Songkal Pty Limited v Warringah Council

Land and Environment Court (NSW)|1996-12-11|Before: McEwen AJ, Bryson J, Talbot J

The applicant submits that a photograph taken in Pittwater Road looking in a northerly direction showing a structure on the subject site, when coupled with the aerial photographs from 1943 and 1951, demonstrate that the structure (which is some five or so metres back from Pittwater Road) is elevated by about two metres. That would be so so long as the structure is not a two storey building. Along the southern side of that building is a driveway, and the roofline/structure of the building can be seen in aerial photographs up to 1965; vehicles can be seen to be parked in that driveway in the 1956 aerial photograph. If this is so, given the height of cars parked in Pittwater Road, it suggests that the building at the front of the lot close to Pittwater Road was in all probability a two storey structure or at least one which had added height for some particular purpose.

When the presently existing buildings on the site were constructed (some time between 1965 and 1972 according to the aerial photographs), there is nothing in the evidence to suggest that the rear of the site needed excavation for the construction of what now exists to the rear along the south western boundary of the site, as offices built on piers. To the contrary, the construction having been built on piers is strong evidence that there was no excavation.

Whilst the aerial photographs provide an interesting history of the site, and one can discern various structures appearing and being replaced, it is impossible to draw any reliable conclusions from the alterations in those photographs as one is left without any indication of levels. In this regard it has been most unfortunate, given the amount of time and argument devoted to discovering what the natural ground level was, that a photogrammetrist was not engaged to produce readings of relative levels, from those aerial photographs. Were this done, a simple correlation from those readings with the present levels would have told us what has happened, at least since 1943.

To accept either Mr Camillo's or Mr Player's estimate one needs to conclude that an inordinate amount of topsoil was removed from the site for the purpose of its development at different times. For Mr Camillo some three and half to four metres of topsoil over approximately three quarters of the site would need to be removed, and for Mr Player about a one and a half metres depth of topsoil over the same area. No practical rationale, or economic reason, was (or in my view could be) advanced as to why such a large volume of topsoil would be excavated from this site, to enable the construction of otherwise modest structures.

In my view the evidence only permits a conclusion of some excavation at the front of the site of about one metre, or perhaps up to one and a half metres. If there has been disturbance of the rear of the site, it has been minor.

This leads to the reading of the number of storeys more closely in accord with the approach of Mr Sanders, notwithstanding the allowance of some excavation at the front of the block. With that excavation the proposal would still be calculated at seven storeys. However the "wedges" of exceedence of the six storey limit are two sections of the car park where the area which offends is approximately half a storey (about 1.5 metres because of the height of the street level car park) at its maximum.

Given the compliance of the proposal with the maximum height limit, other matters considered in relation to the merits of the design, the bulk of the structure, and the planning constraints, I do not regard this exceedence as either determinative, or fatal to the application. (iii) Planning controls - development standards

As previously mentioned, due to the operation of cl 5(2) of WLEP 2000, the relevant LEP is WLEP 1985, and whilst DCP 24 has been replaced by WLEP 2000, it (DCP 24) has provided the policies and standards against which the proposal has been assessed. Raised as a discrete issue was the question of compliance with those policies and standards.

The assessment also however is in the context of WLEP 2000 being treated as "exhibited but not made", although given the weight which the Council has placed on WLEP 2000 both in the identification of the issues, and the analysis of the proposal under those issues one could be forgiven for thinking that the planning regime had been reversed, and with the 2000 Plan being the controlling and dominant instrument.

Clause 4 of DCP 24 provides: …before granting consent for development Council must be satisfied that

(a) the development conforms with the General Principles of Development Control and

(b) the development is consistent with the Desired Future Character described in the relevant Locality Statement

The general principles of development control in the DCP are many and various - to be found under the headings "Miscellaneous, Public Domain, Site Planning and Building Design, Traffic Access and Parking, and Soil and Water Management".

The DCP indicates how locality statements which identify desired future character are to assist (see par 22 and 23 above).

