicant also undertook a range of additional renovation works for which approval from the council was not given prior to them being undertaken.

The applications to the council 10 A development application for alterations to the building and strata subdivision into six lots was submitted to the council on 10 December 2001. The council refused the development application on 24 June 2002. The renovation works were commenced in late February 2002 and were substantially completed before the development application was determined. In order to resolve the status of the building works, an application for a building certificate was submitted to the council on 29 April 2002.

Evidence at the hearing 11 During the hearing, statements of evidence were tendered on behalf of the council by Mr M Neustein, town planning consultant and Mr P Shepherd, Director - Technical & Regulatory Services Division and on behalf of the applicant by its town planning consultant, Mr B Threlfo. Mr Shepherd was not required for cross-examination.

Botany Local Environmental Plan 1995 12 The land is in zone No 2(b) Residential "B" under the Botany Local Environmental Plan 1995 ("the LEP"). The LEP includes statements of broad objectives with respect to various classes of activity. The provision relevant to the site is contained in cl 5(2)(b) as follows: 5(2)(b) to encourage, where appropriate, the renovation and upgrading of existing dwellings, while ensuring that dwelling forms, including alterations and additions, are in sympathy with the amenity of surrounding residences. 13 The LEP also provides specific objectives for various zones. For the Residential "B" zone, a primary objective and a number of secondary objectives are set out. Those that are relevant to the present case are two of the secondary objectives as follows: (b) to improve the quality of the residential amenity by encouraging landscaping and good design in both new developments and renovations; (c) to encourage the revitalisation and improvement of older established residential areas by rehabilitation and suitable development

Development Control Plans 14 The 1999 Subdivision Development Control Plan ("the Subdivision DCP") provided for the Residential "B" zone. Clause 9.2 relevantly provides as follows: 9.2 Council may grant consent to the strata subdivision of a multi-unit residential building, subject to full compliance with the conditions of consent applicable to the construction of that building. 15 Clause 9.2 of the Subdivision DCP was amended on 22 November 2002 (effective from 26 November 2002). Mr Shepherd's witness statement, when read together with the report dated 17 October 2002 of Ms M Bishop, the council's Manager City Planning, sets out the history of the present (slightly different) form of cl 9.2 of the Subdivision DCP. It is clear from these documents that the applicable provisions are those in the 1999 version of cl 9.2 as they were the ones in force at the date of lodgement of the application for strata subdivision. 16 The council also adopted a Building Design and Construction Development Control Plan ("the Building DCP") on 25 September 2002. The Building DCP came into force on 8 October 2002. It deals with a number of topics under cl 6 - Building and Design Principles. Further subsidiary headings are provided. For each of these, objectives, minimum standards and performance criteria are set out. A number of these were raised in the proceedings and are discussed in detail below. However, the Building DCP has no formal application in this case for two reasons. First, it was not in effect as at the date of application to the council. Secondly, the Court accepts the submission by Mr Pickles, appearing for the applicant, that the consent sought (being strata subdivision) is not in the scope of activities within the Building DCP's purview.

The issues 17 In the appeal concerning the building certificate (No. 10616 of 2002), the council filed a formal statement of the issues it contended should lead to dismissal of the appeal as follows: 1. The building work was done without Development Consent (in breach of SEPP 10).

Building work undertaken does not create high quality residential development nor does it create good internal design.

Adverse precedent. 18 In the appeal concerning the application for strata subdivision (No. 0224 of 2002), the council filed a formal statement of the issues it contended should lead to dismissal of the appeal as follows: 1. The proposed development fails to comply with the secondary objectives of the Residential 2(b) zone contained in the Botany Local Environmental Plan 1995, in that it does not provide scope for high quality residential development and does not improve the quality of the residential amenity by encouraging landscaping and good design.

The development does not comply with the following clauses of Council's draft development control plan for building design and construction;-

a. 6.2 in that apartment layout is not efficient, does not have high standards of amenity nor does it satisfy internal storage area requirement.

b. 6.3 in that the apartments are less than the minimum area.

c. 6.5 in that it does not provide the acoustic privacy required.

