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[2009] NSWLEC 1024
appellant. The appeal was upheld. Development Application 77/208 for the Stage 1 Concept Plan was approved subject to Annexure A conditions ([46]).
The Court approved the concept plan, but adjusted the conditions. It required traffic-calming works and east-west pedestrian links because it accepted they were connected to the proposed development and its impacts. It did not require a free affordable-housing unit because the evidence did not show that the proposal displaced affordable housing, and it found no sufficient connection between the development and undergrounding remote powerlines. The Court also rejected extra vehicle access links.
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2,193 words · generated 01/10/2026
Mirvac Projects Pty Limited appealed Randwick City Council’s refusal of Development Application 77/208. The application sought approval for a Stage 1 Concept Plan for future residential development of 88–102 Moverly Road, South Coogee. Commissioner Brown heard the matter in November and December 2008 and January 2009, and delivered judgment on 5 February 2009 ([1], judgment heading).
1 cited instrument linked from this judgment.
The site was about 6.74 hectares. It contained former Department of Defence housing buildings and associated roads, walkways and car parks. It was bordered by housing, the Moverly Green residential complex and, along part of its southern edge, Latham Park ([2]–[3]). The concept proposed earthworks and infrastructure, subdivision into 10 super lots, a central open space area, and provision for 150 to 160 dwellings in three residential zones ([4]).
The council’s disputed requirements concerned traffic-calming facilities at the Moverly Road entrance, a two-bedroom affordable-housing unit to be provided without cost to council, and additional pedestrian and vehicle links to adjoining streets ([7]). Residents also raised matters including traffic, density, compatibility with neighbourhood character, privacy, overshadowing and vegetation ([9]).
The Court resolved the central disputes by distinguishing between conditions with a demonstrated relationship to the proposal and those without one. It required traffic channelisation and pedestrian links, rejected the affordable-housing requirement, and deleted a condition requiring underground powerlines on Moverly Street. It found no planning benefit in additional vehicle access points ([17], [23], [27], [41], [45]). The appeal was upheld and consent granted subject to the conditions in Annexure A ([46]).
The judgment’s clearest legal framework was the Newbury test for planning conditions. As set out at [22], a valid condition must be imposed for a planning purpose, fairly and reasonably relate to the proposed development, and be reasonable in the sense that a reasonable council might impose it. The Court relied particularly on the second requirement when deciding the affordable-housing and powerline issues.
For traffic, the Court compared the evidence of the applicant’s and council’s traffic experts. Both measured speeds near the site, though at different locations, times and frequencies, and both referred to AUSROADS 2005 ([11]). The Court preferred the council expert’s northbound speed readings because they had been collected over a week, compared with three and a half hours on two days for the applicant’s expert. It considered the location difference insufficient to explain the gap and said a cautious approach was appropriate ([13]).
The Court also focused on the practical sight distance. Although a southerly sight distance of about 195 m was agreed, the Court accepted evidence that kerbside parking, particularly near a school, could reduce it to around 70 m ([14]). It considered the estimated $40,000 cost of the two channelisation facilities not onerous in the context of the proposal and the expected speed-reduction benefit ([15]). The lack of an accident history from the site’s previous use did not, in its view, justify retaining the existing access arrangements given the AUSROADS requirements ([16]). It therefore required the measures, with approval of the plan before a construction certificate and completion before an occupation certificate ([17]; condition 27).
The affordable-housing condition failed on the evidence and statutory basis before the Court. The council relied on a local strategic action plan and clause 40A(5)(u) of LEP 1998, which referred to addressing housing mix and tenure, including affordable housing, “where appropriate” ([18]). The applicant argued that SEPP 70 did not identify Randwick as an area where a need for affordable housing had been identified, and that the LEP did not make the requirement appropriate in this case ([20]). The Court recorded agreement that clause 40A applied but that LEP 1998 gave no power to require affordable housing, even if need had been established ([21]). It then found no evidence that the redevelopment would displace affordable-housing occupants or that the existing buildings had been used for affordable housing. The condition therefore did not fairly and reasonably relate to the proposal ([23]).
The Court did not treat the general existence of local affordable-housing need as enough, on the evidence and provisions before it, to establish the necessary relationship between this development and the requested unit. It noted that a voluntary planning agreement could provide for affordable housing, but said the Court could not enforce that requirement against the applicant in the proceeding ([23]).
The access findings drew a distinction between vehicle and pedestrian connections. The Court accepted evidence against additional vehicle access: connections to Moverly Green could introduce traffic into a residential area with no through traffic, while another Moverly Road access would be close to the proposed one and near a school. The Court also found no evidence that extra vehicle access was needed to dilute traffic using the proposed entrance ([26]–[27]).
For pedestrians, the experts agreed that east and west links were needed. The Court considered them useful for reaching Moverly Road and the school to the east and the proposed Randwick Environmental Park to the west ([28]–[30]). Because it found the need was generated largely, if not solely, by the proposal, responsibility for acquiring and dedicating the links fell on the applicant ([30]).
