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[2009] NSWLEC 1393
appellant. The appeal was upheld. Conditions 1, 4, 14, 73 and 74 of development consent DA/207/2008 were amended in accordance with Annexure A, and Exhibit B was retained.
The Court allowed a modification to the consent for converting historic hospital buildings into apartments. The dispute was whether low hedges around the Flowers Wards would harm the historically open landscape. The Commissioner considered the heritage documents, the planning controls, historical images and the needs associated with residential reuse. The controls discouraged hedges but did not ban them. Given their low height and ordered design, and the context of the adaptive reuse, the hedges were considered compatible with retaining an adequate sense of openness and the buildings' heritage significance. The appeal was upheld and the consent conditions were amended.
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2,087 words · generated 01/10/2026
The case concerned a proposed change to an existing development consent for the Prince Henry site at Little Bay, a place with a long history as a hospital and quarantine site. The judgment records that the site began as a temporary sanitary camp in 1881, became the Coast Hospital, and was renamed Prince Henry Hospital in 1934. Its buildings and associated natural, archaeological and landscape features documented more than 120 years of use. The site was placed on the State Heritage Register in 2003 ([1]–[3]).
No linked legislation citations have been extracted yet.
Randwick City Council had granted consent on 21 October 2008 for adaptive reuse of Flowers Wards 2, 4, 5 and 6 and Hill Theatre 2 as 18 dwellings, with parking, landscaping and strata subdivision ([4]–[5]). Little Bay South Pty Limited later sought modification under s 96(1A) of the Environmental Planning and Assessment Act 1979. The requested changes involved consent conditions governing the approved plans, landscape works and the Heritage Council's general terms of approval ([6]–[8]).
The main dispute was over proposed landscaping in the lawn areas around the Flowers Wards. The applicant proposed Coast Rosemary hedges, one metre wide and 0.5 metres high, with climbers on trellises, trees and planting beds. The applicant said the hedges would mark the boundary between public areas and spaces for common use by residents ([7]–[11]). During the appeal, amended plans removed most hedge sections running perpendicular to the buildings, while retaining returns at the buildings' ends ([10]).
The Heritage Council opposed the hedges, considering them inconsistent with the landscape provisions of the Flowers Wards conservation policy and the site Conservation Management Plan. It objected that delineating private open spaces could harm the historic spatial setting of the buildings ([13]). The Council's Planning Committee approved only the trellises and climbers that the Heritage Council did not oppose ([14]–[15]). The applicant appealed that partial outcome.
Commissioner Bly heard the appeal over several dates, received planning and heritage expert evidence, and considered historic photographs and a 1914 architectural perspective of the hospital. The Court ultimately upheld the appeal and modified conditions 1, 4, 14, 73 and 74 of the development consent ([58]–[67], [81], Orders 1–3).
The Commissioner did not treat the heritage documents as an all-or-nothing ban on change. The DCP, Conservation Policy and Management Plan were all relevant. The Commissioner said that, where they were inconsistent, the more recent DCP provisions were to be preferred ([68]). The DCP sought to maintain an open, green and uncluttered setting, but it also acknowledged residential development and adaptive reuse, including residents' needs for privacy, security and private open space ([69]–[72]).
The Conservation Policy called for a simple landscape reflecting the 1930s, including open lawns and formal plantings. It did not recommend extra hedges or garden beds in the main lawn areas beside the wards ([37]–[39], [69]–[70]). The Management Plan similarly called for open, uncluttered spaces around the buildings, while recognising that limited new planting could occur ([41]–[47], [70]). The Commissioner treated the recommendation against hedges as a significant planning consideration, but not as a prohibition. The question was whether the purpose behind the recommendation, including preserving simplicity and openness, would be significantly affected ([78]).
The historical material was important. The 1914 perspective suggested that the original design intent was more elaborate than bare lawns. The Commissioner accepted that it depicted a potential formal landscape scheme, perhaps involving lawns bordered by low hedges or garden beds ([73]–[75]). But the perspective was not the only relevant evidence. Photographs showed that the landscape actually developed over time, including open lawn, garden beds and regularly spaced trees ([76]). The Commissioner therefore considered both the unimplemented design and the landscape that was built and experienced.
The physical scale and arrangement of the proposal mattered. The hedges were to be only 0.5 metres high. The Commissioner accepted that this height would not dominate the landscape, unreasonably impair its openness or obstruct views along corridors between the buildings. The proposed layout was considered ordered and uncluttered ([78]). The trees, whether existing or previously approved, would continue to contribute to the setting as they matured ([76]–[77]).
The intended use also mattered. The hospital wards had been community or civic buildings, but the approved conversion would make them private residences. The consent already allowed changes such as car parking beneath buildings, driveways, new pedestrian access and the division of long verandas into separate private verandas ([79]). In that context, the Commissioner considered that some measure of privacy and security for residents was reasonable and that the hedges were a practical response to those needs.
The conclusion was a balance, not a finding that any hedge or any landscaping would be acceptable. The Commissioner decided that this proposal, in this adaptive-reuse setting, would retain enough open space and would not unreasonably detract from the heritage significance of the buildings as a group. The possible reversibility of the hedges was also given some weight ([80]–[81]).