Mr Sanders, expressed the view that the proposal was neither consistent with the General Principles of development control nor with the Desired Future Character of the locality, whilst for the applicant Mr Player, Mr Camillo, and Mr Harrison were all of the view that there was compliance with both the General Principles and the Desired Future Character. Weighing the opinions of all of these experts, and with the benefit of a view of the site coupled with the photo montages which were in evidence, I have concluded that the proposal, rather than not being consistent with these controls, and notwithstanding the arguments in relation to the numerical requirements of the built form, both satisfy the General Principles and the objectives of the Desired Future Character. (iv) Design and bulk

The issues which can be subsumed within this heading concern the height of the proposal, number of storeys, and building mass.

Mr Sanders conceded that due to the relationship between the subject site and the Park, any development within the numerical constraints of either WLEP 1985, or WLEP 2000, will be "relatively prominent, particularly the north eastern elevation which adjoins the park" however the present proposal is in his view insufficiently set back, insufficiently stepped in its upper storeys, and overall its height bulk and scale as it presents both to the Park and to Pittwater Road is excessive. In the context of the exceedence of the storey control by one storey he is of the view that the Building Mass control in DCP 24 is exceeded on the three top storeys of the proposal.

The spring board for Mr Sanders' opinion is his calculation of the number of storeys being seven, rather than six. As I have indicated earlier, those portions of the car parking levels which cause the building to count as seven storeys are not whole floors, but portions which whilst counted as storeys under the definition, ought not be given the weight attributed to them by Mr Sanders. It was demonstrated in evidence that the number of storeys within the building envelope can be reduced merely by a design change (exhibit K2), there being another example of this method of rearranging levels such as to avoid the counting of "a storey" (namely the plans for the redevelopment of the Grand Reef building, to be known as Dee Why Stroll, exhibit 14).

In further answer to this complaint the applicant says that if the subject site were developed for commercial purposes, all with mezzanine floors, a proposal could comply with the six storey control and yet be built higher than the present proposal and up to the 24 metre maximum height limit. Mr Player gave evidence that an additional residential storey could be added to the proposal and it would still comply with the 24 metre building height limit under DCP 24. Whilst Mr Tobias submitted that this "envelope" of possible maximum of development did not provide for or demonstrate the "wedding cake" massing control for the top three storeys, nonetheless the proposal and overall height is lower than that which could have been applied for. Further, the complaint made by Mr Sanders as to the exceedence of the building mass control only has validity because the proposal counts as seven and not six storeys; if it counted as six storeys (ie if for present purposes one ignored the basement level), then the proposal substantially complies with the requirements of the control. Mr Harrison said it was unclear why Mr Sanders did not accept that the Building Mass control was complied with; in his view it did.

The design of the building is described as providing a "four storey podium with a coherent parapet line along Pittwater Road wrapping around to the St Davids Park north eastern elevation". The design provides for the stepping back of the upper levels with the facades to St Davids Avenue being both indented and stepped. The facades both onto Pittwater Road and fronting St Davids Avenue Park are broken and well articulated, and incorporate an interesting mix and blend of materials and finishes. Mr Camillo the architect describes his objective of rearranging the features of the facades to achieve a "…cohesive blend of shadow, shade and texture". His opinion that the relevant element of the desired future character statement is complied with, is supported by both Mr Player and Mr Harrison, and I accept that evidence.

As Mr Hemmings submits, the visual impact of the proposal needs to be assessed not only in light of what exists in the immediate environs of the proposal, but also in the context of the expected future development both adjoining the subject site, and within the precinct.

I have already mentioned the draft plans being prepared for Parkview Farm Pty Limited for the adjoining lot to the south.

