Filadelfia Projects Pty Ltd v Ku-ring-gai Council

CASES CITED: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408

APPLICANT: Mr P C Tomasetti SC instructed by Mr D G Briggs (solicitor) SOLICITORS: D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr J E Robson SC instructed by T March (solicitor) SOLICITORS: HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10001 of 2010 Filadelfia Projects Pty Ltd v Kuring-gai Council

JUDGMENT Background 1 This appeal is against council's refusal of a development application for the strata subdivision of a recently completed complex comprising 3 residential flat buildings located at Nos. 3 - 13 Bundarra Ave South and No. 10 Woonona Ave, Wahroonga. 2 The parties agreed that this matter be heard concurrently with a s 96(8) application (Appeal No 10961 of 2009), which dealt with modifications to regularise aspects of the building. The parties reached a s 34(3)(A) agreement that consent be granted for the modifications subject to the conditions in Annexure 'A'. Court Orders were made accordingly. 3 The strata plan now seeks to incorporate the approved modifications, to enable completion of the project. Whilst council accepts that the strata plan is satisfactory for conditional consent, it requires the imposition of a deferred commencement condition that the consent will not operate until all the works listed in the s 96 modification have been completed to council's satisfaction. Such works to be completed within 6 months. 4 The applicant opposes this deferred commencement condition on the basis that the applicant's compliance with the other conditions of consent and the ensuing certification, should be satisfactory to enable consent being granted to the strata subdivision. 5 I understand from the evidence and submissions for council that its concerns arise because the modifications result from the non-compliance with the conditions of consent imposed on the original consent granted by the Court. The non-compliances are due in part to unauthorised variations allowed to the Construction Certificate by the PCA. These non - compliances were considered unsatisfactory by council and have involved considerable resources rectifying the situation. 6 Consequently council wants to avoid any further unsatisfactory outcomes by imposing the deferred commencement condition to restrict issue of the Subdivision Certificate until all the works have been satisfactorily completed, so as to avoid any further waste of resources. Findings 7 The submissions for the applicant are that the deferred commencement is unreasonable in the circumstances and that the basic principle that there is an assumption that the law will be complied with should be followed. Also, that the planning system allows for independent consultants (PCA) to grant final approvals to the strata plan and occupation certificate. The conduct of these certifiers is strictly regulated, which requires them to act in an independent way so as to ensure that all the conditions of consent are properly complied with before the final certification is granted. 8 Against this, the council submissions are that due regard should be given to the unsatisfactory circumstances resulting in the existing non - compliances and therefore a cautious approach adopted whereby the strata consent does not become operative until the outstanding works are completed. 9 In support of this submission, reference is made to the matter of Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99, where the Chief Judge stated: "[35] Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."

10 Insofar as there has been unsatisfactory action in the past, I nevertheless consider it appropriate set that aside and follow the approach in Jonah. This is also on the basis that all of the specific items required to be completed will be done and properly certified before the subdivision certificate and ultimately the occupation certificate is issued. The various conditions agreed to by the parties require this. 11 Some of the modifications specifically relate to the buildings. Other items include civil works involving road and drainage works on the public roads where there is a particular public interest concern. However I note that draft condition 8 provides for all works in the public road to completed in full, inspected and approved by council, prior to the issue of the Subdivision Certificate. I consider this imposes a reasonable level of control of this aspect of the works. 12 I also note that the applicant has agreed to provide council with a schedule of the completed works prior to the issue of the Subdivision Certificate. The preparation of such document would seem to be consistent with good practice whereby the applicant provides a schedule of completion to the certifier. Under the circumstances, I consider it reasonable that such schedule also be provided to the council prior to the issue of the Subdivision Certificate or Occupation Certificate. 13 For these reasons then, I accept the applicant's submissions that it is unreasonable and unnecessary to impose the deferred commencement condition in the circumstances. Therefore conditional consent is granted.