The Court rejected a proposed alternative route through Latham Park. It considered that route inconsistent with the purpose of a western connection because it would place access at the very south of the site, increasing pedestrian travel distance for relevant residents; it also noted the absence of approval to use the reserve ([37]–[38]). It allowed some flexibility for the western route, but limited potential locations to lots adjoining Stage 2, including and south of 23 Argyle Crescent ([40]). Conditions 4A and 4B translated those findings into requirements for acquisition and approval before later stages, and construction before occupation certificates for dwellings ([41]; Annexure A).
Finally, the council sought undergrounding of overhead powerlines under condition 33, relying on a general council resolution. The Court accepted that the cables were remote from the development and did not cross its small access frontage. It therefore found no basis to impose the condition and deleted it ([43]–[45]).
The judgment does not purport to establish a new general test for conditions. It cites Newbury District Council v Secretary of State for the Environment [1981] AC 578 and sets out its three requirements at [22]. The decision’s legal contribution in this judgment is its application of that test to particular proposed conditions, on the evidence and planning controls before the Court.
Before the decision, the council had refused the concept plan and sought, among other things, an affordable-housing unit, traffic-calming measures, and additional access requirements. After the decision, the consent included channelisation works and pedestrian links, but not the affordable-housing unit or undergrounding of the remote overhead cables ([17], [23], [45]–[46]).
The Court’s treatment of affordable housing should be read within its stated record. It noted the relevant LEP provision, the parties’ agreement about the absence of an enabling power, and the lack of evidence that existing residents were in affordable housing or would be displaced ([18]–[23]). The judgment does not establish that affordable-housing conditions can never be imposed. Rather, its conclusion is that this condition could not be justified on the identified provisions and evidence in this case.
Similarly, the decision does not say that off-site works are always invalid. It found that the proposed powerline works lacked a fair and reasonable relationship because of the physical remoteness of the cables from this development ([44]–[45]). In contrast, the pedestrian accessways were required because the Court found that the development itself generated their need ([30]).
The judgment text supplied here contains no account of subsequent cases or later treatment of this decision. Its later precedential status therefore cannot be established from this source alone.
At [22], the Court states the Newbury test: a condition must serve a planning purpose, fairly and reasonably relate to the development, and be reasonable. In plain English, a condition needs a proper planning reason and a real connection to the proposal; it cannot simply be imposed because council would prefer the work or contribution.
At [23], the Court explains why the affordable-housing condition failed. There was no identified legal power to require it, and no evidence that the redevelopment would remove existing affordable housing or displace people living in it. In plain English, a general need for affordable housing was not enough, on this record, to connect the requested unit to this proposal.
At [30], the Court says the need for pedestrian access was generated by the development and therefore fell to the applicant to provide, including acquisition and dedication. In plain English, the Court assigned responsibility to the developer because it considered the access need to arise from the project itself.
At [38], the Court rejects the Latham Park alternative because a link at the southern end would not minimise pedestrian travel time and distance. In plain English, the Court assessed whether the proposed route would serve the purpose of the required western connection, rather than treating any route westward as sufficient.
At [44]–[45], the Court deletes condition 33 because the cables were remote and did not traverse the access frontage. In plain English, the Court found the powerline work too disconnected from the development to be required as a condition here.
The final orders are stated at [46]: the appeal was upheld and the development application approved subject to conditions. In plain English, Mirvac obtained concept-plan consent, but subject to the requirements in Annexure A.
The decision is most directly relevant to disputes about whether a particular development condition has a sufficient planning connection to the development. The Court’s approach is useful where parties dispute whether a condition is justified by the development’s effects or needs, rather than by a broader policy objective alone.
For a proposed contribution or affordable-housing requirement, the points treated as material here included the availability of an enabling provision and evidence connecting the development to the claimed need. The judgment records that the site’s existing use as affordable housing and displacement of affordable-housing occupants were not established ([21]–[23]). Different statutory provisions or evidence could produce a different analysis; the decision does not resolve those other circumstances.
For access infrastructure, the case concerns a development said to generate pedestrian demand for links to surrounding destinations. The Court found a direct planning connection and imposed acquisition, approval, construction and timing requirements ([30], [41]; conditions 4A and 4B). It also illustrates that the location and utility of an access route mattered: the Court rejected a southern alternative it considered inconsistent with minimising travel distance ([38]–[40]).
For traffic conditions, the decision involved recorded speeds above the posted limit, sight-distance evidence, nearby kerbside parking and a school, plus a cost estimate for the measures ([11]–[16]). The Court’s conclusion was tied to that evidence and the proposed access arrangement. It should not be read as a universal requirement for channelisation at residential development entrances.
The powerline issue provides a fact-specific example of the Court rejecting an off-site condition where the infrastructure was physically remote and did not cross the development frontage ([44]–[45]).
