Mackenzie v Warringah Council

Land and Environment Court (NSW)|2002-08-08|Before: Pain J

INTRODUCTION

This is an appeal against the deemed refusal, and then later refusal, of Development Application No. 2001/993DA by Warringah Council (the Council) to demolish four existing dwellings, erect a residential housing development and subdivide the site into five lots, at 42 - 48 Burchmore Road, Manly Vale (the subject site).

I record that a view of the subject site, and some adjoining properties, was undertaken on the morning of the second day of the hearing in the company of representatives of both parties. I also record my appreciation for the advice and assistance of Commissioner Brown in these proceedings. For reasons I have set out in this judgment, I have concluded that the appeal should be upheld and development consent granted subject to the conditions in Annexure A.

The subject site falls steeply from the road to the rear, with level differences of approximately 11 metres along the north boundary and approximately 8 metres along the south boundary. There is a 12 metre cross fall diagonally north-west to south-east across the site. The subject site is physically divided into an upper street front area and lower rear area by a significant change in levels. The lower half of the subject site is somewhat overgrown and contains a number of trees. There are four dwelling houses on the subject site (one on each of the current lots) near the Burchmore Road frontage. These are generally one storey at the road and two storeys at the rear, with hipped pitched roofs.

Burchmore Road runs in a crescent-like shape between Kenneth Road and Clark Road and contains mostly one and two storey single dwelling development. There are three storey residential flat buildings at nos. 32, 38 and 40 Burchmore Road. Further residential flat buildings adjoin the subject site at the rear with a frontage to Fairway Close. A dual occupancy development is under construction at 36 Burchmore Road.

THE PROPOSAL 6. The proposal before the Court involves: · the demolition of the four existing dwellings on the subject site; · the erection of 4 x 3 bedroom houses (houses 1 to 4) on the higher portion of the subject site fronting Burchmore Road with access from that street; · the erection of four two storey buildings, on the lower rear portion of the site comprising a total of 12 dwellings (rear residential buildings); · a basement car park for the rear residential buildings at the rear comprising 17 resident car spaces and three visitor car spaces; · access to the basement car park is from a driveway along the northern boundary of the subject site, and is some 88 metres in length. A traffic control signal is provided, at the passing bay and at the threshold of the basement car park, to regulate traffic flow and; · the Torrens Title subdivision of the subject site into five lots, being one lot for each of the houses fronting Burchmore Road and one lot for the rear residential buildings.

RELEVANT PLANNING CONTROLS 7. The relevant planning instrument is Warringah Local Environmental Plan 2000 (LEP 2000). Clause 12 of LEP 2000 provides: (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with: (a) any relevant general principles of development control in Part 4, and (b) any relevant State Environmental Planning Policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards set out in the Locality Statement for the locality in which the development will be carried out. 8. In addition, as the development is categorised as a Category One development, the consent authority must consider the desired future character described in the relevant Locality Statement (cl 12(3)). The relevant Locality Statement is Locality G7 - Innes Road.

In relation to cl 12(1)(a), the relevant general principles of development control in Part 4 of the LEP 2000 are: · cl 56 - Retaining unique environmental features on sites: · cl 57 - Development on sloping land: · cl 58 - Protection of existing flora: · cl 62 - Access to sunlight: · cl 63 - Landscaped open space: · cl 64 - Private open space: · cl 66 - Building bulk: · cl 70 - Site facilities; and · cl 77 - Landfill . There are no State Environmental Planning Policies which apply under cl 12(1)(b).

The relevant requirements of Pt 2 of the LEP 2000 in relation to cl 12(2)(a) are: (i) cl 18 - How will the built form of the development be controlled? (1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. (2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality. As all the matters referred to in cl 18(1) must also be considered by the Court under cl 12. Those matters in cl 18(1) will be dealt with in that context. (ii) cl 20 - Can development be approved if it does not comply with a development standard? This is dealt with at par 97 - 104. (iii) cl 21 - Can land be subdivided? This is dealt with at par 105 - 108. There are no relevant requirements in Pt 3 of the LEP 2000.

In relation to cl 12(2)(b) the G7 Locality has the following relevant development standards: (a) housing density, (b) building height, (c) side boundary envelope and side setback, (d) rear building setback (e) landscaped open space.

The G7 Locality also identifies "medium density areas" which are shown in Warringah LEP 2000 map for G7 locality. The subject site is immediately next to a medium density area.

THE ISSUES 13. The Council filed a Statement of Issues containing 11 issues, including a number of sub-issues. Prior to and during the hearing a number of issues were settled (Issues 1(a), 1(b), 1(c), 4(a), 4(j), 4(h) , 4(i) and (8)) and one additional issue was raised. The remaining issues can be conveniently grouped into the following areas: (i) whether the proposed development is consistent with the desired future character statement? (Issue 2) (ii) whether the proposed development is satisfactory in terms of the G7 Locality development standards relating to: (a) housing density (Issue 3(a)) (b) building height (Issue 3(b)) (c) side boundary envelope and side setback (Issues 3(c) and 7) (d) rear building setback (raised at hearing) (e) landscaped open space (Issue 3(d)) (iii) whether the proposed development is satisfactory in terms of the general principles of development control relating to: (a) the natural features of the site (Issues 4(b), 4(c), 4(d), 7 and 9) (b) access to sunlight (Issue 4(e)) (c) landscaped open space (Issue 4(f)) (d) bulk (Issue 4 (g) and 9) (iv) matters raised by objectors. (Issue 11) (v) whether the land can be subdivided? (Issue 6) Issue 10 dealing with overdevelopment, is dealt with in the assessment of the above issues.

EVIDENCE 14. Expert evidence for the Council was provided by: · Mr Steven Layman, consultant town planner and architect · Ms Rebecca Eveleigh, council town planner · Mr Terry Machin, landscape designer · Mr John Mills, overshadowing consultant

Local residents who provided oral evidence were: · Ms Helen Wilkins, 13 Burchmore Road · Ms Vicky Antzoulatos, 14/40 Burchmore Road · Mr Craig Bullock, 18/40 Burchmore Road · Ms Mary English, 31 Burchmore Road · Mr Anthony Powe, 33 Burchmore Road

Expert evidence for the Applicant was provided by: · Mr Peter Strudwick, consultant town planner · Ms Narelle Sonter, landscape consultant · Mr Peter Thyer, arborist · Mr F Sproul, architect

Additional expert reports were tendered by both parties although their authors were not required for cross examination. These reports dealt mainly with matters where agreement was reached between the parties. PERMISSIBILITY
Issue 2, "Consistency with Desired Future Character" raises important preliminary issues of law and fact in (a) as well as "merit" issues in (b) and (c). The issue as stated in the Statement of Issues is: Whether as a Category 1 development under the G7 Innes Road locality, the Court can be satisfied that the proposed development is consistent with the desired future character statement in that: (a) The proposed development is within an area of the G7 locality not defined as a medium density area on the map. (b) The proposed development will not maintain the visual pattern and predominant scale of existing housing in the locality.

(This is dealt with in relation to development standards at par 36- 43) (c) The proposed development will adversely effect [sic] the spread of the existing indigenous tree canopy on the site.