The proposed development does not comply with the carparking requirements of Clause 3.1 of the Council's Offstreet Carparking Development Control Plan in that the development does not meet the minimum required number.

The proposed development will result in an overdevelopment of the site which will cause adverse impact on the surrounding residential amenity as well as internal residential amenity through lack of sufficient carparking on site and the small dwellings.

The proposed development may adversely impact on the local and surrounding environment particularly in relation to traffic.

The proposed development is contrary to the public interest in that:-

a. It will cause adverse impacts upon adjoining residential occupiers within the subject development.

c. The strata subdivision of the small units will inhibit the potential redevelopment of the site for further dwellings with improved amenity.

The building certificate application 19 The proper approach to take with cases such as this is to consider whether the Court should exercise the available discretion which enables a building certificate to be issued post facto to regularise any breach of planning law. The council opposed the grant of a building certificate on the basis that the resulting amenity of the building and standard of its internal design was unsatisfactory. In addition, the council also contended that to grant a building certificate in this case would constitute an adverse precedent for similar cases of construction without consent. 20 In the present case, there is no evidence put by the council that the works have not been appropriately undertaken. Mr Neustein and Mr B Threlfo agreed that these works have improved the amenity of the existing units (although Mr Neustein considers that much more could be achieved). The Court is satisfied that, had the applicants sought the relevant consent to approve the works, it would have been granted by this Court in the event that it was not given by the council. 21 With respect to the question of adverse precedent, insofar as it relates to the building certificate appeal, these works were done in the context of also undertaking extensive works in response to an Order of the council. It is unlikely such a coincidence of circumstances would recur and, even if they were to do so, they would be determined on their individual facts and circumstances. 22 As a consequence, although clearly undesirable that works such as those carried out are done without proper consent processes being followed, there is no sufficient reason in this case for the refusal of a building certificate on any of the grounds of lack of consent, standard of work undertaken or adverse precedent.