Court orders 14 The Court orders: 1. The appeal is upheld. 2. Development consent is granted for the strata subdivision of the 66 residential apartments within three buildings over basement car parking at property known as Nos. 3 - 13 Bundarra Avenue South and No. 10 Woonona Avenue at Wahroonga as shown on drawings in exhibit C, comprised by draft strata plans (Sheets numbered Sheet 1 of 8 to Sheet 8 of 8) prepared by Scott Deveridge (Registered Surveyor) Reference No. 19187-20709-SP, Revision A dated 14.03.2010, all subject to conditions in Annexure 'A'. 3. The exhibits are returned to the parties except Exhibits A, B and C.

Annexure 'A' Conditions of Consent FILADELFIA PROJECTS PTY LIMITED V KU-RING-GAI COUNCIL

The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council's stamp, except where amended by other conditions of this consent:

Plan No. Drawn by Dated Sheet No. 1 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Location Plan Revision A Sheet No. 2 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Basement 1 - Revision A Sheet No. 3 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Basement 2 - Revision A Sheet No. 4 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Basement 3 - Revision A Sheet No. 5 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Ground Floor Level - Revision A Sheet No. 6 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Level 1 - Revision A Sheet No. 7 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Level 2 - Revision A Sheet No. 8 of 8 Scott Deveridge, Registered Surveyor Ref: 19187-20709-SP Project Surveyors - Macquarie Park 14/3/2010 Level 3 & 4 - Revision A

Reason: To ensure that the development is in accordance with the determination.

In the event of any inconsistency between conditions of this development consent and the drawings/ documents referred to above, the conditions of this development consent prevail.

Reason: To ensure that the development is in accordance with the determination.

Conditions to be satisfied prior to the issue of a Strata Certificate

3. Submission of certification of as-constructed development (strata)

Prior to the issue of the Strata Certificate, the Principal Certifying Authority shall be satisfied that:

(A) the works the subject of the Section 96(8) modification of the development consent made by the Land and Environment Court in proceedings 10961 of 2009 have been carried out; and

(B) A survey report and surveyor's certificate have been prepared which confirm that (a) The floors, external walls and ceilings depicted in the proposed strata plan for the building generally correspond to those of the building as constructed; (b) The floors, external walls and ceilings of the building and including the detention system as constructed generally correspond to those depicted in the building plans that accompanied the construction certificate for the building; (c) Any facilities required by the development consent for the building (such as parking spaces, terraces, balconies and courtyards) have been provided in accordance with the development consent; and (d) Easements are to be provided to all on-site stormwater detention access grates and rainwater retention tanks located within private courtyards. The inspection/access grate shall be readily accessible from the common area and shall be depicted in the proposed strata plan.

Reason: To ensure that the as-constructed development is consistent with the approval.

Prior issue of the Strata Certificate, the applicant shall create a positive covenant and restriction on the use of land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on site. The terms of the instruments are to be generally in accordance with the Council's "terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). The location of the on-site detention facilities for all dwellings is to be noted on the final plan of subdivision.

Reason: To ensure maintenance of on-site stormwater detention facilities.

Prior to issue of the Strata Certificate, the applicant shall create a positive covenant and restriction on the use of land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site retention and re-use facilities. The terms of the instruments are to be generally in accordance with the Council's "terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). The location of the on-site detention facilities for all dwellings is to be noted on the final plan of subdivision.

Reason: To ensure maintenance of site retention and re-use facilities.

Prior to issue of the Strata Certificate, an easement for waste collection is to be created under Section 88B of the Conveyancing Act 1919. This is to permit legal access for Council, Council's contractors and their vehicles over the subject property for the purpose of collecting waste from the property. The terms of the easement are to be generally in accordance with Council's draft terms for an easement for waste collection and shall be to the satisfaction of Council's Development Engineer.

Reason: To permit legal access for Council, Council's contractors and their vehicles over the subject site for waste collection.

Prior to issue of the Strata Certificate, the Principal Certifying Authority is to be satisfied that following works have been completed:

? construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council ? removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these sections to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council ? reinstatement works match surrounding adjacent infrastructure with respect to marrying of levels and materials ? any sections of damaged grass verge are to be replaced with a non-friable turf to match existing ? any damage to public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) has been repaired to the satisfaction of Council and at no cost to Council

Reason: To protect public infrastructure and the streetscape.