The supplied judgment contains no discussion of later decisions applying, distinguishing, following or otherwise treating Mirvac Projects v Randwick City Council. It therefore does not support a claim about the case’s subsequent treatment.
The judgment itself cites and applies Newbury District Council v Secretary of State for the Environment [1981] AC 578 at [22]–[23]. No other case is identified in the judgment’s “Cases Cited” heading. Any assessment of later judicial treatment would require sources beyond the judgment text provided here.
The judgment does not determine how the same affordable-housing issue would be resolved under a different planning instrument or where a specific enabling power exists. It records the parties’ agreement that LEP 1998 did not empower the council to require the unit, and finds that evidence of displacement or existing affordable housing was absent ([21]–[23]).
The decision also does not define a general threshold for when a development “generates” a need for pedestrian access. It makes that finding on the proposal and evidence in this case ([30]). Nor does it decide how responsibility might be apportioned where a required accessway materially benefits existing residents as well as future residents. It noted that others might use the links, but found the need was generated largely, if not solely, by the proposal ([30]).
The judgment does not establish a general distance or physical-proximity test for off-site conditions. Its finding about the powerlines was based on the cables’ remoteness and their not traversing the site’s access frontage ([44]–[45]). It also does not state how a different traffic evidence record, including different speed readings, visibility constraints or accident history, would affect a traffic condition.
Finally, the judgment text provides no later authorities or subsequent procedural history. The decision’s later status and application in other cases remain outside what can be confirmed from this source.
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The applicant shall note that all external work, carried out on Council property, shall be in accordance with Council's Policy for "Vehicular Access and Road and Drainage Works". An application for the cost of the Council civil works is to be submitted to Council at the completion of the internal building works. An application fee shall be payable to Council for the quotation of the required works. The applicant may elect to use his contractor for the required works, subject to Council approval, however a design and supervision fee based on the lowest quotation from Council's nominated contractor will be required to be paid prior to the commencement of any works.
All new walls adjacent to vehicular crossings must be lowered to a height of 600mm above the internal driveway level for a distance of 1.50m within the site or splayed 1.5 metre by 1.5 metre to provide satisfactory sight lines. Details are to be submitted to the Certifying Authority prior to the release of the relevant construction certificate showing compliance with this condition.
a. The number of carspaces to be provided within the development site shall, as a minimum, be in general accordance with the relevant sections of Council's Development Control Plan - Parking. Details of parking provision calculations and proposed allocation of spaces shall be provided with the Stage 2 Development Application.
b. The design of all dwellings adjacent to the boundary of the site shall maintain appropriate sunlight access to adjoining properties. In this regard, the design of those dwellings shall comply with Preferred Solution "S2" at page 25 of Council's DCP - Dwelling Houses and Attached Dual Occupancies as amended on 26 November 2002 and effective from 20 December 2002.
Prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works the applicant shall submit for approval and have approved by Council's Traffic Engineer a detailed construction traffic management plan. The plan shall demonstrate how construction and delivery vehicles will access the development site during the demolition and construction phase of the development.
All traffic associated with the subject development shall comply with the terms of the approved construction traffic management plan.
Prior to the issuing of a construction Certificate for any Stage 1 works, the applicant is to provide a Plan of Management for the existing retaining wall along the eastern boundary of the subject site. Prior to the issuing of a subdivision certificate for Stage 4, the following information shall be submitted to and approved by Council's Director City Planning: o Measures and procedures to be used to maintain and repair the wall along its full length within Stage 4 and Stage 5 (including access to the wall for machinery and repair vehicles) o Responsibilities for the maintenance and repair of the wall (including how it is intended for private owners of future allotments abutting this wall to be made aware of their responsibilities in relation to the maintenance and repair of this wall - this may include appropriate covenants on individual allotment titles or on the overall community title whichever is applicable)
The following conditions are applied to provide adequate provisions for future civil works in the road reserve:
a. The design alignment level (concrete/paved/tiled level) at the Moverly Road property boundary for driveways, internal roads, access ramps and pathways or the like must be obtained in writing from Council's Development Engineer Coordinator prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works. The alignment level to be issued shall be determined following design of the required traffic management device in Moverly Road.
b. The applicant must design and construct channelisation traffic facilities on Moverly Road at its intersection with Macleay Street and Byrne Avenue. The traffic facilities shall achieve a reduction of vehicle speeds by narrowing the carriageway and deflecting the traffic (if design permits). The channelisation is to be achieved with concrete traffic islands, linemarking and signs but is to minimise the loss of parking. The traffic facility shall be designed to accommodate all existing vehicle manoeuvres. The design shall be in accordance with relevant traffic facility design guidelines and Randwick City Council standards. The applicant must contact Randwick Council's Manager Integrated Transport prior to undertaking any investigation / design work to obtain Randwick Council's requirements for the traffic facilities. Design plans for the traffic facilities must be submitted to Randwick Council for approval, and be approved prior to the issuing of a Construction Certificate for any Stage 1 works and must be constructed prior to the issuing of an occupation certificate for any Stage 2 application. The developer shall be responsible for all public utility adjustment / relocation works and costs, necessitated by the above work. These works shall be undertaken as required by the relevant public utility authorities and / or their agents.