General issues of amenity 23 Matters of amenity and standard of renovation are relevant to issues (1) and (6(c)) in the strata subdivision appeal and issue (2) in the building certificate appeal. They are also partially encompassed in issue (4) relating to the strata subdivision appeal. They find their basis in the two secondary objectives of the LEP referred to in par 13 above. 24 A considerable portion of the evidence before the Court, both in the written statements and the oral evidence, was directed at the broad issue of whether the units, after renovation, provided an appropriate level of amenity to satisfy the standards of the relevant secondary objectives of the LEP and the provisions of the Building DCP. However, as the Building DCP was not in force at the time application for strata subdivision was made, it does not apply to the application before the Court. On the other hand, as each party's town planning expert assessed the renovated units against the Building DCP, it provides a useful reference document to assist the Court in considering whether or not improvement in residential amenity by "good design in … renovations" has been achieved to satisfy secondary objective (b) of the zone objectives in the LEP. 25 The written statements of evidence of Mr Neustein and Mr Threlfo both compared the renovated building to the objectives, minimum standards and performance criteria of the Building DCP that each considered relevant. Mr Neustein's comparison was somewhat more extensive than that of Mr Threlfo. In addition, each of them also gave oral evidence on these matters. Mr Threlfo conceded that some aspects of the renovation did constitute negatives (for example, the reduction in bedroom size in Type B units) but contended that, overall the standard of amenity was improved. Mr Neustein also contended that there were a number of negatives but conceded that improvements had been achieved (for example, by removal of the corridors and more effective utilisation of the space realised as a result). 26 There was, however, no agreement as to the extent of the overall improvement achieved by the renovations. Moreover, there was disagreement between the experts as to the degree with which some rearranged layout elements or other unaltered elements are satisfactory or might be further improved. As a general proposition, Mr Neustein considered that much more could be achieved by radical redesign and gave evidence of a possible redesign which would convert each of the units to a single bedroom unit. Such a single bedroom design would, in his view, address many of the shortcomings of both the original and renovated layouts of the apartments. On the other hand, Mr Threlfo considered that the renovations undertaken have optimised the amenity within the constraints of retaining the building as a block containing six apartments - each being of two bedrooms. 27 Against that general background, I turn to the secondary zone objectives. 28 The first of the relevant secondary objectives of the LEP requires that developments in the 2(b) zone should "improve the residential amenity by encouraging landscaping and good design in … renovations". The difference between the council and the applicant on the application of this objective is, in essence, whether it is an absolute or whether it should be applied having regard to the constraints of the existing form and usage of the building being renovated. There is at least some improvement in the internal amenity and a visual improvement to the exterior of the building with some potential for this to continue to improve if the landscaping is adequately maintained. In this context, the setting of the building is enhanced compared to its neighbourhood by virtue of the landscaping - particularly the large eucalypts - located in the adjacent council playground to the west. With respect to the interior design of the renovations, the Court is satisfied that, within the constrictions of retaining the units as having two bedrooms, the altered design of each of the unit types constitutes "good design in … renovations" and that, therefore, this objective is satisfied. 29 The second of the relevant secondary objectives of the LEP requires that developments in the 2(b) zone should "encourage the revitalisation and improvement of older established residential areas by rehabilitation and suitable development". In this regard, it is obvious that, prior to the applicant undertaking the works to meet the Order (together the renovation works), the building was in a significant state of dilapidation. 30 The effect of the council's evidence is that all matters arising from an application to strata subdivide could be resolved if there were to be a major shift in the nature of the utilisation of the building. Mr Neustein provided one alternative design for single bedroom apartments. Mr O'Connor, appearing for the council, submitted that several split-level maisonettes might be created as part of a redesign. In response, the applicant submitted that the building should not be required to meet contemporary standards given its approval over 35 years ago as two bedroom apartments. 31 The council's policy is to seek to retain the maximum opportunity for re-development in the precinct of Hillsdale within which the site is located. This was put on the basis that, in the medium to long term, such redevelopment would lead to amelioration of what are now accepted as been generally unsatisfactory developments in the precinct. The council put the proposition that the likelihood of more immediate redevelopment for this site would effectively be removed should ownership be fragmented by strata title conversion. 32 The only support for the council's redevelopment policy reflected in any of the council's current planning instruments is found in the secondary zone objective referred to in par 29 above. However, despite this statement of aspiration, it is also clear, as discussed below concerning floor space ratios and the lack of opportunities for site consolidation, that there is no realistic prospect of redevelopment of the site in the fashion considered desirable by the council whilst ever the current planning instruments apply in their present terms. 33 Evidence was given that the present FSR of the building on the site was of the order of 0.7:1. This contrasts with the FSR permitted by cl 12(1)(a) of the LEP which provides for an FSR for the site of 0.5:1. 34 The permitted redevelopment FSR compared to the present existing FSR clearly acts as a disincentive to redevelopment. When coupled with the absence of any other incentive for redevelopment in any of the council's planning instruments, it is realistic to assess that there is no present significant reason for or possibility of redevelopment of the site being contemplated if it were to remain in single ownership. 35 Although cl 12(2) of the LEP permits developments with an FSR of 1:1 on sites with an area greater than 2400m2, the present site is 436m2. A map of Hillsdale was tendered which showed all multi-unit properties where the whole building was held in a single ownership. Two things about it may be noted. First, in the immediate vicinity of the site, only five buildings in Templeman Crescent are in single ownership. The closest of these is opposite the site and none of them adjoins it. Given the pattern of ownership (including strata title ownership) of the adjoining developed allotments coupled with the council's ownership of the children's playground adjacent to the site, there is no realistic prospect of consolidation with any other site to fall within this bonus provision of the LEP. 36 Secondly, there is no major cluster of single ownership sites. The largest grouping is of four neighbouring properties with frontages to either Rhodes Street or Brittain Crescent. As a consequence, there is also no significant likelihood of extensive redevelopment of the type envisioned by the council taking place on consolidated sites throughout the precinct. 37 There is no doubt that the present and former designs would not be approved by the council or this Court if they were to be proposed as a greenfields development. However, the Court is satisfied that the applicant has given proper consideration to maximising what can be achieved within the present configuration of the building. 38 The works undertaken by the applicant have had the effect, undoubtedly, of revitalising this building and, at least to some extent, effecting some modest improvement to the neighbourhood. I am satisfied that there is sufficient compliance with this secondary objective of the LEP.