The judgment does not announce a general change to planning or heritage law. It applies the stated planning controls to a particular modification application and site. It does, however, explain how the Commissioner approached the specific relationship between the instruments before the Court.
Before the decision, the consent allowed the residential adaptive reuse, but the disputed landscape modification had not been approved in full. The Council had approved the trellises and associated climbers while declining the other requested landscape changes ([9], [14]–[15]). The applicable material included the Randwick Local Environmental Plan 1998, the Prince Henry Site DCP 2004, the Conservation Management Plan, the Flowers Wards Specific Elements Conservation Policy and the Prince Henry Site Master Plan ([16]–[23], [36]–[47]).
The Commissioner identified the DCP, Conservation Policy and Management Plan as relevant. The judgment states that the older Conservation Policy and Management Plan remained relevant and important, but that the more recent DCP would be preferred to the extent of inconsistency ([68]). It also records that the relevant LEP requirements were satisfied after consideration of the controls, reports and expert evidence ([17]–[23]).
After the decision, the consent was modified to accommodate the approved landscaping, subject to the plan amendments and conditions set out in Annexure A. Condition 1 referred to the specified landscape drawings and deleted perpendicular hedge elements, except for two-metre returns from street boundaries on each side of driveways. Conditions 4 and 73 were deleted, and condition 74 was amended to address the approved landscape documentation ([Annexure A, conditions 1, 4, 73 and 74]).
The broader point is limited: this judgment demonstrates a contextual assessment of heritage impact under these particular instruments. It does not establish that a heritage-control recommendation can generally be disregarded, or that residential amenity will always justify landscaping that alters a heritage setting. The outcome depended on the proposed hedge height, layout, historical evidence and adaptive-reuse context.
At [68], the Commissioner says that the DCP, Conservation Policy and Management Plan were all relevant, but the more recent DCP would take priority if there were inconsistency. In plain English, the older heritage documents remained part of the assessment, but they were not automatically controlling where the newer DCP pointed in a different direction.
At [73], the Commissioner says historic records should inform decisions about landscaping around the Flowers Wards. The records included photographs and the 1914 architectural perspective, even though the written controls did not specifically mention that perspective. In plain English, the Court considered relevant historical evidence beyond the documents that expressly set out the planning rules.
At [74]–[76], the Commissioner rejected the view that only the landscape actually built, or only the original design intention, should matter. The perspective and the later landscape history both contributed to understanding heritage significance. In plain English, the Court looked at what had been proposed as well as what was actually constructed and how the site changed over time.
At [78], the Commissioner explains why the height of the proposed hedges mattered. They were low enough not to dominate or unreasonably undermine openness, and they would not block views between the buildings. In plain English, the proposal's effect was assessed by considering its actual scale and placement, rather than treating every hedge as having the same impact.
At [79]–[80], the Commissioner considers the change from hospital use to private residential use. The approved reuse would already change the buildings and their setting, and some privacy and security for residents was considered reasonable. The Commissioner accepted that hedges would create separate spaces, but concluded that the adaptive-reuse context and remaining sense of openness made that outcome acceptable.
At [81], the Commissioner states the ultimate balance: the proposal sufficiently retained a sense of open space and would not unreasonably detract from the heritage significance of the group of buildings. In plain English, the Court approved the modification because it considered the heritage impact acceptable in the context of the whole proposal.
This decision is most directly relevant to proposals involving the adaptive reuse of heritage buildings where new residential use creates practical questions about privacy, security and the division of public, communal and private space. It is especially relevant where landscape changes are proposed within a heritage curtilage, and where the planning documents both protect openness and contemplate new uses ([69]–[72], [79]).
The reasoning may be useful where a control recommends against a particular landscape feature, but does not expressly prohibit it. The judgment shows the Commissioner examining the purpose of the recommendation and asking whether the proposed feature would significantly impair the objectives behind it ([78]). The answer depended on the low height, ordered form, and limited impact of the particular hedges.
It may also be relevant where evidence about a heritage place includes both an original design proposal and evidence of the place as built and altered over time. The Court considered both the architectural perspective and later photographs rather than treating either as conclusive ([73]–[77]).
The decision should not be read as automatically supporting hedges, boundary treatments or private gardens at other heritage sites. The Commissioner emphasised this setting's particular controls, history, physical arrangement, approved trees, proposed hedge height, and residential conversion. A proposal involving higher or more visually dominant planting, a different heritage setting, or different applicable controls would require its own assessment.
The judgment supplied here does not refer to later decisions or describe how later courts treated it. It cites no other case law in its reasoning, so no applied, followed, distinguished or otherwise described case precedent can be identified from this text.
The decision is a judgment of Commissioner Bly in the Land and Environment Court in a development-modification appeal. The material provided supports describing its reasoning and outcome, but not making claims about its subsequent status, citation history or treatment by later courts. Those matters cannot be established from the judgment reproduced here.
The judgment resolves the application before it, but the text does not determine how the same balance would apply to different hedge heights, species, planting densities or locations. It also does not define a general threshold for when landscaping would cease to preserve a sufficient sense of openness. The conclusion that these 0.5-metre hedges would not dominate was specific to the evidence before the Commissioner ([78]–[81]).