(This is dealt with in relation to the general principles of development control in Pt 4 "protection of existing flora" cl 58 at 62 - 65.)

In relation to (a) I determined on the first day of hearing this was a mixed question of fact and law as it concerned not only interpretation of the LEP 2000, but also a determination of the nature of the development proposed. The issue is essentially whether the residential buildings at the rear of the proposal are "apartment buildings" and therefore prohibited on this site by LEP 2000.

The G7 Innes Road locality in Appendix G to LEP 2000 contains the following description of the Desired Future Character: The Innes Road locality will remain characterised by a mix of detached housing and apartment development in landscaped settings interspersed by a range of complementary and compatible uses. The development of further apartment buildings within the locality will be confined to the "medium density areas" shown on the map.

Future development will maintain the visual pattern and predominant scale of existing detached housing in the locality except in the areas marked as "medium density areas" on the map. In these medium density areas the scale of development is to relate favourably to existing apartment buildings in the area. The streets will be characterised by landscaped front gardens and consistent front building setbacks. The spread of indigenous tree canopy will be protected and enhanced throughout the locality.

Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality. 21. In relation to land use there are three categories of development specified. Category 1 is development for the purpose of "housing". The LEP provides at the end of cl 12(3) of LEP 2000 the following note: To assist with understanding: Category One development is development that is generally presumed to be consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally presumed to be inconsistent with the desired future character of he locality. The LEP also states that such notes are explanatory, and do not form part of the LEP. Prohibited development is also specified in the locality statement. 22. "Housing" is defined in the dictionary to the LEP 2000 as "development involving the creation of one or more dwellings, whether or not used as a group home". There is also a definition of "dwelling" which means "a room or a suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". There is no definition of "apartment", "apartment building", "townhouse", "terraced house" or any other form of residential development in the LEP.

Council's submissions 23. It is the Council's submission that this development cannot fit within the G7 Desired Future Character statement because of the nature of the development and the LEP provisions. The Category 1 development allowed is "housing". The Council argued that as the first sentence of the Desired Future Character distinguishes between "detached housing" and "apartment development", these are the only two categories of "housing" which can exist under the G7 Innes Road Locality. Accordingly, all housing which is not detached must be apartment development. As the four rear residential buildings at the rear of the subject development are not detached housing and display features of an apartment development, they should be so regarded.

Further, the Desired Future Character Statement second sentence states that: The development of further apartment buildings within the locality are to be confined to the medium density areas shown on the map. The Council submits that as the subject site is not within a "medium density area" the proposed development is prohibited.

Applicant's submissions 25. In its submissions the Applicant argued that the proposed development constitutes housing, as allowed in Category 1 in the G7 locality under LEP 2000. Further, no part of the proposed development could be characterised as apartment buildings for the purposes of the LEP. The Applicant's submission is that the definition of "housing" can include a range of housing, including townhouses, and the residential buildings at the rear of the proposed development should be so identified.

The Applicant submitted LEP 2000 uses the term "townhouse" in cl 64 as well as the term "apartment buildings", but does not define these terms. They are not defined elsewhere in planning legislation. As they are ordinary English words, the Applicant argues, they can be given their ordinary and natural meaning, relying on Kitto J in NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 514. The Applicant referred to the definition of those terms in the Macquarie Dictionary and the Australian Concise Oxford Dictionary. "Apartment house" is referred to as a "building divided into apartments" and "a block of flats" and "apartment" as a flat in both dictionaries. "Town house" is defined as "a house designed as part of a small block of such, each being sold under strata title, and each with ground floor access".

The Applicant further relies on Marchese Partners Architects Pty Ltd v Warringah Council [2002] NSWLEC 31 where Cowdroy J had to consider the same LEP on a different question of law. In the course of his judgment his Honour considered the meaning of "apartment building". His Honour, the Applicant submits, used the term "flat building" as a synonym for the term "apartment buildings" on three occasions. Furthermore, the evidence of Mr Strudwick is relied on to show that the residential buildings at the rear of the proposed development could not be characterised as apartment buildings i.e. as a block of flats. Notably several of the objectors had no hesitation in describing the development at the rear of the site as townhouses.

The Applicant argues it cannot be correct that on the construction of LEP 2000 all housing which is not "detached housing" is "apartment development". The definition of housing, defined in LEP 2000, clearly encompasses townhouse development such as is proposed at the rear of the site. Further the Locality Statement states in the first sentence: The Innes Road locality will remain characterised by a mix of detached housing and apartment development in landscaped settings interspersed by a range of complementary and compatible uses. This suggests that other development contemplated within the definition of housing other than detached housing and apartment development should be allowed in the locality. The sentence contemplates other permissible forms of housing. Townhouse-style development is clearly a complementary and compatible use in this locality.

The Applicant also argued in the alternative that apartment buildings were not prohibited on this site. Clause 10 of the LEP provides that development can be identified as being prohibited within a locality statement. Prohibited development in this locality does not include apartment buildings outside the "medium density" areas. Given that cl 12(3)(a) requires only that the desired future character be considered in relation to Category One development, it would be within the planning discretion of the consent authority to determine that in the particular site-specific circumstances of the case, apartment buildings on the subject land could be acceptable at the rear of the site, even if the development is not consistent with the desired future character statement. This is in contrast to Category Two and Three development which must be consistent with the desired future character. To read the sentence in the Locality Statement "The development of further apartment buildings within the locality will be confined to the "medium density" areas shown on the map" as equating to a prohibition, when apartment buildings are not included in the prohibited development category of the land use table is not appropriate in the Applicant's view. The desired future character is for consideration by the consent authority, but is not mandatory under cl 12(3)(a).

Finding 30. On this issue, I am more persuaded by the submissions of the Applicant. The land use table for permissible development in the G7 Locality does not seek to categorise the acceptable form of development beyond the general definition of "housing". The reference to "apartment development" which occurs in the Desired Future Character statement refers specifically to the existing form of development generally found in those areas shown as "medium density" areas. That development generally takes the form of three levels of residential accommodation with a level of parking at ground level.

The layout of the proposed rear residential buildings differs from the existing apartment buildings to the east immediately next door, and apartment buildings as understood generally, in that one residence occupies the two floors of the building whereas the residential component of the apartment building is on one floor only. The proposed rear residential buildings are not of the same character. The form, scale and bulk is significantly different from "apartment buildings", as characterised as a block of flats. Further, the proposed rear residential buildings clearly present as smaller and are more of a detached housing scale than the existing apartment buildings next door.

Given the broad definition of "housing" which is permissible in this locality, to confine it, as the Council proposes, to either detached housing or "apartments" is not open on the wording of the LEP 2000.

While the Applicant sought to categorise the rear residential buildings as townhouses I am not convinced it is necessary to formally categorise the rear residential buildings in the proposed development, apart from finding that they are not apartment buildings. LEP 2000 allows this form of development given the broad definition of "housing" subject to compliance with the relevant parts of the LEP..