Much time in evidence was devoted to six other development sites in the commercial area of Dee Why - the Kallista building at 637-641 Pittwater Road, the Benchmark building at 645-647 Pittwater Road, the Topland building on the corner of Dee Why Parade and Pittwater Road, the Grand Reef building at 610 Pittwater Road and Howard Avenue, the Dee Why Hotel on the corner of Pittwater Road and Sturdee Parade and finally the Dee Why Fruit World site at the corner of Sturdee Parade and Delmar Parade West. These were examples of either structures recently completed, or the subject of consents which in all probability would be commenced in a relatively short period of time. They were analysed by Mr Player in his statement of evidence, and demonstrated he said that the traditional low rise two - four storey commercial buildings in Dee Why were being replaced by medium rise six - seven storey mixed retail/commercial and apartment buildings which had strong vertical proportions and stepped facades. For present purposes I don't regard it necessary to analyse these sites in the detail with which they were pursued in evidence. Cumulatively they demonstrate that the Council has continued to exercise a feasible approach and a considerable degree of discretion in applying the standards in its planning instrument and policies; the present application is no different. Mr Tobias submitted that the present application was distinguished from these examples by significant departures from the standards in the instant application; he argued that the present proposal ought be lowered to reduce its mass. In my opinion that is unnecessary; the exceedences or departures in some of the examples were for greater than what is proposed here.

There is however one aspect of Mr Player's evidence which I should mention. In cross-examination Mr Tobias demonstrated to Mr Player that a particular control exceedence in relation to the Topland building had not been described with sufficient accuracy by him in his evidence. As to the Benchmark development it was suggested that Mr Player's analysis did not candidly reveal the background to that proposal. In the context of the use that was being made of these examples, this criticism of Mr Player was pedantic. It certainly was not a sufficient foundation for the submission put that he had played "fast and loose" with the evidence, and I reject that submission.

Mr Harrison, part author of the 1993 strategy, was engaged by the applicant to provide an independent assessment of the proposal in the context of the 1993 Strategy, the 1997 Study, and the DCP's objectives, Mr Harrison was of the view that the proposal was entirely consistent with those earlier visions, and the relevant objectives. Given that the probable redevelopment in the surrounding environs will be within the 24 metre height constraint, the proposal will in his view "fit well". I agree with that conclusion.

The question of access from a planning point of view has been adequately addressed, and the issue as to legality of access and the availability of access is deferred to another time. As to the merit matters argued, notwithstanding the exceedence of the storey control, I am of the view that the proposal meets the relevant principles and desired objectives for future local character, and in particular the overall vision enunciated for the development of the Dee Why shopping precinct. The impacts which will flow from construction of the development are not such as to warrant its refusal. If constructed in accordance with the plans and described finishes, the development in my view will add a positive element to the revitalisation of the shopping centre, and present not just as an acceptable, but attractive structure.

As to conditions the Council submitted that a deferred commencement condition was inappropriate, for the reason that the application should be rejected until both the legality of access, and the achieving of actual access, in relation to the triangle, was obtained. For reasons I have already referred to, such an approach is in my view unwarranted.

Council had drafted a deferred commencement condition which required, before the operation of the consent, an LEP to permit development over the triangle, the granting of consent for the use of the triangle for that purpose, and then the registration of a right of carriageway over it. The consent was to be predicated on the applicant being able to comply with those requirements within two years of the date of the consent. Mr Hemmings submitted and I accept, that this approach is unduly restrictive and unnecessary. Nor Mr Hemmings submitted was it appropriate for the conditions to recite that the consent did not grant approval to use of the Park or triangle. Although that land forms no part of the application, Mr Hemmings did not resile from the argument that it was within the Court's power to approve the application for use of the triangle for access purposes (Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181 at 186, Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231 at 237). However this approach takes the argument back to a consideration of issues 1A and 1B, which were disposed of (other than for planning implications) by withdrawal of the triangular portion of land as part of the application.

The deferred commencement conditions drafted by Council were objected to by the applicant. However their deletion Mr Tobias submitted would lead to a consent enabling construction of the building such that upon completion the applicant would "hold a gun at the head" of the Council, to force the granting of an easement. The same would apply, he submitted, if the consent was conditioned on the obtaining of an occupation certificate, post construction.

