Rasko Holdings Limited v Burwood Council

Rasko Holdings Limited v Burwood Council - [2005] NSWLEC 333 - NSWLEC 1986 case summary — Zoe

The garbage bay walls are not to exceed the existing height of the front fence masonry piers. The proposed pitched tile roof shall be deleted. 8. All service loading and unloading deliveries are to take place within the property. 9. A detailed landscape plan prepared in accordance with Council's Landscaping Code, by an Accredited Certifier, qualified landscape architect or practising landscape consultant and submitted to Council for consideration. The plan shall indicate all existing trees on the site and those to be removed. The approved landscape plan or evidence of its approval is to be submitted to the Principal Certifying Authority, prior to the issuing of a Construction Certificate. 10. The landscaping of the site being carried out in accordance with the approved landscape plan prior to the issuing of an Occupation Certificate. The landscaping is to be maintained for a minimum period of two (2) years from the date of the Occupation Certificate. 11. Any mature trees required to be removed from the site are to be replaced with the equivalent number of super advanced trees of a species suitable to Council prior to the issuing of an Occupation Certificate. 12. Landscaping and planter boxes are to have indigenous/mature plants to reduce water usage. 13. All works are to be located within the site boundaries. 14. The kitchen and basement exhaust systems are to be an integral part of the building and not located at the site boundary. Exhaust ducts and mechanical equipment are not to be visible from Jersey Road. 15. Installation of water saving appliances and fittings - dual flushing toilets, shower heads and taps. 16. Installation of energy saving appliances for the hot water systems (solar or heat pump systems) refrigeration, heating and cooling systems, lighting, cooking, dishwasher, clothes washing and drying. 17. The roof/ceiling is to be insulated to reduce energy usage. 18. Install skylights for natural lighting to the toilets, bathrooms, stairway and kitchen, to reduce electrical energy usage. 19. Provision of a stormwater harvesting and recycling system for landscape watering and compliance with Basix requirements. The system is to be identified in the Construction Certificate plans. 20. A Section 73 Compliance Certificate under the Sydney Water Act, 1994 must be obtained. Application must be made through an authorized Sydney Water Servicing Coordinator (for details see e-Developer at www.sydneywater.com.au or telephone 13-20-92). The Section 73 Certificate must be submitted to the Principal Certifying Authority (PCA) prior to the release of any linen plan of subdivision and/or Occupation Certificate of the development.

[6]

b. Name, address and contact phone number of the building owner. 3. An insectocutor or similar non-chemical device is to be installed for fly and insect control. 4. The fitout of the kitchen is to be in accordance with Australian Standard AS 4674-2004 "Design, construction and fit out of food premises" the Food Safety Standards. 5. A change-room with adequate clothes space facilities for employees is to be provided to the satisfaction of the Council. 6. Drop-in panel removable ceilings are not permitted. Ceilings are to be constructed of a rigid smooth faced, non absorbent material and could include plasterboard and fibrous cement or other approved material. They are to be painted with a washable gloss paint of a light colour. The intersection of the walls and ceiling is to be tight jointed, sealed and dustproof. 7. Floors are to be constructed of materials which are impervious, non-slip, non-abrasive, resistant to lactic acid and fatty acids, cement render over concrete, quarry tiles, magnesite or other approved material. The floor is to be finished to a smooth even surface, graded and drained. The intersections of the floors with walls and exposed plinths are to be coved. 8. Floor wastes drained to the sewer are to be installed in the food preparation and the wet areas. 9. Walls are to be of solid construction, finished with glazed tiles, stainless steel or laminated plastic adhered directly to the wall to a height of 2 metres above floor level. Walls where not tiled are to be cement rendered, set with plaster and steel trowelled to a smooth even surface, painted with a washable gloss paint of a light colour. 10. Benches, draining boards, table-tops etc, are to be of rigid, smooth-faced non-absorbent material, free of cracks, crevices or cavities - such as stainless steel or other approved material. 11. All equipment, machinery, shelving etc, shall be fixed on solid concrete plinths or alternatively, mounted on round metal legs at least 200mm off the floor. Hollow plinths are not permitted. 12. All shelving throughout the premises is to comply with the following:- a. Shelving shall be of glass, metal, plastic, coated timber or other approved materials; b. The surface of shelving, including edges, is to be smooth, non-absorbent and free of cracks, crevices or cavities; and c. All shelving is to be of solid construction. 13. Provide a wash hand basin in a central location within the food preparation area. The basin must be supplied with hot and cold water provided through a mixing tap, together with a sufficient supply of liquid soap and single use (e.g. paper) towels or another approved hand drying device.