The Court accepted that the 1914 perspective was relevant even though the depicted scheme was not fully implemented. The judgment does not establish how much weight an unimplemented design should receive in other heritage assessments, particularly where the built landscape differs substantially from the proposed design ([59]–[76]).
The decision also does not state a general rule for resolving every conflict between a DCP and heritage-management documents. It says the more recent DCP provisions would be preferred to the extent of inconsistency in this case, while also describing the older documents as relevant and important ([68]). How that approach applies where instruments differ in status, wording or subject matter is not addressed in the judgment.
Finally, the judgment considered reversibility as a factor, but did not make it a necessary condition for approval. It gives no general test for how reversibility should be assessed or weighed in other proposals ([81]). The Court's conclusion was that the particular modification, viewed with the site history, controls, expert evidence and adaptive reuse, was acceptable.
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The applicant is to engage the services of a suitably qualified environmental consultant (or similar) to respond to enquiries and complaints made by the community, the general public or Council in relation to Noise, Contamination, remediation, excavation and construction site management matters.
A specific contact number is to be made available for such enquiries and complaints (including an after hours emergency contact number). A complaints register is to be maintained to record all such enquiries, complaints and actions taken in response to these enquiries and complaints. This register shall be made available to council officers upon a reasonable request.
The use and operation of the plant and equipment within the building shall not give rise to an environmental health or public nuisance and there are to be no emissions or discharges from the premises, which will give rise to a public nuisance or result in an offence under the Protection of the Environment Operations Act 1997 and Regulations.
The following conditions are applied to ensure that the development satisfies the provisions of the Environmental Planning and Assessment Act 1979 and Regulations and to provide for reasonable levels of safety and amenity:
The requirements and provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000, must be fully complied with at all times.
Failure to comply with these legislative requirements is an offence and may result in the commencement of legal proceedings, issuing of on-the-spot penalty infringements or service of a notice and order by Council.
All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA), in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 and the existing buildings are required to be upgraded to comply with all relevant provisions of the BCA for Class 2 and 7a buildings.
Prior to the commencement of any building or fire safety works, a construction certificate must be obtained from the Council or an accredited certifier, in accordance with the provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000.
A copy of the construction certificate, the approved plans and development consent conditions must be kept on the site at all times and be made available to the Council officers and all building contractors for assessment
Prior to the commencement of any building or fire safety works, the person having the benefit of the development consent must:- i) appoint a Principal Certifying Authority for the building work, and
ii) appoint a principal contractor for the building work, or in relation to residential building work, obtain an owner-builder permit in accordance with the requirements of the Home Building Act 1989, and notify the Principal Certifying Authority and Council accordingly in writing, and
iii) unless the person having the benefit of the consent is the principal contractor (i.e. owner-builder ), notify the principal contractor of the required critical stage inspections and other inspections to be carried out, as specified by the Principal Certifying Authority , and
iv) give at least two days notice to the Council, in writing, of the person's intention to commence building works.
In relation to residential building work, the principal contractor must be the holder of a contractor licence, in accordance with the provisions of the Home Building Act 1989.
The building works must be inspected by the Principal Certifying Authority (or another certifying authority if the Principal Certifying Authority agrees), in accordance with sections 109 E (3) of the Environmental Planning & Assessment Act 1979 and clause 162A of the Environmental Planning & Assessment Regulation 2000, to monitor compliance with the relevant standards of construction, Council's development consent and the construction certificate.
The Principal Certifying Authority must specify the relevant stages of construction to be inspected in accordance with section 81A (2) (b1) (ii) of the Environmental Planning & Assessment Regulation 2000 and a satisfactory inspection must be carried out, to the satisfaction of the Principal Certifying Authority, prior to proceeding to the subsequent stages of construction or finalisation of the works (as applicable).
Documentary evidence of the building inspections carried out and details of compliance with Council's consent is to be maintained by the Principal Certifying Authority. Details of critical stage inspections carried out and copies of certification relied upon must also be forwarded to Council with the occupation certificate.
The principal contractor or owner-builder (as applicable) must ensure that the required critical stage and other inspections, as specified in the Principal Certifying Authority's "Notice of Critical Stage Inspections", are carried out to the satisfaction of the Principal Certifying Authority and at least 48 hours notice (excluding weekends and public holidays) is to be given to the Principal Certifying Authority, to carry out the required inspection, before carrying out any further works.
A sign must be erected and maintained in a prominent position on the site for the duration of the works, which contains the following details: o name, address, contractor licence number and telephone number of the principal contractor, including a telephone number at which the person may be contacted outside working hours, or owner-builder permit details (as applicable) o name, address and telephone number of the Principal Certifying Authority, o a statement stating that "unauthorised entry to the work site is prohibited".
An Occupation Certificate must be obtained from the Principal Certifying Authority prior to any occupation of the building work encompassed in this development consent (including alterations and additions to existing buildings), in accordance with the relevant provisions of the Environmental Planning & Assessment Act 1979.
An Occupation Certificate must not be issued for the development if the development is inconsistent with the development consent. The requirements of the Environmental Planning & Assessment Act 1979 and conditions of development consent must be satisfied prior to the issuing of an occupation certificate.
Prior to the issuing of an interim or final occupation certificate, a statement is required to be obtained from the Principal Certifying Authority, which confirms that the development is not inconsistent with the development consent and the relevant conditions of development consent have been satisfied.