The above alignment levels and the site inspection by Council's Development Engineer have been issued at a prescribed fee of $880 calculated at $44.00 (inclusive of GST) per metre of site frontage to Moverly Road. This amount is to be paid prior to a construction certificate being issued for the development.
The following conditions are applied to provide adequate consideration for Service authority assets:
A public utility impact assessment must be carried out on all public utility services on the site, roadway, nature strip, footpath, public reserve or any public areas associated with and/or adjacent to the development/building works and include relevant information from public utility authorities and exploratory trenching or pot-holing, if necessary, to determine the position and level of service.
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.
Any electricity substation required for the site as a consequence of this development shall be located within the site and shall be screened from view. The proposed location and elevation shall be shown on all detailed landscape drawings and specifications. The applicant must liaise with Energy Australia prior to lodging the construction certificate to determine whether or not an electricity substation is required for the development.
All public utility / telecommunication services within the site must be located underground. All street lighting is to be provided on Energy Australia approved light poles and connected to the Energy Australia street lighting system.
A Section 73 Compliance Certificate under the Sydney water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then the "e-developer" icon or telephone 13 20 92. Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges 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 Notice must be issued to the Principal Certifying Authority prior to the construction certificate being issued.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the plan of subdivision.
34A. All Energy Australia Service Turrets shall be recessed wholly into the property boundaries/behind the prevailing property alignment, so that the turrets do not cause a trip hazard and the turrets do not hinder or obstruct the movement, access and enjoyment of the road reserve. The applicant is advised that should Energy Australia require the turrets to be located within the road reserve the applicant will be required to dedicate land to Council, the dimensions of such dedication/s shall be as required to satisfy all of Energy Australia's requirements.
The following conditions are applied to provide adequate provisions for drainage and associated infrastructure:
Any future development application and any Construction Certificate for Stage 1 works for the subject development site must demonstrate compliance with the following to council's satisfaction: o All allotments must be suitably protected from stormwater inundation for up to the 1 in 100 year ARI levels. o All allotments adjacent to secondary overland flow paths (i.e. flowpaths other than roads) must be a minimum of 300 millimetres above calculated 1in 100 year ARI water levels. o The internal pipe system must be designed to cater for the critical 1 in 20 year ARI storm event with overland flows contained within the roadways or other suitable flowpaths for up to the 1in 100 year storm event. The applicant must fully demonstrate compliance with this requirement and make specific reference to the operation of the bioretention swales during major storm events. o The velocity depth restriction of VDs < 0.4 for a 1 in 100 year ARI storm should be applied along the overland flow paths.
Any future development application for the subject site must provide details showing indicative pipe sizes, pit locations, pipe locations and any associated drainage easements, interallotment drainage pipelines and associated interallotment drainage easements. Plans must identify the road network, pipe/pit network, catchments draining to the various pipes/drainage pits, location of potential overland flow paths, levels of properties adjacent to overland flow paths and level information on the roads in general.
Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must either: a. undertake a detailed analysis of the existing flowpath regime through/surrounding and downstream of the development site and compare that with proposed flowpaths post development. The applicant must provide sufficient documentation/evidence to Council to indicate that the proposed development will not increase the depth of overland flow in areas outside the development site and that no property downstream of the development site will be adversely affected as a result of the proposed development for storm events up to the 1 in 100 year ARI event. The applicant must liaise with Council's Development Engineer Coordinator regarding Council's requirements for the detailed analysis prior to undertaking the analysis, or
b. use an onsite stormwater detention system located within the development site, including proposed road reserves, (as referenced in Drainage Concept Plan Drawing No. CDA 9212 Revision B,) subject to: 1. full hydraulic, construction and maintenance details being submitted to Council for approval, and being approved, prior to lodgement of a Stage 2 development application and prior to lodgement of any Construction Certificate for Stage 1 works, and 2. the capacity of the existing downstream stormwater pipe through 23 Argyle Crescent not being exceeded for all stormwater events up to the 100 year ARI event.
Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must either: a. undertake a detailed analysis of the existing site stormwater drainage system and the proposed stormwater drainage system, (piped and overland flow). The applicant must provide sufficient documentation/evidence to Council that the proposed site stormwater drainage system will not increase the depth of overland flow in areas outside the development site, will not adversely impact on Council's stormwater drainage infrastructure and that no property downstream of the development site will be adversely affected as a result of the proposed development for storm events up to the 1 in 100 year ARI event. The applicant must liaise with Council's Development Engineer Coordinator regarding Council's requirements for the detailed analysis prior to undertaking the analysis, or
b. use an onsite stormwater detention system located within the development site, including proposed road reserves, (as referenced in Drainage Concept Plan Drawing No. CDA 9212 Revision B,) subject to: 1. full hydraulic, construction and maintenance details being submitted to Council for approval, and being approved, prior to lodgement of a Stage 2 development application and prior to lodgement of any Construction Certificate for Stage 1 works, and
Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must provide to Council full details of any proposed stormwater infrastructure to be constructed external to the site and within land not owned by either the applicant or by Council. The applicant must either demonstrate that in principle support for the infrastructure has been provided by the relevant landholder or provide sufficient documentation that construction of the infrastructure and creation of suitable associated easements can be legally enforced. Should the applicant be unable to obtain the necessary agreements or demonstrate to Council that creation of the easement and construction of the infrastructure can be legally enforced then an alternate stormwater drainage scheme must be developed. The applicant is advised to liaise with Council's Development Engineer Coordinator regarding these requirements.