[48]

d. The registered proprietor shall indemnify the Council and any adjoining landowners against damage to their land arising from failure of the pump facility or stormwater system. The applicant shall bear all costs associated with the preparation of the 88E Instrument. The wording of the Instrument shall be submitted to, and approved by Council prior to lodgement at the Land Titles Office. Evidence that the Instrument has been registered at the Land Titles Office shall be submitted to Council, prior to issuing of an Occupational Certificate. 25. Deleted. 26. The pump system is only permitted for the drainage of the basement areas where the finished slab is below the ground level. The following conditions are to be satisfied:- a. A pump and rising main design shall be submitted to the Principal Certifying Authority and shall satisfy the following conditions:- (i) The holding tank for the pump shall be capable of storing runoff from a one hour, 1 in 100 year ARI storm event. (ii) The pump system shall consist of two (2) pumps, connected in parallel, with each pump being capable of emptying the holding tank at a rate equal to the lower of the allowable on site detention discharge rate, or the rate of inflow for the one hour duration storm. (iii) An overflow, flashing light and audible alarm are to be provided, to warn of pump failure. (iv) Full details of the holding tank, pump type, discharge rate and the delivery line size are to be documented. (v) Any drainage disposal to the street gutter, from a pump system must have a stilling sump provided at the property line, and connected to the street gutter by a suitable gravity line. (vi) The capacity of the stilling sump and outlet pump shall be determined and verified by calculations which are to be documented. b. Pumping system details shall be submitted to Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.

[56]

The Public Domain Plan shall incorporate the standard specifications and details of the relevant Burwood Council policies and standards, adapted to suit the specific site requirements as advised by the Director Technical Services and Operations and may include:- a. Adjustment to paving grades to provide a maximum crossfall of 2.5% from building line to top of kerb. b. Repaving in accordance with Council policies and specifications. c. The relocation or provision of new vehicle crossovers and pedestrian ramps including the consequent relocation of existing service pits, traffic signals, kerb corner radii, signs, street furniture and street trees. d. The retention of existing street trees and the provision of new street trees to comply with the Council Street Tree Strategy and Landscape Masterplan. e. The repair and where required the resetting of all stone kerbing to a uniform grade. Where adjustments require substantial kerb and gutter demolition, the carriageway shall be reconstructed or resurfaced (as required) to the centre line of the carriageway or to sufficient distance from the kerb to achieve a uniform transition into the existing pavement profile. f. The retention and repair of any existing pavement lights. g. The retention and repair of any existing serviceable stone gutters to achieve a uniform kerb and gutter longitudinal grading free of vertical displacement of greater than 5mm between adjacent units. h. The realignment and level adjustment of service pit lids to correspond to new kerb ramps and paving, and where required, provision of new infill type service pit lids. i. Protection or replacement by the developer of all City assets to be retained as part of Public Domain works and recovery and return of any City assets where such removal has been approved. 34. Random checks by Council officers may be made throughout the construction process to advise the contractor of non-complying elements. However, no parts of the work are to be considered approved until receipt of the Burwood Council Certificate of Completion. Burwood Council will require all non-complying parts to be rectified prior to issue of this consent.

[60]

c. Planting Plan- Plan and schedules indicating layout, location, species, size at installation, staking requirements and numbers of each species. Details of ground preparation, soil mix and staking/ tree guards. Mulch to be hardwood chip at 75mm depth. Planting layout and massing shall be in accordance with the approved DA landscape plan. Minimum requirements for planting to be as follows: Material Mature Height Min. Spacing Min. Size Trees 75L (min. 2.0m tall) Shrubs >3.0m 1/4m2 10L Shrubs 1.0-3.0m 1/2m2 5L or 200mm pot Groundcovers <1.0m 6/ per m2 150mm pot · Car Park Landscaping: That advanced species trees are to be planted throughout the carparking area(s) at a minimum rate 1 tree per 10 car parking spaces for double rows of parking and 1 tree per 5 car spaces for single rows of parking and around the carpark in accordance with Council's Landscaping Code. Understorey planting is to accompany the tree planting. The landscaping details are to be submitted to and approved by Council prior to the issuing of an Occupation Certificate. 37. Public Authority Matters, Underground Telecommunications & Undergrounding of Services: · That the applicant shall submit to Council a letter from a licensed telecommunications carrier confirming that satisfactory arrangements have been made for the provision of underground telephone services to the site / building(s), prior to the release of the Subdivision Certificate / Occupation Certificate; · Deleted; · Electricity and telecommunication cabling shall be placed underground at the applicant's expense from the development site to the main power lines and telecommunication cables in accordance with the specifications of Energy Australia and telecommunications suppliers. The following work must be carried out: · Where the property is located on the opposite side of the street to the main power lines and telecommunication cables, the house services are to be placed underground from the development site to the nearest location on the opposite side of the street for connection to the existing mains supply as directed by Energy Australia and the telecommunications carrier. The method of construction across the road carriageway shall be by directional boring beneath the road pavement; or, · Where the property is located on the same side of the street as the main overhead power lines and telecommunication cables, all services are to be placed underground across the full width of the frontage of the site. Any overhead powerlines and telecommunication cables that cross the road from the development site must also be placed underground and the cabling installed and distributed to properties in accordance with the Supplier's and Carrier's requirements. 38. Prior to the issue of a Construction Certificate, the applicant must contact: (a) The Engineer Planning and Supply Negotiations (West) Energy Australia on 131 535, to obtain quotation to underground power supply lines and where appropriate a quotation to underground the main overhead power supply lines adjacent to the frontage of the subject property.