Details of critical stage inspections carried out by the principal certifying authority together with any other certification relied upon and must also be provided to Council with the occupation certificate.
A Fire Safety Certificate must be submitted to Council prior to the issuing of an Occupation Certificate, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.
A single and complete Fire Safety Certificate must be provided which includes details of all of the fire safety measures contained in the building and as detailed in the fire safety schedule attached to the Construction Certificate.
Prior to issuing any Occupation Certificate the Principal Certifying Authority must be satisfied that all of the relevant fire safety measures have been included and are sufficiently detailed within the Fire safety Certificate.
A copy of the fire safety certificate must be displayed in the building near the entrance and a copy must be forwarded to the NSW Fire Brigades.
The required Long Service Levy payment, under the Building and Construction Industry Long Service Payments Act 1986, is to be forwarded to the Long Service Levy Corporation or the Council, prior to the issuing of a Construction Certificate, in accordance with Section 109F of the Environmental Planning & Assessment Act 1979.
At the time of this development consent, Long Service Levy payment is applicable on building work having a value of $25,000 or more, at the rate of 0.35% of the cost of the works.
All building, plumbing and drainage work must be carried out in accordance with the requirements of the Sydney Water Corporation.
The approved Construction Certificate plans must be submitted to a Sydney Water Quick Check agent or Customer Centre prior to commencing any building or excavation works, to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if any further requirements need to be met.
If suitable, the plans will be appropriately stamped. For Quick Check agent details please refer to Sydney Water's web site at www.sydneywater.com.au and go to the Building, Developing and Plumbing, then Quick Check or Building and Renovating or telephone 13 20 92.
The principal certifying authority must ensure that a Quick Check Agent/Sydney Water has appropriately stamped the plans before commencing any works.
A Certificate prepared by a professional engineer shall be submitted to the certifying authority (and the Council, if the Council is not the certifying authority) prior to issuing an occupation certificate or strata subdivision certificate, which certifies that the structural adequacy of the building, including balustrades to external balconies/verandahs and stairways.
Demolition work and the removal, storage, handling and disposal of building materials must be carried out in accordance with the following requirements (as applicable): o Australian Standard 2601 (2001) - Demolition of Structures o Occupational Health and Safety Act 2000 o Occupational Health and Safety (Hazardous Substances) Regulation 2001 o Occupational Health and Safety (Asbestos Removal Work) Regulation 2001 o Randwick City Council Asbestos Policy (adopted 13 September 2005) o WorkCover NSW Codes of Practice and Guidelines o The Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Waste) Regulation 1996.
In accordance with Council's Asbestos Policy, the following requirements are to be satisfied if any materials containing asbestos are present in the building:
a) Compliance with Randwick City Council's Asbestos Policy (adopted 13 September 2005).
A copy of Council's Asbestos Policy is available on Council's web site at www.randwick.nsw.gov.au in the Building & Development section or a copy can be obtained from Council's Customer Service Centre.
b) A Demolition Work Plan must be developed and implemented in accordance wi th Australian Standard AS2601-2001, Demolition of Structures.
c) A WorkCover licensed demolition or asbestos removal contractor must undertake removal of more than 10m2 of bonded asbestos (or as otherwise specified by WorkCover or relevant legislation). Removal of friable asbestos material must only be undertaken by contractor that holds a current friable asbestos removal licence.
d) Asbestos waste must be stored, transported and disposed of in compliance with the Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Waste) Regulation 1996.
e) Asbestos waste must be disposed of at an approved waste disposal depot (refer to the DEC or Waste Service NSW for details of sites). Copies of all receipts detailing method and location of disposal must be maintained on site and be provided to Council officers upon request, as evidence of correct disposal.
f) On demolition sites involving the removal of asbestos, a professionally manufactured sign must be clearly displayed in a prominent visible position at the front of the site, containing the words 'DANGER ASBESTOS REMOVAL IN PROGRESS" and include details of the licensed contractor. The sign shall measure not less than 400mm x 300mm and the sign is to be installed prior to demolition work commencing and is to remain in place until such time as all asbestos has been safely removed from the site.
g) A certificate or Statement, prepared by a suitably qualified person (i.e. an occupational hygienist, licensed asbestos removal contractor, building consultant, architect or experienced licensed building contractor), must be provided to Council upon completion of the works (prior to an Occupation Certificate being issued), which confirms that the relevant requirements contained in the Asbestos Survey and conditions of consent, in relation to the safe removal and disposal of asbestos, have been satisfied.
All excavations and backfilling associated with the erection or demolition of a building must be executed safely in accordance with appropriate professional standards and excavations are to be properly guarded and supported to prevent them from being dangerous to life, property or buildings.
Retaining walls, shoring or piling must be provided to support land which is excavated in association with the erection or demolition of a building, to prevent the movement of soil and to support the adjacent land and buildings, if the soil conditions require it. Adequate provisions are also to be made for drainage.
Retaining walls, shoring, or piling must be designed and installed in accordance with appropriate professional standards and the relevant requirements of the Building Code of Australia and Australian Standards. Details of proposed retaining walls, shoring or piling are to be submitted to and approved by the Principal Certifying Authority for the development prior to commencing such excavations or works.
The adjoining land and buildings located upon the adjoining land must be adequately supported at all times.