Prior to the issuing of a Construction Certificate for any Stage 1 works and prior to the issuing of development consent for any Stage 2 application the applicant shall submit to the Principal Certifying Authority for approval, and have approved, a detailed stormwater drainage plan. The applicant must liaise with Council, prior to preparation of the drainage plan, to obtain Council's requirements for drainage works within, and adjacent to the development site.
Details shall include, but not be limited to: o A detailed drainage study/analysis identifying the catchment areas upstream of the site and the stormwater flows generated from these catchments, together with the catchment areas within the site and the flows generated from same. The study/analysis shall identify the overland flow rates and depths of flow from storm events up to the 1 in 100 year annual recurrence interval within the streets of the subdivision. Information submitted shall be generally in accordance with the flood study requirements of the latest draft "FLOODPLAIN MANAGEMENT MANUAL" (ISBN 07313 0370 9). o Confirmation of the existing and proposed finished surface levels within the development site. Documentation of the change in surface levels is required together with volumes of material imported or exported from the site. o Gross pollutant trap details (GPT). Note that any proposed GPT shall be designed in accordance Council's specification and guidelines for determining Gross Pollutant Trap/s. The GPT's are to be located within the road carriageway. o Stormwater drainage plans, pipeline longitudinal sections and calculations in general accordance with the recommendations of the Floodplain Management Manual" and "Australian Rainfall and Runoff, 1997 Edition). o Full design and "for construction" details of any onsite stormwater detention system. o Typical cross sections for all roads, laneways, private laneways/right of carriageways.
The calculations, plans, longitudinal sections and details for the roads and stormwater drainage referenced above shall include the following information: a) A detailed drainage design at a scale of 1:200 and a catchment area plan at a scale of 1:1000 or as considered acceptable by the Certifying Authority, and drainage calculations prepared in accordance with the Institution of Engineers publication, Australian Rainfall and Run-off, 1987 edition.
b) A layout of the proposed drainage system including pipe sizes, type, grade, length, invert levels, etc., dimensions and types of all drainage pipes and the connection into Council's stormwater system.
Note: Generally all proposed stormwater drainage pipelines shall be capable of discharging a minimum 1 in 20 year storm flow.
c) Proposed finished surface levels and grades of roads, parks, internal driveways and access aisles, which are to be related to Council's design alignment levels.
d) Details of all stormwater overland flowpaths, (volume, depth, width and safety factor).
e) The details of any special features that will affect the drainage design eg. the nature of the soil in the site and/or the presence of rock etc.
f) Detailed design and "for construction" specification of any proposed onsite stormwater detention system
g) A drainage plan and longitudinal section with all utility services accurately plotted for this stormwater pipeline must be provided. It should be noted that notwithstanding the calculations, the minimum pipe diameter acceptable within Council's street system and/or easement is 375mm.
h) All public utility services, where they are to be laid parallel to the Council stormwater pipeline, shall be located a minimum of 1.5 metres from the centreline of the stormwater pipeline.
Any flood study / hydraulic modelling to be submitted with future development applications for this site should be undertaken using "DRAINS" Urban Drainage Simulation Model (and HECRAS for determining flow depths). Alternative flood modelling programs may be used, however, the applicant will be required to meet the full cost for an independent hydraulic consultant to review the model as Council does not have the computer software to run alternative flood modelling programs.
The proposed internal roadways, drainage easements and overland flow routes shall be designed to drain the 1in 100 year storm event and to consider personal and structure safety and the hazard factor, (product of velocity and depth of flow) This safety factor shall not exceed a value of 0.4 at any location. (i.e. VD< 0.4).
All interallotment stormwater drainage lines must be designed, as a minimum, to accommodate stormwater flows generated by the 1 in 20 year storm event. Suitable width easements are to be created over the line of any interallotment drainage system in conjunction with any plan of subdivision for the development site, (the pipeline is to be centrally located within the easement). In the situation where no legal overland flow route exists for flows generated by storm events greater than the 1in 20 year storm event the interallotment drainage line and the required drainage easement must be capable of containing within the easement and discharging storm water flows generated by storm events up to the 1in 100 year storm event. The minimum easement width shall be 1.0 metre for light-weight pipes up to and including 300mm in diameter. Easement widths for drainage lines that are not light-weight, (e.g. concrete), and larger than 300mm in diameter should be sufficient to enable maintenance equipment to access the pipeline. 45. Council requires that all new stormwater pipelines be of sufficient capacity to provide for a storm recurrence interval of 20 years with an overland floodway that is to be capable of containing a 1in 100 year flood within the boundaries of the drainage, landscaping and site works over such pipes and/or easement must ensure that the natural floodway or water course is not blocked or altered in such a way to flood private properties. No buildings or structures must be located within the easement.