Parties

Applicant/Plaintiff:

Rasko Holdings Limited

Respondent/Defendant:

Burwood Council

Cases Cited (3)

CITATION : Rasko Holdings Limited v Burwood Council [2005] NSWLEC 333

CASES CITED: Arminella Pty Limited v Ryde City Council [1999] NSWLEC 237 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) - Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46

46 I have had regard also to the note attached to cl 79 of the SEPP (Seniors Living) quoted above in para 43. Considering the construction of s 79C(3) of the Act, cl 79(c) of SEPP (Seniors Living) and the accompanying note, I am of the opinion that the standard is a non-discretionary development standard and some flexibility in its application is permitted without considering an objection under SEPP1. 47 The proposed landscaped area, as calculated by Mr Sue for the council, would be 590m2. Under the provisions of the SEPP (Seniors Living), the required landscaped area would be 1,600m2 based on a residential care facility with sixty-four (64) beds @ 25m2 per residential care bed. As the number of beds in the proposal has been reduced to sixty-three (63) the shortfall in area of landscaped area would be of the order of 1,010m2. 48 Mr Sue, pointed to the fact that the 590m2 of landscaped area provided for the use of occupants, visitors and staff, would not meet the minimum standard of 25m2 of landscaped area per residential care facility bed. He stated that the applicant has proposed only 9.2m2 of landscaped area per residential care facility bed and also it is proposed to build upon the existing eastern landscaped area, of about 1,000m2 that was previously set-aside as a recreational area. 49 Mr Sue also was of the opinion that the proposed forecourt, combined with landscaped area located on the southern side of the existing building, the central ground floor northern courtyard measuring 5.7m wide x 15.5m in length, the first floor terraces and other pockets of open space would be inadequate to cater for the needs of the residents. 50 Mr Shiels stated [Note: Exhibit D p 17: Indeed, my experience with aged and infirm facilities is that very little outdoor space is provided. The emphasis in these facilities is more towards improving the internal spaces and providing small outdoor functional spaces. Many of the residents in this establishment are bedridden and they are transported from their permanent bed to a transportable bed when and if they are taken outside. Also, there is a high level of dementia patients in this establishment who require a reasonable level of security. Residents using the open areas do so in a passive way. They will sometimes sit in groups in the presence of a carer. Also, the SEPP (Seniors Living) does not contain any performance criteria or objectives for landscaped area. It is difficult therefore to ascertain why the SEPP mentions this amount of landscaped area. The proposed terrace areas provided on the first floor are not …landscaped areas within the definition under clause 3 of the SEPP. As indicated, these terrace areas provide 94.28 square metres of functional open space in addition to the 590 square metres of landscaped area. In summary, in my opinion the landscaped area is not a development standard and has little relevance to the proposal. 51 Ms Chadwick was also of the opinion that, "[n]ursing home residents in general do not utilise outdoor areas for exercise as this type of activity is held within the facility for a small number of able people." [Note: Exhibit F, p 2] 52 I accept the evidence of Mr Shiels and Ms Chadwick that the requirement for 25m2 of landscaped area per residential care bed would be excessive in the particular circumstances of this case. For the type of residential nursing home care such as that provided by 'Goondee' presently and as proposed, 9.2m2 per bed of landscaped area would be satisfactory. I would not refuse consent for reason of non-compliance with the 25m2 standard. If I am wrong in this interpretation of a non-discretionary development standard, I have considered the applicant's SEPP1 objection in this respect. 53 Mr Sue considered the extent of the shortfall in the landscaped area would be excessive and the SEPP No 1 objection for a variation to the development standards could not be supported. 54 Mr Leggat identified the underlying objectives of the standard as including the provision of adequate amenity for residents and their guests, the control of bulk and maintenance of setbacks. He said, as the provision of 9m2 per bed fails to meet the objectives of the standard compliance with the standard, compliance with the standard cannot be said to be unreasonable or unnecessary. 55 The applicant lodged an objection, under State Environmental Planning Policy No 1 - Development Standards , (SEPP No 1), and requested flexibility in the application of the standard on the following grounds: · The proposed landscaping adequately screens adjoining properties. · There is ample passive landscaping for the occupants. · The Jersey Road forecourt central courtyard and first floor terraces are conveniently located for the occupants to use. · There is adequate landscaping to soften the appearance of the building. · The provision is consistent with the SEPP (Seniors Living) 2004 objectives. · The landscaping reduces the bulk and scale of the development. 56 I have considered the SEPP1 objection to the 25m2 of landscaped area per residential care bed as a minimum standard that cannot be used to refuse development consent in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Parties

Cases Cited (3)