Rather than allow circumstances to arise which may be the spring board for further argument between the parties it appears in my view preferable for a form of deferred commencement to issue, albeit with a condition which triggers the operation of the consent upon the obtaining of legal access by way of either a right of way or a transfer of the land itself.

Consent is grated to development application No DA 2000/5096 in accordance with the conditions of consent attached hereto.

The exhibits to remain with the Court for 28 days and to then be returned.

CONDITIONS OF DEVELOPMENT CONSENT No 701 Pittwater Road, Dee Why DA No 2000/5096

A. Conditions of deferred commencement required to be satisfied prior to the consent operating.

This deferred commencement consent is granted under Section 80(3) of the Environmental Planning & Assessment Act 1979 and shall not operate until the applicant has satisfied the Council it has obtained either a right of carriageway for vehicular and pedestrian access over, or had transferred to it, the title to, that part of Lot 1 DP 364010 in the north western corner of St Davids Avenue Park having an area of approximately 27.3 m2 being triangular in shape and having dimensions of approximately 9 metres onto St Davids Avenue, and 10.85 metres on its boundary with Lot 1 DP 300967 and being approximately 6.07 metres on the shortest side of the triangle.

Development being generally in accordance with drawings prepared by Leffler Simes Pty Ltd Architects Project No 1500 numbers DA01/C, DA02/C (both amended to 14 December 2000); DA03/G (amended to 13 June 2001); DA04/K (amended to 22 July 2001); DA05/H, DA06/E, DA07/E, DA09/F, DA010/F (all amended to June 2001); DA011/B (amended to 19 February 2001); DA012/G, DA013/J (both amended to 13 June 2001); DA014/D (amended to 23 May 2001); DA016/B (amended to 18 June 2001); DA017/A (amended to 14 December 2000); DA019A (amended to 25 June 2001); Stormwater drainage plans prepared by LHO Group Project No 00240 drawing numbers HSK 01B and HSK 02B (amended to 12 June 2001) and drawings prepared by Hortulus Project No 1500 drawings numbers LP01B and LP02B (amended to 19 June 2001) as modified by any conditions of this consent.

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)
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 a standard flushing toilet, and (ii) must be connected: A. to a public sewer, or 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 other work is commenced. d. In this clause: (i) accredited sewage management facility means a 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 1993. (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)

Compliance with Building Code of Australia (1) All building work must be carried out in accordance with the provisions of the Building Code of Australia. (2) This clause does not apply to the extent to which an exemption is in force under Clause 80H or 80I, subject to the terms of any condition or requirement referred to in Clause 80H (6) or 80I (4). (C375)
To ensure compliance with the minimum requirements of the Building Code of Australia and associated Australian Standards, the building being constructed in Type A Construction (Part C of Building Code of Australia). (C395)
Residential Building Work (1) 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: a) in the case of work to be done by a licensee under that Act: (i) has been informed in writing of the licensee's name and contractor licence number, and (ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, OR b) in the case of work to be done by any other person: (i) has been informed in writing of the person's name and owner-builder permit number, or (ii) 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 that Act, and is given appropriate information and declarations under paragraphs (a) and (b) 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 (b) (ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary. (2) 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)
Provision of a continuous balustrade to any stairway, ramp or balcony which is more than 1 metre above the floor or ground surface beneath. Balustrades to be a minimum height of 1000mm (or 865mm above stair nosings) with openings not exceeding 125mm. Ref.D2.16 of the Building Code of Australia and Ref.3.9.2, Vol 2, Building Code of Australia. (C216)
Excavations and Backfilling (1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. (2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. (C378)
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)
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 "Occupation Certificate" as required in Part 7B of the "Environmental Planning and Assessment Amendment Act 1997". (C387)