Suitable width drainage easements must be created over the line of any existing/ new / relocated or upgraded stormwater pipelines within the site, under the control of Council. Minimum easement widths are as follows: 1. Pipeline diameter is 1,200mm or less -easement width required = 3.0m
The following conditions are applied to provide adequate provisions for waste management:
The applicant must provide swept path details for a 9.5metre garbage truck, (10.5 metre turning radius) with any future development application for the provision of civil infrastructure for this site. The applicant shall note that satisfactory collection of domestic waste must be considered when designing the road network and or travel lane/footpath/parking lane configuration of the road network.
The following conditions are applied to provide adequate provisions for landscaping and to maintain reasonable levels of environmental amenity:
Street tree selection and planting locations must be to Council's satisfaction. The applicant must contact Council's Landscape Development Officer prior to lodgement of any future development application for the site to obtain Council's requirements for street tree selection and planting locations.
Any future development application for the provision of civil infrastructure within the site must provide irrigation details for the proposed landscape areas. Typically Council requires an automatic irrigation system shall be installed throughout all the landscaped areas. Such system shall provide full coverage to all the landscaped areas with no overspray onto driveways and pathways. The system shall comply with all Sydney Water requirements, and relevant Australian Standards. Note: landscaped areas must contain a predominance of species that require minimal watering once established or species with water needs that match rainfall and drainage conditions.
Any future development application for the provision of civil infrastructure and any Construction Certificate for Stage 1 works must include a detailed Public Domain Plan. The subject plan shall be submitted to Council for approval and must demonstrate the strategies that are proposed for the urban design of the public domain (including any open space reserves) and the provision of good pedestrian access, recreational diversity and environmental sustainability. The strategies in relation to Stage 1 will include: o footpath strategy, Further to this, the Public Domain Plan for Stage 1 shall also include details of individual treatments throughout the site. These treatments shall be consistent with Council's management requirements. The details shall be a detailed design showing plans elevations, sections, the materials and finishes for the following elements, (where relevant): o Footpath treatments o Street lighting o Street signs o Kerb ramps o Pavements o Retaining walls and balustrades within road reserves Any future development application for the provision of civil infrastructure and any Construction Certificate for Stage 2 works must include a detailed Public Domain Plan. The subject plan shall be submitted to Council for approval and must demonstrate the strategies that are proposed for the urban design of the public domain (including any open space reserves) and the provision of good pedestrian access, recreational diversity and environmental sustainability. The strategies in relation to Stage 2 will include: o tree planting strategy, o water management strategies o Park planning strategy
Further to this, the Public Domain Plan for Stage 2 shall also include details of individual treatments throughout the site. These treatments shall be consistent with Council's management requirements. The details shall be a detailed design showing plans elevations, sections, the materials and finishes for the following elements, (where relevant): o Street tree planting o Street furniture o Lighting o Automatic irrigation systems o Water features o Bicycle facilites o Bus shelters o Retaining walls and balustrades within allotments and proposed open space
Approval is granted for removal of those trees identified for removal in the Tree Survey prepared by Arborcraft as submitted with the development application. Any tree identified for retention in the Tree Survey must be fully protected during the course of construction works. The applicant must ensure the long term health and stability of all trees located on properties adjoining the development site.
A site Arborist shall be engaged to provide a written report, containing Tree Protection Zones and specific Tree Management Plans for those trees identified for retention as part of the proposal. The report will need to consider direct and indirect impacts arising from the proposed works, such as excavations from the basement carpark level, site machinery movements and the need for pruning for clearances etc.
The following conditions are applied to ensure that the development satisfies relevant standards of construction, and to maintain adequate levels of health, safety and amenity during demolition, excavation and construction:
a. All demolition work is to be carried out in accordance with the conditions of consent set out in the Notice of Determination for DA/439/2008 dated 1 August 2008. b. All demolition work is to be carried out in accordance with the provisions of AS2601- The Demolition of Structures.
The demolition of buildings and the removal, storage, handling and disposal of building materials must be carried out in accordance with the relevant requirements of WorkCover NSW, the NSW Department of Environment & Conservation (formerly the Environment Protection Authority) and Randwick City Council policies and conditions, including:
Occupational Health and Safety Act 2000 Occupational Health and Safety (Hazardous Substances) Regulation 2001 Occupational Health and Safety (Asbestos Removal Work) Regulation 2001 WorkCover NSW Code of Practice for the Safe Removal of Asbestos o Australian Standard 2601 (2001) - Demolition of Structures o The Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Waste) Regulation 1996. o Relevant Department of Environment & Conservation (DEC) / Environment Protection Authority (EPA) and WorkCover NSW Guidelines. o Randwick City Council 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.