If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of any building located on an adjoining allotment of land, the person causing the excavation must: o preserve and protect the building /s on the adjoining land from damage; and o effectively support the excavation and building; and o at least seven (7) days before excavating below the level of the base of the footings of a building on an adjoining allotment of land (including a public road or public place), give notice of the intention and particulars of the works to the owner of the adjoining land.
This consent and condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is proposed to be carried out upon any adjoining or supported land, the principal contractor or owner-builder must obtain: a) the consent of the owners of such adjoining or supported land to trespass or encroach, or b) an access order under the Access to Neighbouring Land Act 2000, or c) an easement under section 88K of the Conveyancing Act 1919, or d) an easement under section 40 of the Land & Environment Court Act 1979, as appropriate.
Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).
Except with the written approval of Council's Manager of Health, Building & Regulatory Services, all building, demolition and associated site works (including site deliveries) must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive and (except as detailed below) between 8.00am to 5.00pm on Saturdays.
All building, demolition and associated site works are strictly prohibited on Sundays, Public Holidays and also on Saturdays adjacent to a Public Holiday.
In addition, the use of any rock excavation machinery or any mechanical pile drivers or the like is restricted to the hours of 8.00am to 5.00pm (maximum) on Monday to Friday only, to minimise the noise levels during construction and loss of amenity to nearby residents.
Noise and vibration emissions during the construction of the building and associated site works must not result in damage to nearby premises or result in an unreasonable loss of amenity to nearby residents and the relevant provisions of the Protection of the Environment Operations Act 1997 must be satisfied at all times.
Noise and vibration from any rock excavation machinery and pile drivers (or the like) must be minimised by using appropriate plant and equipment and silencers and a construction noise and vibration minimisation strategy, prepared by a suitably qualified consultant is to be implemented during the works, to the satisfaction of the Principal Certifying Authority.
Public safety and convenience must be maintained at all times during demolition, excavation and construction works.
a) The roadway, footpath and nature strip must be maintained in a good, safe condition and free from any obstructions, materials, soils or debris at all times. Any damage caused to the road, footway or nature strip must be repaired immediately, to the satisfaction of Council.
b) A Road Opening Permit must be obtained from the Council and other relevant Authorities prior to excavating or opening-up the road or footway for services or the like.
c) Building materials, sand, soil, waste materials or construction equipment must not be placed upon the footpath, roadway or nature strip at any time and the footpath, nature strip and road must be maintained in a clean condition and free from any obstructions, soil and debris at all times.
d) Bulk bins/waste containers must not be located upon the footpath, roadway or nature strip at any time without the prior written approval of the Council. Applications to place a waste container in a public place can be made to Council's Health, Building & Regulatory Services department.
e) During construction stages, sediment laden stormwater run-off shall be controlled using the sediment control measures outlined in the manual for Managing Urban Stormwater - Soils and Construction, published by the NSW Department of Housing. Sediment and erosion control measures must be implemented prior to the commencement of any site works and be maintained throughout construction.
f) Public access to demolition/building works, materials and equipment on the site is to be restricted and a temporary safety fence is to be provided to protect the public, located to the perimeter of the site (unless the site is separated from the adjoining land by an existing structurally adequate fence, having a minimum height of 1.5 metres). Temporary fences are to have a minimum height of 1.8 metres and be constructed of cyclone wire fencing, with geotextile fabric attached to the inside of the fence to provide dust control, or other material approved by Council.
g) Temporary fences or hoardings or the like are to be structurally adequate, safe and be constructed in a professional manner and the use of poor quality materials or steel reinforcement mesh as fencing is not permissible.
h) The public safety provisions and temporary fences or hoardings must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
i) If it is proposed to locate any hoardings, site fencing or amenities upon any part of the footpath, nature strip or any public place, the written consent from Council's Building Services section must be obtained beforehand and detailed plans are to be submitted to Council for consideration, together with payment of the weekly charge in accordance with Council's adopted fees and charges.
j) Stockpiles of soil, sand, aggregate or other materials must not be located on any footpath, roadway, nature strip, drainage line or any public place and the stockpiles must be protected with adequate sediment control measures.
k) Building operations such as brick cutting, washing tools or equipment and mixing mortar are not permitted on public footpaths, roadways, nature strips, in any public place or any location which may lead to the discharge of materials into the stormwater drainage system.
l) A local approval application must be submitted to and be approved by Council's Building Services section prior to commencing any of the following activities upon any part of the footpath, road, nature strip or in any public place:-
Install or erect any site fencing, hoardings or site structures Operate a crane or hoist goods or materials over a footpath or road Placement of a waste skip or any other container or article.
m) All new building works (including the proposed alterations/additions) must satisfy the relevant performance or deemed-to-satisfy provisions of the Building Code of Australia.
n) All of the fire safety upgrading works and new building work must be detailed in the Construction Certificate for the development.
The fire safety upgrading works must be carried out prior to issuing of an Occupation Certificate for the development and written confirmation must be provided to Council which confirms that all of the upgrading works have been carried out in accordance with the conditions of consent.
The following conditions are applied to provide adequate provisions for access, transport and infrastructure:
The applicant must meet the full cost for Council or a Council approved contractor to repair/replace any damaged sections of Council's footpath, kerb & gutter, nature strip etc which are due to building works being carried out at the above site. This includes the removal of cement slurry from Council's footpath and roadway.