Support for Neighbouring Buildings (1) 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: (a) must preserve and protect the building from damage, and (b) if necessary, must underpin and support the building in an approved manner, and (c) 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. (2) 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. (3) In this clause, allotment of land includes a public road and any other public place. (C380)
Protection of Public Places (1) If the work involved in the erection or demolition of a building: (a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or (b) building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. (2) 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. (3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. (4) 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) (1) 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: (a) stating that unauthorised entry to the work site is prohibited, and (b) 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. (2) Any such sign is to be removed when the work has been completed. (3) This clause does not apply to: (a) building work carried out inside an existing building, or (b) 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.
The hours of construction and/or work being restricted to Monday to Friday, 7am to 5pm, Saturday 7am to 1pm, no work on Sunday and Public Holidays, where the construction or work in the opinion of Council interferes with the amenity of the neighbourhood by the emission of noise, chemical or physical pollutants or otherwise. In respect of noise, the L10 level (average maximum noise levels) measured over a period of 15 minutes when the construction site is in operation must not exceed background noise level by more than 10dB(A). (C325)
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)
Compliance Certificate are required at the following stages of construction:- a) Preliminary - immediately following the setting out of the development footprint prior to excavation and/or formation of footings or slabs with environmental protection measures and toilet facilities installed. b) Floor Plan and Elevation - to ensure compliance with set out of each floor level. c) Final - prior to occupation/use, the satisfactory completion of the building works with respect to:- i) Compliance Certificates as nominated ii) Compliance Certificates (components) as nominated (C396)
The fee(s) required for a Council Compliance Certificate inspection(s) is $990 and it is to be paid prior to Council issuing the Construction Certificate. NOTE: Each Compliance Certificate inspection fee is $110. Where construction certificates and compliance certificates are issued by external accredited certifiers the above fee is not required. (C397)
The following component certificates are required to be submitted to Council prior to occupation/use of the building, to ensure compliance with the Building Code of Australia and relevant Australia Standards:- (C399) a) Structural Engineers certificate covering the supervision of all structural work and adequacy of the building. b) Accredited Certifiers certificate which states the structural components of the building have a fire resistance level in accordance with the requirements of Part C the Building Code of Australia for a Type A construction /and / the approved plan. c) Accredited certifiers certificate stating the fire walls between all Units complies with the requirements of Part C of the Building Code of Australia./ and / the approved plans. d) Accredited Certifiers certificate stating the construction bounding the fire isolated passageway(s) stairway(s) complies with Part C of the Building Code of Australia / and / the approved plan. e) Acoustic Engineer / Accredited certifiers certificate stating the walls between the Units complies with: the requirements of Part F5 of the building Code of Australia /and / the approved plans. f) Electrical contractors certificate stating the smoke alarm system has been installed in accordance with AS 3786-1993 "Fire Alarms". g) Plumbing and Drainage contractors certificate indicating that sewer/waste water system has been installed and completed in accordance with the Sydney Water requirements. h) Accredited waterproof installers certificate which certifies the waterproofing system has been applied in accordance with the manufactures recommendations and AS 3470-1994 "Waterproofing of Wet Areas in Residential Buildings". i) Mechanical Engineers certificate which certifies the air handling system has been designed, installed and is operational in accordance with the requirements of AS 1668-1991 "The use of mechanical ventilation and air-conditioning in buildings, Part 1: Fire and smoke control" / Part 2: Mechanical ventilation for acceptance indoor-air quality". j) Registered pest contractors certificate which states termite control measures have been installed in accordance with AS 3660.1-1995 "Protection of Buildings from subterranean termites Part 1 New Buildings". k) Registered Surveyors, Identification Survey report indicating the location of the completed development on the site in relation to all boundaries. l) Registered Surveyors identification report indicating the finished site / floor / roof / ridge levels in relation to a nominated fixed datum point / are in accordance with the levels indicating plans. m) Glazing installation contractor certificate stating all glazing has been selected and installed in accordance with AS 1288-1994 and the appropriate terrain category classification.
Plant and demolition materials shall not be placed or stored within the public road reserve and adjacent reserve and shall be stored within the boundaries of the site during demolition works. Failure to comply with this condition may result in Council taking action to remove the offending items from the public reserve, and all costs incurred by Council will be deducted from any deposit moneys held in relation to the subject property.
Prior to the commencement of any excavation of Council's roadway or reserve, the builder, or his contractor, shall obtain a Road Opening Permit and pay all associated restoration charges to Council. A copy of such permit shall be kept on-site during the works.
Failure to comply with this requirement will result in Council taking action to recover all of its costs in accordance with the provisions under Section 94 of the Roads Act 1993. (C523)
All demolition work shall be carried out in a safe and responsible manner, with minimal harm to the surrounding natural environment under the supervision of a licensed contractor, and within the boundaries of the private property. (C524)
All demolitions are to be carried out in accordance with the guidelines contained in the Australian Standard AS2601-1991 - "The Demolition of Structures". (C525)
Dust control measures shall be undertaken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment. (C529)
A person taking down, demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Work Cover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal. The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with. (C530)
Silt and sediment erosion control measures shall be provided to the demolition site to prevent the siltation of all downstream properties and/or other public areas. (C531)
In accordance with Part 7B of the Environmental Planning and Assessment Act the owner of the building is to provide Council with an Annual Fire Safety Statement for the building (Form 15A).
Submission at the Construction Certificate stage of the anticipated schedule of current and proposed fire safety measures to be implemented in 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 "Occupation Certificate" as required in Part 7B of the "Environmental Planning and Assessment Amendment Act 1997". (C387)