A Demolition Work Plan must be prepared for the development in accordance with Australian Standard AS2601-2001, Demolition of Structures. The Work Plan must include the following information (as applicable): o The name, address, contact details and licence number of the Demolisher /Asbestos Removal Contractor o Details of hazardous materials (including asbestos) o Method/s of demolition (including removal of any asbestos) o Measures and processes to be implemented to ensure the health & safety of workers and community o Measures to be implemented to minimise any airborne dust and asbestos o Methods and location of disposal of any hazardous materials o Other relevant details, measures and requirements to be implemented o Date the demolition works will commence
The Demolition Work Plan must be submitted to Council and the Principal Certifying Authority (PCA) if the Council is not the PCA, not less than two (2) working days before commencing any demolition works involving asbestos products or materials. A copy of the Demolition Work Plan must also be maintained on site and be made available to Council officers upon request.
Note it is the responsibility of the persons undertaking demolition work to obtain the relevant WorkCover licences and permits.
Any building/demolition works involving asbestos products are to be carried out in accordance with WorkCover New South Wales requirements, guidelines and codes of practice.
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: preserve and protect the building /s on the adjoining land from damage; and effectively support the excavation and building; and 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.
Notes 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). (Hours of operation - building activities/construction noise for class 1 & 10 buildings , inc alterations & additions to /or new single dwellings and associated structures)
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 between 8.00am to 5.00pm on Saturdays and all building activities are strictly prohibited on Sundays and Public Holidays.
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.
(Hours of operation - building activities/construction noise for class 2 to 9 buildings and dual occupancies inc. multi-unit housing, apartments, townhouses and commercial or mixed-use developments)
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.
(Detailed noise and vibration report - Major class 2 - 9 developments)
A report prepared by a suitably qualified and experienced consultant in acoustics/vibration shall be submitted to the Principal Certifying Authority (PCA) and a copy is to be provided to Council upon commencement of works, certifying that noise and vibration emissions from the construction of the development satisfies the relevant provisions of the Protection of the Environment Operations Act 1997, Councils conditions of consent and relevant Standards relating to noise and vibration. In support of the above, it is necessary to submit all relevant readings and calculations made.
Any recommendations and requirements contained in the report are to be implemented accordingly and should noise and vibration emissions not comply with the terms and conditions of consent, work must cease forthwith and is not to recommence until details of compliance are submitted to the PCA and Council.
Temporary toilet facilities are to be provided, at or in the vicinity of the work site throughout the course of demolition and construction, to the satisfaction of WorkCover NSW and the toilet facilities must be connected to a public sewer or other sewage management facility approved by Council.
Public safety and convenience must be maintained at all times during demolition, excavation and construction works.
The roadway, footpath and nature strip must be maintained in a good, safe condition and free from any obstructions, trip hazards, 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.
A Road / Asset Opening Permit must be obtained from Council prior to carrying out any 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. 67. Building materials, sand, soil, waste materials, construction equipment or other materials or articles 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.
location and construction of protective fencing / hoardings to the perimeter of the site; location of site storage areas/sheds/equipment; location of building materials for construction; provisions for public safety; dust control measures; site access location and construction details of methods of disposal of demolition materials; protective measures for tree preservation; provisions for temporary sanitary facilities; location and size of waste containers/bulk bins; details of proposed sediment and erosion control measures; construction noise and vibration management; construction traffic management details.
The site management measures are to be implemented prior to the commencement of any site works and be maintained throughout the works, to maintain reasonable levels of public health, safety and amenity to the satisfaction of Council. A copy of the approved Construction Site Management Plan must be maintained on site and be made available to Council officers upon request.
Details of proposed sediment and erosion control measures shall include; a site plan; indicating the slope of land, access points & access control measures, location and type of sediment & erosion controls, location of existing vegetation to be retained, location of material stockpiles and storage areas, location of building operations and equipment, methods of sediment control, details of drainage systems and details of existing and proposed vegetation.
A temporary timber, asphalt or concrete crossing is to be provided to the site entrance across the kerb and footway area, with splayed edges, to the satisfaction of Council, unless access is via an existing concrete crossover.
The owner/builder is required to hold Public Liability Insurance, with a minimum liability of $5 million and a copy of the Insurance cover is to be provided to Council.
Any part of Council's nature strip which is damaged as a result of the work must be back-filled, top-soiled and re-turfed with kikuyu turf prior to occupation or finalisation of the development, to Council's satisfaction.
Public safety must be maintained at all times and public access to the site and building works, materials and equipment on the site is to be restricted, when work is not in progress or the site is unoccupied. 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. Temporary site fences 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. The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
If it is proposed to locate any site fencing, hoardings 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.