Prior to the issuing of a Construction Certificate turning manoeuvre diagrams are to be submitted to and approved by the Certifying Authority showing compliance with AS/NZS 2890.1:2004 - B85 Car Template for those spaces marked as P1, P2 & Ps for OT Apt 01 & 02 Parking (Below Flowers Ward 5) on submitted plan Drwg No AR Da 2 No 500 Rev 1 dated March 31, 2008 by BatesSmart.
The following conditions are applied to provide adequate consideration for service authority assets:
The applicant must meet the full cost for telecommunication companies, gas providers, Energy Australia and Sydney Water to adjust/repair/relocate their services as required. The applicant must make the necessary arrangements with the service authority.
A Road / Asset Opening Permit must be obtained from Council prior to carrying out any public utility service works within or upon a road, footpath, nature strip or in any public place, in accordance with section 138 of the Roads Act 1993 and all of the conditions and requirements contained in the Road / Asset Opening Permit must be complied with.
The owner/builder must ensure that all works within or upon the road reserve, footpath, nature strip or other public place are completed to the satisfaction of Council, prior to the issuing of a final occupation certificate for the development.
For further information, please contact Council's Road / Asset Opening Officer on 9399 0691 or 9399 0999.
The following conditions are applied to provide adequate provisions for drainage and associated infrastructure:
Should a pump system be required to drain any portion of the site the system must be designed with a minimum of two pumps being installed, connected in parallel (with each pump capable of discharging at the permissible discharge rate) and connected to a control board so that each pump will operate alternatively. The pump wet well shall be sized for the 1 in 100 year, 2 hour storm assuming both pumps are not working.
The pump system must also be designed and installed strictly in accordance with "Section 8.4 PUMP SYSTEMS" as stipulated in Randwick City Council's Private Stormwater Code.
As the above site may encounter groundwater/seepage water within the depth of the basement excavation, the basement carparks or similar structures are to be suitably tanked and waterproofed. A Structural Engineer\Geotechnical Engineer shall certify the tanking & waterproofing has been carried out to an acceptable standard, to the satisfaction of the certifying authority. A copy of the certification is to be forwarded to Council.
a) Any subsoil drainage (from planter boxes etc) is to be disposed of within the site and is not to be discharged to Council's kerb & gutter and/or underground drainage system.
b) Adequate provision is to be made for the ground water to drain around the basement carpark (to ensure that the basement will not dam or slow the movement of the ground water through the development site).
Any seepage water must be drained directly into an absorption pit within the site. Seepage water must not be drained from the site.
The following conditions are applied to provide adequate provisions for waste management:
The garbage room areas will have to be designed so as to be able to contain a total of 18 x 240 litre bins (9 garbage bins & 9 recycle bins) whilst providing satisfactory access to these bins. Details showing compliance with this requirement are to be shown on the plans submitted to the certifying authority for the construction certificate.
Prior to the credited certifier issuing an occupation certificate for the proposed development the applicant is to contact Council's Manager of Waste in regards to meeting Council's requirements for waste services to the development.
The following conditions are applied to satisfy the provisions of Council's environmental plans, policies and codes for subdivision works:
The applicant shall provide Council with a survey plan of the property prior to endorsement of the subdivision plans.
Note: Strata Plans may have to be amended depending whether turning paths for CS 51 & 52 (Below Flowers Ward 5) are compliant with AS/NZS 2890.1:2004 - B85 Car Template
A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.
Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the website then refer to "Water Servicing Coordinator" under Developing Your Land" or telephone 13 20 92 for assistance.
Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the plan of subdivision.
All the conditions of development consent DA 187/2006 & DA 207/2008 must be satisfied and their compliance verified by the Principal Certifying Authority prior to endorsement of the subdivision plans. This includes restoration of all public roads and reserves and creation of suitable rights of carriageway, easements for access, services and internal stormwater lines, as required.
The following conditions are applied to provide adequate provisions for landscaping and to maintain reasonable levels of environmental amenity:
a. All detailed architectural, building, demolition, engineering (structural, stormwater & drainage, services), and landscape documentation submitted for the construction certificate application shall show the retention of this 'heritage tree', with the position of its trunk and full diameter of canopy clearly shown on all drawings.
b. All detailed documentation submitted for the construction certificate application shall show no alteration in the existing soil levels or the location of any services, detention tanks, stormwater infiltration systems, pipes, cutting or battering of the existing soil profile within a radius of 5 metres from the outside edge of its trunk, with all plans to be designed accordingly to reflect this requirement.
c. Only excavations specifically associated with the installation of approved landscaping (including fencing or footpaths) are permitted to be performed within the zone specified in point 'b' above, and are to undertaken by hand, with any roots encountered to be cut cleanly by hand and the affected area backfilled with clean site soil as soon as practically possible.
d. This tree is to be physically protected by the installation of 1.8 metre high steel mesh/chainwire fencing, which shall be located along the edge of the existing Flowers Ward building, along the back of the pedestrian footpaths to its west and south, as well as a distance of 5 metres to its north, in order to completely enclose this tree for the duration of the proposed works.
e. This fencing shall be installed prior to the commencement of demolition and construction works and shall remain in place until all works are completed, to which signage containing the following words shall be clearly displayed and permanently attached: "TREE PROTECTION ZONE, DO NOT ENTER".
f. Within this zone there is to be no storage of materials or machinery or site office/sheds, nor is cement to be mixed or chemicals spilt/disposed of in the area and no stockpiling of soil or rubble.