Specific issues of amenity - the Building DCP 39 The council raised three specific areas where it claims that the building is not in compliance with the Building DCP. As noted above, the Building DCP does not apply but it does provide a useful reference framework given the way the expert witnesses went about their comparative assessments. 40 The first of the specific issues was formulated as non-compliance with cl 6.2 of the Building DCP in that apartment layout is not efficient, does not have high standards of amenity nor does it satisfy internal storage area requirement. The scope of the limited agreement between Mr Neustein and Mr Threlfo on issues of amenity have already been discussed. There was also agreement from Mr Neustein that the changed layout to the apartments (for example the removal of the corridors and the reallocation of the space thus freed) effected some improvement in the design efficiency. It was also obvious from the view that consideration had been given to provision of storage (consistent with the size of the units). As a consequence, I consider that, within the context of the retention of the present two bedrooms, the units comply with this provision. 41 The second of the specific issues was formulated as non-compliance with cl 6.3 of the Building DCP "in that the apartments are less than the minimum area". The standard in the Building DCP reads "To ensure the adequacy of room sizes, apartment areas should be restricted to the following nett areas" with the area prescribed for a two bedroom apartment being 100m2. The performance criterion for this standard is descriptive rather than enumerative and reads "Scale drawings that indicate the furniture layout to demonstrate that the room sizes can be well furnished for their function". Although not meeting contemporary standards for new construction, it was obvious from the view that, although small in size, the units could be furnished appropriately and are liveable. Therefore, there is no basis for the Court to reject the application on this ground. 42 The third of the specific issues was formulated as non-compliance with cl 6.5 of the Building DCP "in that it does not provide the acoustic privacy required". The applicant's evidence is that there is one common wall between the units on each level and that this is the wall between bedroom 1 of the type A units and the living room of type B units. The construction pattern is that approved at the time of the 1964 consent and has not been altered by the renovations. This is in breach of the minimum standard required by the Building DCP that "bedrooms of one dwelling do not share walls with living rooms … of adjacent dwellings". However, the applicant provided evidence from an acoustic consultant that these walls satisfied the relevant BCA noise transmission standard. Although no tests were undertaken between levels of the building, the applicant's evidence is that the new timber flooring laid on the concrete slab floors will have increased the acoustic rating of these floors. The evidence on behalf of the council on this issue merely suggested that testing the acoustic performance of walls and floor slabs might be undertaken and rectification of any problems identified by that process. 43 The Court is faced with circumstances where there is, at worst, on the applicant's evidence on this issue, partial non-compliance with contemporary standards coupled with the ameliorative measures effected by the flooring improvements. On the other hand, the council's evidence does not suggest that this is regarded as such a fundamental defect as to warrant refusal. In light of the structures and layout meeting the standards current at the time of original approval together with the evidence given of the present position, I consider that these issues do not provide a basis to refuse the appeals.

Car parking and traffic 44 If the building is to be retained as six two bedroom units, the proposed number of parking spaces is accepted as being appropriate subject to matters contained in the proposed conditions. Similarly, it is obvious that the number of vehicles and the resulting traffic movements is unlikely to change significantly - if at all. There is, as observed during the view, strong local demand for on street parking but this is also unlikely to be impacted by continuation of the present configuration. The relevant council engineer indicated in his report that the on-site parking layout was satisfactory and did not raise any concerns suggesting that the number of spaces was inadequate. Parking and traffic issues do not provide any basis to refuse the strata subdivision appeal.

Conditions 45 As required by the Land and Environment Court Rules 1996, the council tendered draft conditions which it would wish to impose if the Court were to grant the appeals. The applicant agreed to a number of the proposed conditions but the remainder were in contest and I deal with them. 46 Proposed condition 7 reads: All vehicles shall enter and exit the premises in a forward direction.