I do not make any finding on the Applicant's second submission at [29], given my finding in favour of the Applicant's first submission. I note the Applicant's submission on the possible interpretation of the LEP appears to have merit. I also note however that the Applicant's arguments appear at odds with the decision of Cowdroy J in Marchese Partners Architects Pty Ltd v Warringah Council [2002] NSWLEC 31. The Applicant argued this decision could be distinguished.

DEVELOPMENT STANDARDS 35. In relation to cl 12(2)(b) the Court must be satisfied before granting development consent that the development complies with the "development standards for the development set out in the Locality Statement for the locality in which the development will be carried out". The relevant development standards in the G7 locality plan relate to housing density, building height, rear building setback, the side boundary envelope and side setback and landscaped open space.

(a) Housing Density The development standards for housing density in the G7 locality state: The maximum housing density is 1 dwelling per 600 [square metres] of site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent)…

This control does not apply: (a) where the standard would prevent an existing allotment accommodating one dwelling, (b) on land equal to or greater than 3,000 [square metres] in area, where the land area per dwelling may be reduced provided the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscape character of the street and surrounding development

Also relevant is the last sentence of the G7 Locality statement which states: Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
Mr Layman, an expert witness for the Council, acknowledges the provisions of par (b) in the housing density development standards where the maximum housing density of one dwelling per 600 square metres of site area can be reduced on land equal to or greater than 3000 square metres as in this case. In his opinion, the qualification that the buildings be "sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscape character of the street and surrounding development" is not achieved by the development. For the residential buildings at the rear, the reduced site area militates against any attempt to relate to the scale and landscape character of the street and surrounding area. Further, Mr Layman states that the design does not relate favourably to the visual pattern of the street and surrounding development.

Mr Strudwick, the Applicant's expert witness, sees the proposal as "provid[ing] a visual pattern that generally maintains the spatial arrangements established by existing dwellings… Of some importance is the visual pattern and scale of the proposed development when viewed from the street and its ability to be able to integrate within the streetscape" (Exhibit A, p 19). Mr Strudwick notes that "the visual pattern and scale of existing detached housing in the whole of the G7 locality varies" (Exhibit A, p 19). He conducted a visual survey of the area. On this basis he concludes that "the proposed dwelling houses will maintain the visual pattern and the predominant scale of existing detached housing in the locality" (Exhibit A, p 20). Mr Strudwick further states that the proposed rear residential buildings "will not be readily visible from the street frontage and will not affect the visual pattern of the streetscape" (Exhibit A, p 20). In any event, "these buildings are not inconsistent within the building form of some of the larger detached dwellings within the immediate area" (Exhibit A, p 20) and adjoining apartment developments.

The Desired Future Character statement for this locality appears to provide that any subdivision which is exempt from the housing density standard does not need "to be consistent with the predominant pattern size and configuration of existing allotments in the locality". This does not appear to conform with the housing density standard in the same locality statement in relation to sites over 3,000 square metres which provides the buildings are to be "sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscape character of the street and surrounding development". The standard provides no further numerical guidance on an appropriate density.

Applying the housing density standard, the density exemption in the standard clearly envisages smaller allotment sizes, provided the siting and design of the residential dwellings relate favourably to the pattern and scale (and landscape character, which is discussed below) of other residential dwellings in Burchmore Road, and surrounding development. I think the proposal does this. It is not necessary to replicate the particular architectural style (even if one existed), only that it relate favourably. The more modern architectural style that is proposed is different in appearance from other properties in the vicinity, but not in scale and siting at the front of the property. The proposal presents from the street as detached dwellings with consistent street setbacks, separation between buildings and height, notwithstanding the minor departures from a number of standards; a fact accepted by Mr Layman.

The residential buildings at the rear have a different context to the houses facing Burchmore Road. They are not generally visible from Burchmore Road (except down the access road) and are located at a much lower level. These buildings also adjoin the apartment buildings along the eastern boundary of the site and are lower in height than the apartment buildings. I can also conclude that these buildings relate favourably to the pattern and scale of the street and surrounding development.

In terms of the proposed landscaping and its relationship with the landscape character of the street and surrounding development, I accept that Ms Sonter's landscape plan in conjunction with the retention of a number of existing trees, adequately satisfies the requirement of the standard.

(b) Building height The development standards for building height in the G7 locality state: Buildings are neither to exceed 2 storeys nor 8.5 metres, except within the areas shown as "medium density areas" on the map.

Within the medium density areas, buildings are neither to exceed 3 storeys nor 11 metres.

Buildings must comply with both the maximum height measured in storeys and the maximum height measured in metres.

To measure the height of a building: · the maximum height in metres is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and natural ground level below, · a storey is the space between two floors, or the space between any floor and its ceiling or roof above. · foundation spaces, garages, workshops, store rooms and the like which do not project more than 1 metre above natural ground level (at any point) are not counted as storeys, · the number of storeys is the maximum number of storeys which may be intersected by the same vertical line, not being a line which passes through any wall of the building. Buildings are not to exceed 2 storeys in height. Consent may be granted for a building of more than 2 storeys outside the medium density areas, and on significantly sloping land, but only if the additional storey: · does not exceed the 8.5 metre height standard, and · is designed and located to minimise the bulk of the building, and · has minimal visual impact when viewed from the downslope sides of the land.

Two issues were raised in relation to the number of storeys and building height: (i) Mr Layman states that the rear elevation of the four houses present as three storeys. Mr Layman notes the sectional drawings show a level of 1.3 metres above natural ground for the four houses, therefore making these three storeys in height. (ii) House 4 also exceeds the 8.5 metre height requirement, although Mr Layman states that this could be rectified with an amendment to the ceiling height and floor levels. Ms Eveleigh acknowledges that the height variation is "very minor" although she maintains that compliance is required.

There was agreement by the Applicant that the houses did not satisfy the storey requirement by some 300 millimetres and that part of the roof of house 4 breached the 8.5 metre height limit. Mr Strudwick describes the non-compliance with the storey control as "minor" and notes that it occurs only at the rear section of the houses. He indicated that there is only a very minor encroachment of the height control for the roof of house 4.

Provision is made for the variation to the storey requirements in the building height standard (last paragraph) although the 8.5 metre height standard must be met. The variation to the height standard is extremely small and does not contribute to any perception of unacceptable or obvious height and as such I see no compelling reason to require compliance in this case. Additionally, I accept that the proposal is designed to minimise the bulk of the building and provide minimal visual impact when viewed from the downslope sides of the land. While Mr Layman was concerned that the houses presented as three storeys from the rear, this is a direct consequence of stepping the buildings down the site, which reduces their bulk and visual impact.

(c) Rear building setback The development standards for rear setback in the G7 locality statement state: The minimum rear building setback is 6 metres.

The rear building setback area is to be landscaped and free of any above or below ground structures.

To measure the rear building setback: · the rear building setback is the distance measured perpendicular to the boundary furthest from a public street up to any structure on the allotment.

The rear building setback does not apply to corner allotments.

Outside the medium density areas the rear building setback may be encroached by: · exempt development, swimming pools and outbuildings which, in total, do not exceed 50 per cent of the rear setback area. 49. While not raised in the Statement of Issues, Ms Eveleigh states that the four houses fail to meet the 6 metre setback; the setbacks ranging from 3.5 metres to 5.3 metres. Her evidence does not disclose the planning basis for her objection only that it does not satisfy the 6 metre standard.