…………………………………………… Kerry Kyriacou Manager Development Assessment
If you are dissatisfied with this decision, Section 97 of the Environmental Planning and Assessment Act 1979 gives you the right to appeal to the Land and Environment Court within 12 months after the date on which you receive this notice.
Section 82A of the Environmental Planning and Assessment Act 1979 provides that the applicant may request the Council to Review the determination. The request must be made in writing (or on the review application form) within twelve (12) months after the 21 October 2008, as specified in this notice of determination, together with payment of the appropriate fee.
Please note that the development and all building work must be carried out fully in accordance with the development consent and conditions of consent.
It is an offence to carry out any unauthorised development or building work or to carry out any development or building work that is not in accordance with Council's development consent.
An offence under Environmental Planning and Assessment Act 1979 and Regulations is subject to a penalty up to $1,100,000 and $110,000 respectively. Alternatively, Council may issue a $600 on-the-spot penalty infringement notice for each offence.
Council may also serve a notice and an order to require the demolition/removal of unauthorised building work or to require full compliance with Council's development consent.
Prior to commencement of any variations from the approved plans and conditions of approval, an amended development application must be submitted to and approved by Council. Also, a (new or amended) Construction Certificate must be obtained from the Council or an Accredited Certifier.
Failure to obtain the required prior written development consent from council for any variations to the consent (and failure to obtain a new/amended construction certificate) is an offence, which may result in the above penalties or infringements.
Legal requirements prior to commencing any building or subdivision works:
Prior to commencing any building, subdivision or associated works (including any shop or office 'fit-out' work), the following provisions of the Environmental Planning and Assessment Act 1979 (the 'Act') and the Environmental Planning & Assessment Regulation 2000 (the 'Regulation') are to be complied with:
(i) A Construction Certificate is to be obtained in accordance with Section 81A (2) (a) of the Act. (ii) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A of the Act and clause 103 of the Regulation. (iii) Council is to be notified at least two (2) days of the intention to commence building works, in accordance with Section 81A of the Act and clause 104 of the Regulation.
Construction Certificate and Principal Certifying Authority
The applicant may apply to the Council or an Accredited Certifier to issue a Construction Certificate and to be the Principal Certifying Authority to monitor compliance with the approval and to issue the occupation certificate.
Council's Building Certification Services Business Unit can provide these services and further information, including a copy of the service agreement and details of certification and inspection fees can be obtained by telephoning Council's Building Certification Services Business Unit on 9399 0944.
Applications for a Construction Certificate are to be made in the standard form and in relation to an application made to Council's Building Certification Services, submission requirements include:
a completed Construction Certificate application form and payment of the appropriate fee. 4 copies of detailed architectural building plans and building specifications. 4 copies of structural engineering plans, detailing; all reinforced concrete floor slabs, footings, beams, columns and other structures; retaining walls; piers; underpinning; shoring systems; structural steelwork and framing details (as applicabl e). 4 copies of other technical details (i.e. details of mechanical ventilation systems, stormwater drainage, timber framing and roof trusses, termite protection, sediment control, boundary/party wall construction, masonry construction, acoustic and sound transmission, glazing, wet areas, smoke alarm systems and other fire safety provisions), where applicable. full details of compliance with the provisions of the Building Code of Australia, including details of the standards of construction that are to be complied with (i.e. Australian Standards). a list of existing and proposed fire safety measures (ie. fire doors, hose reels, fire hydrants, fire extinguishers, sprinkler systems, fire and smoke detection systems, smoke hazard management systems, exit signs and emergency lighting etc), except in relation to dwellings and associated structures. any compliance certificates relied upon. details of payment of the Building Industry Long Service Levy, in relation to building work which costs $25,000 or more details of compliance with the Home Building Act Insurance Provisions, in relation to residential building work. details of existing and proposed swimming pool fencing and barriers showing compliance with the Swimming Pools Act 1992 and AS1926 and details of acoustic enclosures for pool equipment. Building Code of Australia - General The Construction Certificate plans and associated specifications must comply with the relevant provisions of the Building Code of Australia (BCA) and the building work must be carried out in accordance with development consent and Construction Certificate. Details of compliance with the relevant provisions of the Building Code of Australia and conditions of development consent are to be provided in the plans, specifications and documentation for the Construction Certificate. Inspection of building works
The Principal Certifying Authority is required to specify the stages of construction which are to be inspected (including relevant 'critical stage' inspections), to ensure that the development complies with the relevant requirements of the development consent, Building Code of Australia and Australian Standards.
Critical stage inspections may include the following stages of construction (as specified by the appointed principal certifying authority):-
Footings, after placement of steel reinforcement and before pouring concrete. Reinforced concrete floor slabs, columns and beams, after placement of steel reinforcement and before pouring concrete. Timber or metal floor, wall and roof framing (including columns and beams), before installing floor, wall or roof cladding. Waterproofing of 'wet areas', after installation, before tiling or covering over. Fire resisting construction (e.g. party / separating walls, fire resisting coverings / plasterboard). Sound transmission work including separating walls or ceilings. Immediately after the building (or alterations and additions to a building) have been completed and before an Occupation Certificate is issued.