The Court accepts that, with respect to the single car parking space in the north-eastern corner of the property, such a condition cannot be complied with and should not be imposed with respect to that parking space. With respect to the parking spaces at the rear of the property, imposition of this condition would require the provision of a turning area in the rear of the property. Although, perhaps, physically possible, such a turning area would also likely require abandonment of the parking space on the western boundary - thus reducing the number of car spaces available. This would be a less desirable outcome than the likelihood of cars exiting the property by reversing. No evidence was given that there had been any adverse incidents arising from the present vehicular ingress/egress arrangements. I decline therefore to impose this condition. 47 Proposed condition 8 reads: All driveways associated with the development shall be 90° to the property line. Constructed between property line and kerb and guttering.

The council advanced no reasons as to why this condition should be imposed and there was no evidence to justify its imposition. I decline therefore to impose this condition. 48 Proposed condition 11 would require the applicant to reconstruct a full-width domestic vehicular crossing at the location shown on the approved plans and reconstruct the kerb and guttering and footpath across the full site frontage, except opposite the vehicular entrance and exit points. As with the proposed driveway reconstruction, the council advanced no reasons as to why this condition should be imposed and there was no evidence to justify its imposition. I decline therefore to impose this condition. 49 Proposed condition 14 reads: The property's stormwater is to be drained to the existing system currently in use. A qualified plumber is to check the system and certify that the system, up to where it connects with a Council drainage structure, is clear of debris and fully operational. A Hydraulic Engineer is to certify that the existing system is appropriately sized so as to comply with Council's Standard Stormwater Drainage Design Brief.

The first paragraph of this proposed condition is unexceptional and should form part of the conditions of consent.

With respect to the second paragraph, the applicant submitted that, as a consequence of the fact that no changes to the pre-existing drainage system had been made, the present Stormwater Drainage Design Brief was not applicable. The council made no submission as to why this portion of the proposed condition should be included. In light of the lack of change to the pre-existing system, I declined therefore to impose this part of the proposed condition. 50 Proposed condition 15 reads: 15 The landscape plan, drawing No. 02/593/C1 dated 12.3.02 shall be amended, to include the following changes:

(a) The planting schedule shall be amended to correspond to the plants indicated on the planting plan. (refer red notations on the plan); and,

(b) Groundcover planting shall be provided under the Blueberry Ash, along the eastern boundary; and,

(c) In order to prevent the encroachment of motor vehicles into the landscaped areas a 150mm high concrete kerb shall be constructed between the landscaped area and the car parking area at the rear of the property; and,

(d) Reference to the automatic irrigation system included in the notes on the landscape plan shall be amended to delete the reference to Council. The landscape contractor is to liaise with an irrigation consultant and Sydney Water to provide an automatic irrigation system that complies with the Australian standard.

The applicant submitted that (a) had already been complied with and was, therefore redundant. If it has been complied with, I consider that there is no reason why it might not be made part of the conditions (and, if it has not been complied with, it is not unreasonable to require it).

The applicant submitted that (b) was unreasonable and unnecessary but possible of compliance. On the view, the parties pointed out the planted Blueberry Ash. Although no reasons have been advanced by the council for the inclusion of this condition, it does not seem an unreasonable requirement in the scope of improving the overall amenity of the site. I have therefore included this requirement in the conditions of approval.

With respect to (c), the applicant submitted that the 150mm high kerb would have no effect in protecting the plantings adjacent to the parking area. Whilst this might be the case due to the proximity of the plantings to the edge of the parking area, nonetheless such a kerb may afford some protection to the watering system. I consider that the provision of such kerb is not unreasonable under the circumstances.

With respect to (d), the first part of the condition is unexceptional and has been included. However, the irrigation system has been installed. No evidence was adduced as to any inadequacy of the system as installed nor as to the existence or otherwise of an applicable Australian Standard the observation of which might be required by condition. This aspect of the condition will, therefore, not be imposed. 51 Proposed condition 16 would have imposed a security bond on the applicant for the purpose of ensuring the maintenance of the landscaping. The applicant objected on the ground that such a bond did not fall within the scope of bonds permitted by s80A(6) of the Environmental Planning and Assessment Act 1979. These provisions of the Act empower the consent authority to require such a bond in limited circumstances and it is clear that the protection or maintenance of landscaping on private property is not amongst those permitted purposes. I decline therefore to impose this condition. 52 Proposed condition 17 reads: The applicant shall maintain the nature strip upon Council's footway. Such maintenance shall include, but not be limited to, watering, mowing, fertilising, and removal of weeds.