Mr Strudwick notes the departures, but states that the houses could be made to comply although he does not consider it to be necessary.

In my view, the departures are not significant and occur at only parts of the houses. The 5.3 metre setback for houses 1, 2 and 3 occurs for a length of 3 metres while the living room is set back a distance of 6.5 metres for a length of some 4.5 metres. The upper level of these dwellings is set back 8 metres. House 4 has its rear elevation skewed to the rear boundary and excluding the ground floor balcony, is set back between 4.5 metres and 5.5 metres. The upper level is set back a minimum of 6.5 metres. Due to the changes in levels, landscaping and fencing there will be an acceptable impact on the apartment buildings to the east, in my view.

(d) Side boundary envelope and side setbacks The development standards for side boundary envelope and side setback in the G7 locality states: Buildings must be sited within an envelope determined by projecting planes at 45 degrees from a height of 4 metres above natural ground level at the side boundaries.

The minimum setback from a building to a side boundary is 0.9 metre except within the medium density areas where the minimum setback from a building to a side boundary is 4.5 metres.

Outside medium density areas: · fascias, gutters, downpipes, eaves up to 0.675 metre from the boundary, masonry chimneys, flues, pipes, or other services infrastructure may encroach beyond the side boundary envelope, · screens or sunblinds, light fittings, electricity or gas meters, or other services infrastructure and structures not more than 1 metre above natural ground level such as unroofed terraces, balconies, landings, steps or ramps may encroach beyond the minimum side setback. Consent may be granted for development outside medium density areas that, to a minor extent, does not comply with: · the side boundary envelope, to allow the addition of a second storey to an existing dwelling, or · the side setback, to allow a single storey outbuilding, carport, pergola or the like.

Ms Eveleigh states that the four houses do not comply with the side boundary envelope. She considers the wall height of all four houses is excessive, and results in excessive size, bulk and scale of the buildings when viewed from neighbouring properties. Further, she states it has not been demonstrated that suitable landscaping can be provided to screen the bulk of the development. House 4 also fails to comply with the minimum 900 millimetre setback for part of its northern boundary and where it adjoins the access driveway to the rear residential buildings.

Mr Strudwick states that the single departure from the 900 millimetre setback occurs for only part of the northern setback for house 4 situated next to the access driveway. The actual setback to the northern boundary of the site for this elevation is in the order of 6.5 metres when the driveway is taken into account. The breaches to the side boundary envelope occur only at parts of the houses and are the result of the fall of the land away from Burchmore Road. Overall, the breaches do not give rise to any adverse impacts in terms of visual bulk, privacy and solar access.

The plans show the departures to the side boundary envelope control are only minor. I accept the evidence of Mr Strudwick that this is essentially caused by the topography of the site and has an acceptable impact on surrounding properties. Similarly, the breach of the 900 millimetre setback occurs to a "minor extent" being only six metres of an overall wall length of around 18 metres for dwelling house 4. I also accept that Ms Eveleigh's concerns in relation to landscaping are satisfactorily addressed by Ms Sonter's landscape plan.

(e) Landscaped open space The development standards for landscaped open space in the G7 Locality Statement states: The minimum area of landscaped open space is 40 per cent of the site area, except within medium density areas where the minimum area of landscaped open space is 50 per cent of the site area. To measure an area of landscaped open space: · impervious surfaces such as driveways, paved areas, roofed areas, tennis courts, car parking and stormwater structures, decks and the like and any area with a width or length of less than 2 metres are excluded from the landscaped open space area, · the water surface of swimming pools and impervious surfaces which occur naturally such as rock outcrops are included in the landscaped open space area, · landscaped open space must be at ground level, · the minimum soil depth of land that can be landscaped open space is 1 metre.

Mr Layman calculates that houses 1, 2 and 3 do not achieve the 40% requirement and provide 32.3%, 33.6% and 33.8% respectively. Similar figures (31%, 32.2% and 31% respectively) were calculated by Ms Eveleigh although she calculated house 4 at 35%. Mr Strudwick did not differ significantly from the figures calculated by Mr Layman (32%, 33% and 36% respectively).

Notwithstanding the departure from the development standard Mr Strudwick concludes that the provision of landscaped open space is satisfactory. He suggests that the landscaped open space "should be examined in a broader context and in particular whether it satisfies the desired future character of the locality". He also relies on the satisfaction of the objectives of the open space controls although numerical standards are not met entirely. Further, each house complies with the requirements for private open space. Additionally, and on an overall assessment the proposal provides 39% for landscaped open space, which is only marginally below the 40% requirement.

On balance, I accept Mr Strudwick's arguments. I am mindful that while the side setback areas between the houses and their proposed boundaries does not satisfy the 2 metre minimum dimension, this area can contribute to the landscaped quality of the site. In most cases, the combined side setbacks between houses exceeds the 2 metre requirement. Ms Sonter's landscape plan addresses this area and I note little, if any, contrary evidence was put before the Court on her landscaping evidence. I am also aware that the inclusion of the side setback areas would see the houses achieve a level of landscaped open space in excess of the 40% standard.

GENERAL PRINCIPLES OF DEVELOPMENT 60. Applying the matters to be considered under cl 12(1)(a) as raised in the Statement of Issues the relevant general principles of development control in Pt 4 are:

(i) Natural features For convenience, I have grouped together the general principles of development control that relate to the impact on the natural features of the subject site. These are clauses: 56 Retaining unique environmental features on sites Development is to be designed to retain and complement any unique environmental features of its site and on adjoining and nearby land.

In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. 57 Development on sloping land On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope.

In particular: · the amount of fill is not to exceed more than 1 metre in depth, and · fill is not to spread beyond the footprint of the building The geotechnical stability of sloping land to support development is to be demonstrated. Consent must not be granted for development involving the erection of a structure, including additions to an existing structure, on land identified as being potentially subject to landslip on the Landslip hazard Map unless the consent authority has considered a report from a suitably qualified engineer as to the geotechnical stability of the land to support such development and an assessment of stormwater prepared by a suitably qualified hydraulic engineer.

58 Protection of existing flora Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. 77 Landfill Landfill is to have no adverse impact upon the visual and natural environment or adjoining and surrounding properties.

In particular: · only uncontaminated fill is to be used, and · the form, bulk, scale, and location of landfill are to be controlled to ensure there will be no adverse impacts on adjoining or surrounding properties, and · the integrity of the physical environment is to be preserved by ensuring the geotechnical stability of the work, and · the landfill is not to create siltation or pollution of waterways and drainage lines, or degrade or destroy the landscape, landforms or bushlands, and · rehabilitation and revegetation techniques are to be applied to the fill to maintain and enhance visual and scenic quality, and · landfill is not to create airborne pollution.

The impact on the natural features of the subject site centres around two areas. These are the ability to retain the Sydney Red Gum (angophora costata) near the northern boundary and the impact of the proposed retaining structure on the rock shelf located between the houses and the rear residential buildings.