Reference should be made to clause 162A of the Environmental Planning & Assessment Regulation 2000 for details relating to the critical stage inspections.
An occupation certificate must be obtained from the principal certifying authority, prior to occupation of the new building work or part of a building (including alterations and additions) or, a change of building use, as required by sections 109M and 109N of the Environmental Planning & Assessment Act 1979.
Failure to obtain the required occupation certificate is an offence and is subject to a maximum penalty of up to $110,000 or the issue of a penalty infringement notice.
Under the provisions of Part 9 of the Environmental Planning and Assessment Regulation 2000 (except in relation to class 1a dwellings and class 10 non-habitable buildings or structures):
A 'Fire S afety Certificate' is required to be submitted to the Council and the New South Wales Fire Brigades prior to occupation of the building and a fire safety statement is to be provided on an annual basis thereafter, in relation to all of the essential fire safety measures within the building premises.
All of the Fire Safety measures within the premises must be included in a single and complete Fire Safety Certificate, which must be the same measures as those contained in the relevant 'Fire Safety Schedule' for the development. Any variations or amendments to the Fire Safety Schedule must be approved by the Principal Certifying Authority and written details must be provided to Council accordingly.
Following the issue of a Fire Safety Certificate, a Fire Safety Statement must be submitted to Council on an annual basis, which certifies that all of the essential fire safety measures are present and operational in accordance with the relevant standards of performance.
A copy of the current Fire Safety Schedule and Fire Safety Certificate/Statement must also be displayed in a conspicuous position within the building at all times.
Failure to submit a Fire Safety Statement by the due date annually is an offence which may result in the issuing of a penalty infringement notice of up to $2000.
Sydney Water Requirements All building, plumbing and drainage work must be carried out in accordance with the requirements of the Sydney Water Corporation.
The approved Construction Certificate plans must be submitted to a Sydney Water Quick Check agent or Customer Centre prior to commencing any building or excavation works, to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if any further requirements need to be met.
If suitable, the plans will be appropriately stamped. For Quick Check agent details please refer to Sydney Water's web site at www.sydneywater.com.au and go to the Building, Developing and Plumbing, then Quick Check or Building and Renovating or telephone 13 20 92. The principal certifying authority is required to ensure that a Quick Check Agent/Sydney Water has appropriately stamped the plans before commencing works.
The applicant, owner and builder is advised to ensure that the relevant requirements of WorkCover New South Wales are complied with, in relation to occupational health and safety, including the handling of hazardous materials (i.e. materials containing asbestos). Further information can be obtained from the WorkCover New South Wales 400 Kent Street, Sydney, NSW, 2000 or telephone 9370 5000 or 13 10 50.
The applicant/owner is advised that this approval does not guarantee compliance with the provisions of the Disability Discrimination Act 1992 and the applicant should therefore consider their liability under the Act. In this regard, the applicant is advised that compliance with the requirements of the Building Code of Australia and Australian Standard 1428.1 - Design for Access and Mobility does not necessarily satisfy the objectives of the Disability Discrimination Act 1992.
The applicant/owner is requested to give consideration to providing access and facilities for people with disabilities in accordance with Australian Standard 1428 Parts 1, 2, 3 and 4 - Design for Access and Mobility, which may be necessary to satisfy the objectives of the Disability Discrimination Act 1992.
Any approval for fences on side boundaries common to other private properties is independent of any consent or agreement which may be required of any adjoining owner under the provisions of the Dividing Fences Act and if applicable, you are advised to consult with the owners of the adjoining premises in this regard. Access to adjoining land, encroachments and work affecting other premises This consent does not authorise any trespass, encroachment or carrying out of any works upon any adjoining land or building whether private or public. Where any access, underpinning, shoring or any other works are proposed to be carried out upon any adjoining land (including work affecting party walls, common roof construction or any other building works on or adjacent to the site boundaries), the owner/builder must obtain: a) the consent of the owners of the adjoining land to access, carry out works or encroach upon their land, or otherwise affect an easement, right-of-way or other restriction on the certificate of title, or b) an access order under the Access to Neighbouring Land Act 2000, or c) an easement under section 88K of the Conveyancing Act 1919, or d) an easement under section 40 of the Land & Environment Court Act 1979 as appropriate. Local Government Act requirements
A separate Local Approval application is required to be submitted to and approved by Council if it is proposed to place any articles, materials or waste containers in a public place and to hoist or use a crane over a footway, in accordance with Section 68 of the Local Government Act 1993.
Should you require further information on the determination of this development application, please contact David Ongkili on 9399 0793 between 9.00am to 12 noon Monday to Friday or by appointment.
T A Bly Commissioner of the Court ljr
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.
Little Bay South Pty Limited
Randwick City Council
CITATION : Little Bay South Pty Limited v Randwick City Council [2009] NSWLEC 1393
The appeal was upheld. Conditions 1, 4, 14, 73 and 74 of development consent DA/207/2008 were amended in accordance with Annexure A, and Exhibit B was retained.