The attitude of the applicant to this condition was that it was an inappropriate condition in that it sought to impose a condition on the applicant rather than on the future body corporate of a strata subdivided building, It also submitted that, whilst likely that the adjoining unit owners would maintain the nature strip as ordinary community practice, it was not appropriate to make this a formal requirement. I agree, and decline to impose this condition. 53 Proposed condition 18 reads: Tree root barriers shall be installed where trees are planted in the carpark areas.

This condition will provide protection to the carpark surface from damage as the trees planted adjacent to it as part of the landscaping mature. I do not consider this to be inappropriate. 54 Proposed condition 19 reads: A continuous landscaped buffer strip shall be provided between the building and the eastern boundary, to provide privacy and screening for the building. A one (1) metre wide landscaped strip is to be installed along the eastern boundary of the site. This garden shall include suitable screen and shade trees as well as shrubs, accent plants and groundcovers.

The landscape plan shows that the mulched garden bed area is of variable width. It extends from the rear boundary to the southern end of the single carspace on the north eastern corner of the site - which carspace is shown as running to the boundary along its eastern edge thus rendering landscaping impossible at this point. The landscaping plan shows that implementation of this condition to the rear of the front car parking space is possible. Such a requirement does not seem unreasonable and, amended to reflect the location of the front car parking space, is not inappropriate. The amended condition will read as follows: A continuous landscaped buffer strip shall be provided between the building and the eastern boundary, to provide privacy and screening for the building. A one (1) metre wide landscaped strip is to be installed along the eastern boundary of the site from the rear of the car parking space at the northeastern corner of the property to its south-eastern corner. This garden shall include suitable screen and shade trees as well as shrubs, accent plants and groundcovers. 55 Proposed condition 20 reads: All building work must be carried out in accordance with the provisions of the Building Code of Australia.

This condition is mandatory as it is prescribed pursuant to s 80A(11) of the Environmental Planning and Assessment Act 1979. 56 Proposed condition 21 related to the payments required to give effect to the bond and ancillary related charges arising from proposed condition 16. It is redundant since that proposed condition is not to be imposed.

Orders 57 In accordance with the foregoing, the Court's formal orders are as follows:

The building certificate appeal - Matter No (1)0224 of 2002,: (1) The appeal is upheld. (2) Pursuant to s 149F(3) of the Environmental Planning and Assessment Act 1979, the Council is directed to issue a building certificate in respect of the whole of the building at 8 Templeman Crescent, Hillsdale.

The strata subdivision appeal - Matter No 10616 of 2002: (1) The appeal is upheld. (2) Development application No 02/296 for the strata subdivision of lot 22 DP 219427 at 8 Templeman Crescent, Hillsdale is determined by the grant of consent subject to conditions as specified in Annexure 'A'.

In relation to both appeals: (1) The exhibits, except Exhibits 2, 3 and 4, may be returned. (2) I make no order as to costs.

Property: 8 Templeman Crescent, Hillsdale [Lot 22 DP 219427]

Annexure 'A' 1 The development shall be carried out in accordance with plans received by Council on 10 December 2001, prepared by Datum Commercial Interiors, numbered Sheets 1-3, Surveyors Reference 47809; DWG AMD/2001/02DC1:01-05, as amended by Strata Plan Form 2 Sheet No 3 of 3 received by Council on 24 April 2002; parking plan dated 11 March 2002, except where amended by the conditions of the Consent. 2 A Certificate under Section 73 of the Water Board (Corporatisation) Act 1994 shall be obtained and submitted to Council Note: Immediate application should be made to Sydney Water for this Certificate to avoid problems in servicing the development. 3 Submission of a subdivision certificate application accompanied by a linen plan with six (6) copies and appropriate fees.