In relation to the Sydney Red Gum, the potential impact from the driveway which goes to the basement carpark for the rear residential buildings was an issue between the parties. While there was some dispute over the exact location of the tree, I am not convinced that the small distance that was still in dispute is material. Similarly, the differences over the location of the limbs of this tree is also not so weighty as to justify refusal of the application.

The potential impact of the driveway on the longevity of the Sydney Red Gum was subject to expert evidence from Mr Theyer and Ms Sonter for the Applicant, and Mr Machin for the Council. Mr Theyer and Ms Sonter stated that the Sydney Red Gum would survive into the long term. Mr Machin stated that the tree would survive in the "interim period" meaning 5 - 15 years, but could not guarantee that the tree would survive beyond the interim period. While the experts did not totally agree, the general consensus was that the Sydney Red Gum would be adequately protected, at least if the proposed conditions in Exhibit M were implemented, notwithstanding the proximity of the proposed driveway.

In terms of cl 58, I accept the particular design proposed by the Applicant minimises the potential impact on the tree. Retention of the Red Gum provides for maintenance of the native canopy to a significant degree. While some of the existing trees are to be removed the landscaping plan provides for their replacement and additional planting.

In relation to the rock shelf, Mr Layman sees the proposal as demonstrating no regard for the retention of this feature. Further, the fill reaches a depth of 3 metres at the rear of the houses, well beyond their footprint. Mr Layman maintains that as the retaining wall needs to be 38 metres long to retain the fill it exacerbates privacy impacts on the lower level rear residential buildings. He describes the retaining wall as a "tall, visually intrusive element" (Exhibit 7, p 28). Mr Layman's concerns are supported by Ms Eveleigh who describes this part of the proposal as "insensitive nor design responsive to the physical and environmental features of the site" (Exhibit 5, p 28).

Mr Strudwick, on the other hand, sees the rock shelf as not of such environmental or aesthetic significance to warrant incorporation within the design. He notes that it is hidden within the site and not clearly visible or appreciated from adjoining sites or the public street. While the fill exceeds the 1 metre specified in cl 57, it is located in the rear yards of the houses to provide useable open space. Mr Strudwick states that the proposal satisfies the intent of the general principle by: · "stepping" the proposal down the site, · having an acceptable visual impact when viewed from the downslope, · not being readily visible from adjoining properties, · the view of the houses will be impeded by surrounding development, · simply formalising the existing characteristics of the site, and · having no adverse impact on the adjoining properties.

Clause 56 deals with "unique environmental features" on site. For some guidance, the Macquarie Dictionary, Revised 3rd edition, defines "unique" as: 1. of which there is only one; sole. 2. having no like or equal; standing alone in comparison with others; unequalled. 3. remarkable, rare or unusual: a unique experience.
The evidence did not suggest that the rock outcrop would fall within the meanings of "unique" outlined in the Macquarie Dictionary. While it is a feature of the site it could not be seen as unique nor warranting special consideration in the design of the proposal.

The height of the retaining structure varies from around 900 millimetres at the north to around 2.8 metres towards the south. A further fall occurs to the lower level of the outdoor areas of the rear residential buildings. This ranges from around 1.9 metres in the north to around 1.7 metres in the south. Currently, the natural change in level is mainly obscured with vegetation or man made features and any glimpses of natural features are limited. This area is to be landscaped and according to Ms Sonter's evidence, will lessen the perception of bulk. In my opinion, the stepping of the fill from the rear yards of the houses, through the pathway to the terraced open space area of the rear residential buildings provides an acceptable treatment to this part of the subject site, when combined with the proposed landscaping.

In terms of cl 57, I accept that the proposal is satisfactory. While the fill exceeds 1 metre in height and spreads beyond the footprint of the building, the particular topographic features of the site must be considered. The proposal does not present as being overly high or bulky because of the stepping of the houses down the site. The landfill, while exceeding 1 metre in height does not create any internal or external concerns.

The requirement in cl 77 that landfill have "no adverse impact upon the usual and natural environment or adjoining and surrounding properties" is also satisfied by the proposal in my view.

(ii) Access to Sunlight The general principles of development provide, in cl 62, the following controls for access to sunlight: Development is not to unreasonably reduce sunlight to surrounding properties.

In the case of housing: · sunlight, to at least 50% of the principal private open spaces, is not to be reduced to less than 2 hours between 9 am and 3 pm on June 21, and · where overshadowing by existing structures and fences is greater than this, sunlight is not to be further reduced by development by more than 20%. Similar standards for sunlight are also provided in cl 64, concerning sunlight in private open space.

Mr Mills and Mr Sproul were directed to confer on their evidence on the impact of shadowing. Both used different techniques (Mr Mills by hand and Mr Sproul by computer). Although they agreed that the shadow diagrams were essentially the same, they differed somewhat in the measured areas and neither were prepared to confidently say which of their calculated areas of sunlight was correct.

It was agreed, however, that 11 of the 16 dwellings complied. The non-compliances were located at houses 1 and 4 and units 5, 6 and 12 within the rear residential buildings.

For the two-bedroom dwellings in the rear residential buildings a minimum of 17.5 square metres is required for at least two hours between 9.00 am and 3.00 pm on June 21. For the houses and the three-bedroom dwellings in the rear residential buildings a minimum area of 30 square metres is required for the same time period.

The comparative figures provided by Mr Mills and Mr Sproul are shown below for the five dwellings in dispute:

Residential dwelling SPROUL MILLS (house 1) (sq. metres of sunlight) (sq. metres of sunlight) 10 am 30.6 28.1 10.30 am 33.8 30.9 11 am 35.6 33.4 12 noon 30.0 27.5 12.30 pm - - 1 pm - -

Residential dwelling (house 4) 10 am 26.3 26.6 10.30 am 25.6 26.4 11 am 26.2 26.8 12 noon 25.8 24.4 12.30 pm - - 1 pm - -

10 am - - 10.30 am 11.1 10.6 11 am 17.6 16.1 12 noon 18.8 15.5 12.30 pm 17.4 13.7 1 pm 15.0 10.8

10 am - - 10.30 am 10.0 10.4 11 am 18.4 17.1 12 noon 19.3 17.5 12.30 pm 17.1 14.8 1 pm 12.8 11.1

10 am - - 10.30 am 17.4 15.8 11 am 15.4 19.4 12 noon 20.3 19.5 12.30 pm 17.6 16.3 1 pm 14.0 12.5

Based on these figures (and even using the lower figures) I accept that the development does not unreasonably reduce sunlight to surrounding properties on site under cl 62. In relation to cl 64, the largest departure occurs at house 4 and is in the order of three to four square metres, the minimum being 30 square metres. The departures from the two hour standard are small and given the north/south orientation and the topography of the development the access to sunlight is acceptable.

(iii) Building bulk The general principles of development provide controls for building bulk in cl 66: Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.

In particular: · side and rear setbacks are to be progressively increased as wall height increases · large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and · appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.