If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or the building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. If necessary, an awning is to be erected sufficiently to prevent any substance from, or in connection with, the work from falling into the public place or adjoining premises.
The public place adjacent to the work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place and any such hoarding, fence or awning is to be removed upon completion of the work.
The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
If it is proposed to locate any site fencing, hoardings 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.
A 'B Class' overhead type hoarding is required is be provided to protect the public, located adjacent to the development, prior to the commencement of any works on the site which comprise:-
any works or hoisting of materials over a public footway or adjoining premises, or any building or demolition works on buildings which are over 7.5m in height and located within 3.6 metres of the street alignment. The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
If it is proposed to locate any site fencing, hoardings 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.
A local approval application must be submitted to and be approved by Council's Building Certification Services section prior to commencing any of the following activities on a 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.
The following conditions are applied to maintain reasonable levels of public health, amenity and safety:
The applicant is to engage a NSW Department of Environment and Conservation (DEC) (formerly EPA) Accredited Site Auditor. The Site Auditor is to assess the suitability of the site for its intended development and use. A Site Audit Statement and Summary Site Audit Report is to be submitted to Council, prior to a construction certificate [or subdivision certificate] being issued, which confirms that the land has been remediated and the site is suitable for the intended development and use and satisfies the relevant criteria in the National Environment Protection (Assessment of Site Contamination) Measure 1999. Any requirements contained within an Environmental Management Plan (EMP) which forms part of the Site Audit Statement and Site Audit Report, form part of this consent and Council must be consulted with prior to the development of the EMP.
The Site Audit Statement must, where no guideline made or approved under the NSW Contaminated Land Management Act is available (as with asbestos), clearly state the source of the standard adopted in determining the suitability of the land for the intended development and use and must also demonstrate its suitability to Council. In relation to any asbestos contamination, a comprehensive remediation strategy and remedial action plan must be developed, to the satisfaction of the Site Auditor and NSW Department of Health or other suitably qualified and experienced specialist to the satisfaction of the Site Auditor.
The remediation strategy and remedial action plan must demonstrate that the land will be remediated in accordance with relevant guidelines (if any) and to a level or standard where no unacceptable health risk remains from asbestos exposure, which shall be verified upon completion of the remediation works to the satisfaction of the Site Auditor.
A specific contact number is to be made available for enquiries and complaints (including an after-hours emergency contract number) in relation to the proposed works and a complaints register is to be maintained to record all such enquiries, complaints and actions taken in response to same, which is to be made available to Council officers upon request. Any hazardous and/or intractable wastes arising from any bulk earthworks and infrastructure works are to be managed and disposed of in accordance with the requirements of WorkCover NSW and the Department of Environment and Climate Change (formerly EPA), including the provisions of: o New South Wales Occupational Health and Safety Act, 2000 o The Occupational Health and Safety (Hazardous Substances) Regulation 2001 o The Occupational Health and Safety (Asbestos Removal Work) Regulation 2001 o Protection Of the Environment Operations Act 1997 (NSW) o Environment Protection Authority's Environmental Guidelines; Assessment, Classification and Management of Liquid and Non Liquid Wastes (1999) o Randwick City Council's Asbestos Policy
Any fill that is to be imported to the site is to be monitored, classified and documented by a suitably qualified Environmental Consultant. Only 'Virgin Excavated Natural Material' (VENM) is to be imported to the site, as defined within the NSW EPA 'Environmental Guidelines; Assessment, Classification and management of Liquid and Non-Liquid Wastes. 1999'. The following conditions are applied to satisfy the relevant pollution control criteria and to maintain reasonable levels of health, safety and amenity to the locality:
The use and operation of the premises shall not give rise to an environmental health or public nuisance.
There are to be no emissions or discharges from the premises which give rise to a public nuisance or result in an offence under the Protection of the Environment Operations Act 1997 and Regulations.
Prior to the issue of a subdivision certificate in respect of the torrens title subdivision of the subject land into 10 super lots under the Stage 1 development consent: + it must be demonstrated to Council that the conditions of this development consent for Stage 1 have been satisfied and their compliance verified by the Principal Certifying Authority; + it must be demonstrated to Council that suitable rights of carriageway, easements for services, support and stormwater lines, as required will be created upon the registration of the plan of subdivision; and + details of critical stage inspections carried out by the Principal Certifying Authority, together with any other certification relied upon must be provided to Council. Advisory Conditions
The applicant is to advise Council in writing and/or by the provision of photographs of any signs of existing damage to the Council roadway, footway, or verge prior to the commencement of any building/demolition works.
G T Brown
Commissioner of the Court- 1 -
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.
Mirvac Projects
Randwick City Council
CITATION : Mirvac Projects v Randwick City Council [2009] NSWLEC 1024
CASES CITED: Newbury District Council v Secretary of State for the Environment [1981] AC 578
The appeal was upheld. Development Application 77/208 for the Stage 1 Concept Plan was approved subject to Annexure A conditions ([46]).