4 Full compliance with all conditions of Development Consent No 02/296 prior to release of the linen plans.

5 Prior to the occupation of the building a final fire safety certificate must be prepared and issued to Council. This certificate must state that:-

each essential fire safety measures specified in the current fire safety schedule for the building to which the certificate relates:

(a) has been assessed by a properly qualified person;

(b) was found when assessed to be capable of performing to a standard not less than that required by the current fire safety schedule for the building for which the certificate is issued; and,

(c) the date of assessment which must be within the period of 3 months prior to the date on which the final fire safety certificate is issued.

Note: (i) The choice of person to carry out the assessment is up to the owner of the building;

(ii) The person who carries out the assessment: (a) must inspect and verify the performance of each fire safety measure being assessed; and,

(b) must test the operation of each new item of equipment installed in the building premises that is included in the current fire safety schedule for the building; (iii) As soon as is practicable after a final fire safety certificate is issued the owner of the building to which it relates: must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be given to the Commissioner of the New South Wales Fire Brigades, and,

(d) must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building. 6 Prior to use and occupation of the building an Occupation Certificate must be obtained under Section 109C(1)(c) and 109H of the Environmental Planning and Assessment Act 1979.

7 Parking space No 5 as indicated on parking plan dated 11 March 2002 shall be a minimum width of 2.8m.

8 A convex mirror is to be installed adjacent to the western boundary of the premises, aligned so as vehicles in the parking area have sufficient sight distance down the driveway for in bound vehicles. The mirror is to be installed prior to the issue of the Occupation Certificate.

9 The following fire safety measures (both current and proposed) must be implemented in the building premises as a whole and the each of the fire safety measures must satisfy the standard of performance listed in the schedule to this condition which is deemed to be the current fire safety schedule for the building.

10 Five (5) off-street car parking spaces shall be provided in accordance with Council's Off Street Car Parking Development Control Plan. Such spaces are to be adequately paved to provide a dust-free surface of concrete or bitumen, or interlocking pavers, are to be line marked, and are to be freely available at all times during business hours for all users of the premises.

11 The property's stormwater is to be drained to the existing system currently in use. A qualified plumber is to check the system and certify that the system, up to where it connects with a Council drainage structure, is clear of debris and fully operational.

12 The landscape plan, drawing No 02/593/C1 dated 12 March 2002 shall be amended, to include the following changes: (a) The planting schedule shall be amended to correspond to the plants indicated on the planting plan (refer red notations on the plan); and,

(b) Groundcover planting shall be provided under the Blueberry Ash, along the eastern boundary; and,

(d) Reference to the automatic irrigation system included in the notes on the landscape plan shall be amended to delete the reference to Council. 13 Tree root barriers shall be installed where trees are planted in the carpark areas.

14 A continuous landscaped buffer strip shall be provided between the building and the eastern boundary, to provide privacy and screening for the building. A one (1) metre wide landscaped strip is to be installed along the eastern boundary of the site from the rear of the car parking space at the northeastern corner of the property to its south-eastern corner. This garden shall include suitable screen and shade trees as well as shrubs, accent plants and groundcovers.

15 All building work must be carried out in accordance with the provisions of the Building Code of Australia.

16 The applicant being informed that this approval shall be regarded as being otherwise in accordance with the information and particulars set out and described in the Development Application registered in Council's records as Development Application No 02/296 dated as 10 December 2001 and that any alteration, variation, or extension to the use, for which approval has been given would require further Approval from Council.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62 APPLICANT Datum Pty Ltd PARTIES : RESPONDENT Botany Bay City Council FILE NUMBER(S) : (1)0224 of 2002 and 10616 of 2002 CORAM: Pearlman J Building Application - Development Application :- KEY ISSUES: Building Application:- building certificate - work done without consent Development Application:- strata subdivision - zone objectives - amenity - future character Botany Local Environmental Plan 1995 LEGISLATION CITED: Building Design and Construction Development Control Plan 2002 Environmental Planning and Assessment Act 1979 Subdivision Development Control Plan 1999 CASES CITED: DATES OF HEARING: 09/12/2002; 10/12/2002 DATE OF JUDGMENT: 03/14/2003

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