Mr Layman raises a number of specific concerns over the bulk of the proposal. He sees the proposal creating a bulky, hard surfaced appearance where the access driveway adjoins house 4 as viewed from Burchmore Road. Also, the side elevations of the houses present as large areas of continuous wall planes and are generally unrelieved by fenestrations. He also sees the three storey appearance, the close spacing of the houses, the length and height of the retaining wall and limited side setbacks as contributing to the bulk. Mr Layman accepts that landscaping can be used to reduce unusual bulk but that this has not been appropriately dealt with in the proposal.

Mr Strudwick states that the proposal will be viewed in the context of adjoining and nearby development. The height and bulk of the houses will be compatible with other two storey dwellings in Burchmore Road. The position below street level further reduces their prominence. He rejects Mr Layman's concerns over the side setbacks and that the elevations are not progressively set back on the basis that additional setbacks are not required for privacy, solar access or to reduce visual prominence. The rear residential buildings are not a visible feature of the streetscape and in any event are compatible in scale with the larger dwellings in the area and in pattern and scale with the adjoining apartment buildings.

On this issue, I am more persuaded by the evidence of Mr Strudwick. Building bulk is made up of a number of factors including height, setbacks, design landscaping, and elevation presentation. I agree with Mr Strudwick that there is no overpowering need to set back the upper levels of the rear residential buildings as they are largely out of sight when viewed from Burchmore Road. I am also mindful of the proposed landscaping. Similarly, the areas of the side elevations are not prominent and there is provision of adequate landscaping. While the northern elevation to house 4 will be more prominent and will have no opportunity for landscaping for a small part of its length, it is not sufficient to warrant the refusal of the application.

(iv) Landscaped open space The general principles of development provide the following controls for landscaped open space in cl 63: Landscaped open space is to be of such dimensions and slope and of such characteristics that it will: · enable the establishment of appropriate plantings to maintain and enhance the streetscape and the desired future character of the locality, and · enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale, and · enhance privacy between dwellings, and · accommodate appropriate outdoor recreational needs and suit the anticipated requirements of dwelling occupants, and · provide space for service functions, including clothes drying, and · facilitate water management including on-site detention and the infiltration of stormwater, and · incorporate the establishment of any plant species nominated in the relevant locality Statement, and · conserve significant features of the site.

While Mr Layman's concerns initially related to the loss of the Sydney Red Gum, which the Applicant now proposes to retain, he still expresses concern over the impact from the loss of other trees and the treatment of the rock shelf. In his opinion, "other plantings could be provided in the landscaped open space but it is not of sufficient dimensions to adequately balance building bulk and the scale of development".

Mr Strudwick relies on the landscape plan of Ms Sonter to conclude that the proposed landscaping will be compatible with the existing streetscape. The existing landscaped character will be embellished with the provision of additional plantings to enhance the appearance of the street and the area in general. He considers that the landscaped open space associated with each dwelling is able to accommodate facilities normally associated with residential living.

On this matter I accept that appropriate plantings can be provided to maintain and enhance the streetscape and the desired future character of the locality. The landscape plan provided by Ms Sonter was largely unchallenged. There was also no evidence to suggest that appropriate recreational needs could not be provided or that any of the other matters raised in cl 63 were not adequately addressed.

(v) Site Facilities The general principles of development in cl 70 provide the following controls for site facilities: Site facilities including garbage and recycling bin enclosures, mailboxes and clothes drying facilities are to be adequate and convenient for the needs of users and are to have minimal visual impact from public places. In particular: · waste and recycling bin enclosures are to be adequate in size, durable, integrated with the building design and site landscaping, suitably screened from public places or streets and located for convenient access for collection, and · housing which is required to have landscaped open space is to be provided with adequate open air clothes drying facilities which are suitably screened from public places or streets, and · individual dwellings are to be provided with an area for general storage.

Mr Layman states that the mailboxes for the rear residential buildings are not shown on the plans. Additionally, garbage and recycling arrangements require bins to be transported from the basement carpark to near the street frontage for collection. Also, the garbage collection alcoves near the street frontage are not screened. Similar concerns are expressed by Ms Eveleigh.

Mr Strudwick indicated that the concerns of Mr Layman and Ms Eveleigh could be overcome by a contractor using a smaller vehicle to pick up the garbage and recycling for the basement area. He described this as a common approach in his experience.

This is not a matter that is fundamental to the determination of this appeal but is a matter that needs to be clarified and reflected in the conditions of approval, which has been done in conditions 102 to 105.

MATTERS RAISED BY OBJECTORS 91. The residents raised the following additional issues: · traffic/safety/parking · loss of trees · incompatibility of dwellings/character/density · noise from driveway Issue 11 in the Statement of Issues provides "Whether the appeal should be dismissed having regard to the objections and matters raised by the local residents".

The Council presented no evidence other than the evidence of the objectors in relation to the potential increased traffic and on street parking nor regarding any concern over the potential safety impacts of any additional traffic emanating from the development. As part of the development application submitted to the Council, the Applicant provided an expert report on traffic and parking implications. This report concluded that the post development traffic demand is well within levels considered environmentally acceptable. Similarly, it concluded that the driveway achieves a satisfactory level of safety. While the Council's Traffic Engineer raised some concerns with the proposal, no concern was raised in relation to this particular issue. In the absence of any contrary expert evidence, I concur with this conclusion.

The loss of trees was seen as an important issue by a number of residents. Their concerns were somewhat diminished by the retention of the Sydney Red Gum. While other trees will be lost through the redevelopment, I find that the additional landscaping proposed will provide a landscaped character that will complement the area.

The issue of the scale of the development was seen by most residents as unacceptable and an overdevelopment of the site. While most residents indicated that they saw no problem with the subject site being redeveloped, the proposal was excessive in their opinion. In this regard, the density of the development is controlled through LEP 2000 as discussed above at par 36 - 43. While I can understand the concerns of the residents over the density of the proposal which is clearly much greater than would exist on sites less than 3,000 square metres, development of this nature is clearly envisaged by LEP 2000, subject to the other requirements of that instrument.

In relation to the concern relating to noise from vehicles using the driveway, I accept that this will occur however, due to the number of traffic movements normally associated with residential development that will likely occur, such impacts are not significant enough to justify refusal.

CLAUSE 12(3) - CONSIDERATION OF DESIRED FUTURE CHARACTER 96. Clause 12(3) requires that before granting consent for development classified as Category One (as in this case) the Court must consider the desired future character described in the relevant Locality Statement. As cl 20 requires a more rigorous test in relation to the desired future character of the locality, namely that a development must be "consistent with" the desired future character, this issue will be considered in relation to cl 20.

CLAUSE 20(1) - LEP 2000 97. Clause 20(1) allows development consent to be granted even if a development does not comply with one or more development standards, providing the development is consistent with the general principles of development control and the desired future character of the locality.

The application of the term "consistency" has been addressed by the Court on a number of occasions and was found to mean not antipathetic, nor incompatible or inconsistent with. (See Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27), Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (per Clarke JA at 192), Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 (at 439), Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, and Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 (at par [25] - [28])).

The proposal does not comply with a number of the development standards. The departures are addressed earlier in the judgment. However, due to the minor nature of these breaches and the minimal impact that the breaches create I have found that they are justified in this instance.