Prior issue of the Strata Certificate all road, footpath and/or drainage works in the public road must be completed in full, inspected and approved by Council. The applicant's designing engineer is to provide certification upon completion that the works were constructed in accordance with the Council approved drawings. This certification shall be provided prior to release of the linen plan/issue of the Strata Certificate. The completed works are to be approved by Council's Development Engineer prior to release of the linen plan/issue of the Strata Certificate.

Reason: To ensure completion of all road, footpath and/or drainage works in the public road.

Prior to the issue of the Strata Certificate, the applicant must submit an original instrument under Section 88B of the Conveyancing Act with the plan of subdivision, plus six (6) copies to Council. Ku-ring-gai Council must be named as the authority whose consent is required to release, vary or modify the burdens.

Reason: To create all required easements, rights-of-carriageway, positive covenants, restrictions-on-use or other burdens/benefits as may be required.

10. General easement/R.O.W. provision and certification

Prior to issue of the Strata Certificate, a registered surveyor is to provide details to Council that all physical structures are fully contained within the proposed allotments or will be fully covered by the proposed burdens upon registration of the final plan of subdivision. Alternatively, where the surveyor is of the opinion that creation of burdens and benefits is not required, then proof to this effect must be submitted to the Principal Certifying Authority.

Reason: To ensure that all physical structures are fully contained within the proposed allotments or will be fully covered by the proposed burdens upon registration of the final plan of subdivision.

For issue of the Strata Certificate, the applicant shall submit an original plan of subdivision plus 6 copies suitable for endorsement by the consent authority. The following details must be submitted with the plan of subdivision and its copies, where Council is the consent authority: a) the endorsement fee current a the time of lodgement b) the 88B instrument plus 6 copies c) all surveyors and/or consulting engineers' certification(s) required under this subdivision consent. d) Proof of payment of S94 contributions. All parking spaces and all areas of common property, including visitor car parking spaces and on-site detention facilities, which are to be located within common property, must be included on the final plans of strata subdivision. Where Council is the certifying authority, officers will check the consent conditions on the subdivision. Failure to submit the required information will delay endorsement of the linen plan and may require payment of re-checking fees.

Plans (and copies) of subdivision must not be folded. Council will not accept bonds in lieu of completing subdivision works. If the certifying authority is not Council, then a copy of all of the above must be provided to Council.

12. Certification of as-constructed driveway/carpark - RFB

Prior to issue of the Strata Certificate, the Principal Certifying Authority is to be satisfied that:

? the as-constructed car park complies with the relevant Construction Certificate and as per the Plan titled 'Agreed Parking Space Details Changes, dated 19 March 2010, prepared by Brown Consulting (NSW) Pty Ltd)".

? the completed vehicle access and accommodation arrangements comply with Australian Standard 2890.1 - 2004 "Off-Street car parking" in terms of minimum parking space dimensions

? finished driveway gradients and transitions shall generally comply with Australian Standard 2890.1 - 2004

? no doors, gates, grilles or other structures have been provided in the access driveways to the basement carpark, which would prevent unrestricted access for internal garbage collection from the basement garbage storage and collection area

• Australian Standard 2890.1 - "Off-street car parking",
  • 2.5 metres height clearance for waste collection trucks (refer DCP 40) are met from the public street into and within the applicable areas of the basement carpark.

Note: Evidence from a suitably qualified and experienced traffic/civil engineer indicating compliance with the above is to be provided to and approved by the Principal Certifying Authority prior to the issue of the Strata Certificate.

Reason: To ensure that vehicular access and accommodation areas are compliant with the consent.

Prior to the issue of the Strata Certificate, the applicant shall submit to the Council a schedule of the works undertaken pursuant to the orders of the Land and Environment Court in proceedings no. 10961 of 2009.

The Strata Certificate must not be issued until all conditions of development consent have been satisfied and an Occupation Certificate has been issued by the Principal Certifying Authority.

Reason: To ensure that the development is completed prior to transfer of responsibility for the site and development to another person.

R Hussey Commissioner of the Court

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.