I consequently find that the proposal, notwithstanding the departures to the development standards, is consistent with the general principles of development control. An assessment of the relevant general principles of development control found some departures but not to the extent that would make the proposal inconsistent with the particular general principle.

The other matter required to be considered pursuant to cl 20(1) is the desired future character of the locality. I have already found that the rear residential buildings are not "apartment development" and that the proposal generally is consistent with the predominant pattern, size and configuration of existing detached dwellings in the locality.

Further, the locality statement requires "streets will be characterised by landscaped front gardens and consistent front building setbacks" and the "spread of indigenous tree canopy will be protected and enhanced throughout the locality". The "landscaped setting" will continue with this development.

I can conclude that the development will be consistent with the need to "maintain the visual pattern and predominant scale of existing detached housing in the locality". The proposal is also consistent with the requirement that "streets will be characterised by landscaped front gardens and consistent front building setbacks." The "spread of indigenous tree canopy will be protected and enhanced" through the retention of the Sydney Red Gum and the proposed landscaping.

There is no planning reason why the provisions of cl 20(1) should not be used to vary the departures to the development standards and general principles of development control in this instance.

SUBDIVISION 105. Clause 21 of LEP 2000 is titled "Can land be subdivided?" and states "land can be subdivided so long as…(b) the resulting allotments contain buildings or works lawfully created or approved". Schedule 7 (referred to in cl 21(3)) provides specific "matters for consideration in the subdivision of land" if it applies. In relation to lot dimension, Sch 7 specifically provides that it does not apply to new allotments proposed pursuant to cl 21(1)(b).

The Council argued that none of the proposed allotments comply with the width or depth standards provided in Sch 7.

The Applicant argued that the proposal seeks the subdivision of the land in conjunction with the erection of dwellings. There is no obstacle to the approval of the subdivision if the buildings are approved by the Court based on a satisfactory assessment in relation to the various provisions of LEP 2000 and in accordance with cl 21(1)(b) of LEP 2000.

The terms of cl 21 and Sch 7 are clear and the subdivision proposed by the Applicant is allowed in circumstances where the lot dimensions are less than in Sch 7 but will contain buildings which will be lawfully approved by the Court as required by cl 21(1)(b).

CONDITIONS 109. Of the Council's draft conditions, the Applicant objected to the following: Condition 63: The developer/applicant must lodge with Council, prior to the issue of the Construction Certificate, a Security Deposit/Bank Guarantee of $30,000 to ensure compliance with the approved engineering plans and Council's standard specifications. The deposit/guarantee will only be refunded on completion of the Maintenance Period, if the work has been completed in accordance with the approved plans, conditions, and to the satisfaction of the principal consent authority. Requests for refund must be made in writing to the Council.

A Maintenance Period of six (6) months shall apply to the work, after it has been completed and approved in writing by Council. In that period the applicant shall be liable for any part of the work which fails to perform in the manner outlined in Council's specifications for engineering works, or as would be reasonably be expected under the design conditions. (cl 14) Mr Parry submitted that there was no power to impose the condition. Mr Wilson disagreed, indicating that bonds are regularly imposed in development consents for different purposes, including tree retention. The argument over power was not pursued by either party with any depth to allow the Court to determine the issue on this argument. I am not convinced the bond is necessary when the Council, as the certifying authority, has the option, in ensuring compliance with the approved engineering plans, of not giving approval to these if there is non-compliance. Accordingly, the condition can be deleted.

Condition 94: In accordance with Part 7B of the EPA Act the owner of a building is to provide Council with an Annual Fire Safety Statement for the building (Form 15A). (C394)

Mr Parry submitted that condition only reiterated the law and as such was not necessary for the condition to be imposed. Mr Wilson agreed with Mr Parry and on this basis the condition can be deleted.

ORDERS For the foregoing reasons, the Orders of the Court are:

The appeal is upheld.
Development Application No. 2001/993DA is approved subject to the conditions in Annexure A.
The exhibits be returned with the exception of Exhibits 20, H, and Y.
No order as to costs. ANNEXURE "A"

Conditions Land and Environment Court Proceedings No. 10760 of 2001 42-48 Burchmore Road, Manly Vale August 2002

Development being generally in accordance with plans numbered:-

architectural plans A0001G A0002G A0003G A0004G A0005G A0006G A0007G A0008G A0009G Prepared by Macphail & Sproul Architects,

landscape plan: No LCP.011B Prepared by Narelle Sonter, dated 12 April 2002

Stormwater drainage plans: Job No.000347, Drawing No. D01 - D06 dated April 2002 prepared by Northern Beaches Consulting Engineers Pty Ltd,

As modified by any conditions of this consent/approval. (C1)

At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998 of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence. (C168).

Compliance with Building Code of Australia a. All building work must be carried out in accordance with the provisions of the Building Code of Australia. b. This clause does not apply to the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4). (C375)

Payment of the Long Service Leave Levy is required prior to the release of the Construction Certificate. This payment can be made at Council or to the Long Service Payments Corporation. This payment is not required where the value of the works is less than $25,000. (C3)

Change of building use: a. A building in respect of which there is change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. NOTE. The obligation under this subclause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent. b. This clause does not apply to the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4). c. In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B. (C376).

Residential Building Work a. Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the principal certifying authority for the development to which the work relates: (i) in the case of work to be done by a licensee under the Act: A. has been informed in writing of the licensee's name and contractor licence number, and B. is satisfied that the licensee has complied with the requirements of Part 6 of that Act, OR (ii) in the case of work to be done by any other person: A. has been informed in writing of the person's name and owner-builder permit, number, or B. has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the definition of owner-builder work in section 29 of the Act, and is given appropriate information and declarations under paragraphs (i) and (ii) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs. NOTE. The amount referred to in paragraph (ii) B is prescribed by regulations under the Home Building Act 1989. Currently the amount is $5,000. As regulations are amended from time to time, this amount may be subject to change.

b. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (C377)

Excavations and Backfilling a. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. b. All excavations associated with the erection or demolition of a building must be properly guarded or protected to prevent them from being dangerous to life or property. (C378)

Street number being affixed to building prior to occupation. (C322)

Retaining Walls and Drainage If the soil conditions require it: a. retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and b. adequate provision must be made for drainage. (C379)

Support for Neighbouring Buildings a. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made: (i) must preserve and protect the building from damage, and (ii) if necessary must underpin and support the building in an approved manner, and (iii) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

b. The owner of the adjoining allotment of land Is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

c. In this clause, allotment of land includes a public road and any other public space. (C380)

Your attention is directed to the need to seek advice of your obligations from the Work Cover Authority. (C331)

Protection of Public Spaces a. If the work involved in the erection or demolition of a building: (i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or (ii) involves the enclosure of a public place, a hoarding or fence must be erected between the work site and public place.

b. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

c. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

c. Any such hoarding, fence or awning is to be removed when the work has been completed. (C381)

Signs to be Erected on Building and Demolition Sites. (C382) a. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: (i) stating that unauthorised entry to the work site is prohibited, and (ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

b. Any such sign is to be removed when the work has been completed.

c. This clause does not apply to: (i) building work carried out inside an existing building, or (ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

Toilet Facilities a. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. b. Each toilet provided: (i) must be standard flushing toilet, and (ii) must be connected:

B. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

C. if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by Council.

c. The provision of toilet facilities in accordance with this clause must be completed before any work is commenced.

d. In this clause: (i) accredited sewage management facility means sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation. (ii) approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 19933. (iii) public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993. (iv) sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993. (C383)

Submissions at the Construction Certificate stage of the anticipated schedule of current and proposed fire safety measures to be implemented on the building, and such fire safety schedule shall specify the minimum standard of performance for each fire safety measure. (C371)

To ensure the safety of occupants of the building a "Fire Safety Certificate" which identifies the schedule of "Fire Safety Measures" that have been completed to satisfactory standard shall be provided to Council prior to the issue of an "Occupational Certificate" as required in Part 7B of the "Environmental Planning and Assessment Amendment Act 1997". (C387)

A Construction Certificate is required to be approved by either Council or an Accredited Certifier, prior to the commencement of any works on the site. (C165)

Visitor carparking being permanently available; not reallocated and clearly marked. (C14).

Trade materials , product and plant to be kept within the confines of the buildings at all times. (C30)

Where Council is the Principal Certifying Authority a surveyor certificate prepared by a registered Surveyor being submitted at the following stages of construction:

a. commencement of perimeter walls to ensure the wall to boundary setbacks are in accordance with the approved details:- (i) courses of brickwork (ii) engaged piers; (iii) structural support poles/columns of the building.

b. At ground level to ensure the finished floor levels are in accordance with the approved levels, prior to concrete slab being poured/flooring being laid.

c. At completion of the roof frame confirming the finished roof/ridge height is in accordance with levels indicated on the approved plans. (C323)

All car spaces being line marked in accordance with eth carparking layout provided on the approved plans. (C342)

The Construction Certificate not be issued until approval is provided from the Trade Waste Branch of Sydney Water for connection to the sewer. (C154)

Mechanical ventilation systems shall comply with the requirements as set out in AS53666 and the "Code of Practice for the Control of Legionnaire's Disease"- where applicable. (C249)

The external finish to the roof shall have a medium to dark range in order to minimise solar reflections to neighbouring properties. The metal roof shall not be of light colours such as off white, cream, silver or light grey colours. (C305)

Hours of construction being restricted to 7am to 5pm Monday to Friday, Saturday 7am to 1pm if audible at residential premises, excluding public holidays. No audible construction work to take place outside these hours. (C326)

Termite control measures being installed in accordance with AS 3660.1-1995 "Protection of Buildings from Subterranean Termites. Part 1:New Buildings." (C263)

A durable notice is to be permanently fixed to the building in a prominent location, such as the meter box or the like, indicating: The method of termite protection; date of installation; life expectancy of chemical barrier (if used); and installer's or manufacturer's recommendations for the scope and frequency of future inspections for termite activity. (C264)

The land is subject to a Tree Preservation Order and no trees other than those expressly granted permission as a result of this development consent, may be removed without the prior consent of Council. (C38)

Trees to be retained on-site shall be protected by the erection of suitability sturdy protective fencing prior to site works. The Construction certificate shall not be issued until adequate details are provided to verify that such fencing is to be suitably provided and maintained. (C40)

All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Warringah Council's Specification for Erosion and Sediment Control. A plan shall be submitted to the council or certified prior to issue of the Construction Certificate. (C41)

The payment of $1000 to account Reg 009 - *TF 036 prior to issue of a construction certificate as security to ensure that: a. all silt and sediment control measures are installed and maintained; b. there is no transmission of material, soil etc off the site and onto the public road and/or drainage systems; and c. maintenance of all facilities in accordance with Council's Specification for Erosion Control and Sediment Control. (C42)

Provision shall be made throughout the period of construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site. (C44)

The subdivision of Lots 21,22, 23 & 24 in DP 6238 in accordance with the plans in Condition 1 and the registration of the appropriate survey plan by Land & Property Information (Land Titles Office). (C45)

Provision of easements to drain water over the interallotment and Council drainage lines within the site. (C48)

Creation of a Positive Covenant of the title of the land requiring the proprietor of the land to maintain any water quality control and/or stormwater detention structures required by this Consent, in accordance with the standard requirements of Council. The Positive Covenant is to be prepared by the Applicant using terms acceptable to, and which are available from Warringah Council. (C51)

Restrictions as to User shall be created over on-site detention systems, restricting any alteration to the levels and/or any construction on the land. The terms of such restriction to be prepared to Warringah Council's standard requirements at the Applicant's expense. Warringah Council shall be nominated as a party to release, vary or modify such restriction. (C53)

Where any conditions of this Consent require dedication, consolidation easement or covenant, the number allocated by Land & Property Information (Land Titles Office)to the documents and/or plans referred to shall be advised in writing to Warringah Council, together with a letter of intent to proceed with the creation of the easement, positive covenant and restriction to user, prior to Occupation. A certified copy of the documents shall be provided to Warringah Council after final approval and registration has been effected by Land & Property Information (Land Titles Office). (C57)

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator; for details see the Sydney Water web site www.sydneywater.com.au\customer\urban\index or telephone 13 20 92.

Following application, a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions 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 linen plan/occupation of the development. (C58)

Provision of an on-site stormwater detention facility to control the rate of stormwater runoff from the site to be in accordance with the current version of Warringah Council's publication "On-Site Stormwater Detention - Technical Specification".(C68)

Buildings to be located clear of any pipeline, natural watercourse or Warringah Council easement. Footings of any building adjacent to an easement or pipeline to be a minimum of 300mm below the invert if the pipe and may rise by 300mm for each 300mm removed there from. (C71)

The minimum finished floor level shall be R.L 3.20m AHD. (C72)

Adequate provision shall be made to permit the flow of surface runoff and floodwaters from upstream properties throughout the subject site. (C73)

All new construction and services to a minimum level of 3.20*m AHD shall be designed to withstand flooding in accordance with the requirements specified in the New South Wales Floodplain Development Manual. Buoyancy, flowing water and debris, wave action, the flood compatibility of materials and waterproofing shall be addressed. (C76)

The minimum finished floor level/s shall be 500mm above the predicted 1 in 100 year water surface level for the site and public drainage system. (C77)

Construction of a complete footpath 1.2 metres wide to Warringah Council's standard specifications for engineering works on an approved alignment within the grass verge in Burchmore Road. (C83)

Restoration and maintenance to approved levels and safe condition of the footway reserve/s adjoining Burchmore Road to Warringah Council's standard specification for engineering works. (C85)

Hoardings shall be installed before any work is commenced on site including construction/demolition, and shall remain in place for the duration of the work. A separate application to be made to Council for this purpose and appropriate fee paid. No construction access is permitted other than at the approved vehicle crossing/s. All loading, unloading and storage materials for works within the site shall take place within the hoarding enclosure. (C87)

The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition. (C88)

At a glance

Court

Decision date

Before

Source

Judgment (266 paragraphs)

Parties

Cases Cited (5)

Cited By (7)