No signs to be displayed without a separate approval where required under Council's Local Environmental Plan.
The colours, and materials of all external components of the building and hard surfaces to be generally in accordance with submitted scheme for the development.
The payment of the following developer contributions prior to release of Construction Certificate:

$224 Open Space Links and Cycleway ( 6901) $42 Childrens Facilities (6902) $3920 Libraries (6903) $4060 Sport Field Establishment (69040 $4732 Administration and Studies (6922) $4326 Community Facilities (6906) $83048 Local Open Space (6912) $3024 Roads and Traffic (6915) $370 Office (6924) $103,660 Total Calculated using 14 units; 144 Sq M Office These amounts have been calculated using the Warringah Section 94 Contribution Plan 2001 adopted 22/5/2001 effective 1st June 2001 . They are current at the time of issue of this Consent. They are current at the time of issue of this Consent. They will be adjusted at the time of payment according to the quarterly CPI (Sydney-All Groups Index). An updated schedule of Council's contribution rates is issued each quarter and is available at Council's offices. Please ensure that you provide details of this Consent when paying contributions so that they can be easily recalculated. 34. Hoardings and child proof fencing to residential properties shall be installed to prior to construction/demolition commencing, and shall remain in place for the duration of the work. No construction access is permitted other than at the approved vehicle crossing/s into Pittwater Road. All loading, unloading and storage of materials for works within the site shall take place within the hoarding enclosure. (C87) 35. The on-site stormwater detention facility to control the rate of stormwater runoff from the site to be in accordance with Warringah Council's publication "On-Site Stormwater Detention - Technical Specification, March 1998". (C68) 36. 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 and shall be submitted to the council or certifier prior to issue of the Construction Certificate. (C41) 37. 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) 38. Construction of footpath paving consisting of pavers in accordance with Council's standard specifications for engineering works. (C84) 39. Hoardings shall be installed to prior to construction/demolition commencing, and shall remain in place for the duration of the work. No construction access is permitted other than at the approved vehicle crossing/s . All loading, unloading and storage of materials for works within the site shall take place within the hoarding enclosure. or alternatively in a dedicated construction zone approved by Council in St Davids Avenue for the purpose of loading and unloading materials. (C87) 40. Payment to Warringah Council of a $10,000 bond as security against damage to Council's roads caused by the transport and disposal of materials and equipment to and from the site to Account No.009 TF037. This amount to be paid prior to the issue of the Construction Certificate and to be verified by the accredited certifier. (C108) 41. All construction and restoration work on Council's road and footpath area are to be carried out strictly in accordance with the approved drawings and Council's Standard Specifications. (C110) 42. The developer/applicant is to obtain a Road Opening Permit and pay all appropriate charges prior to commencement of any work on Council property. The developer/applicant shall be responsible for all public utilities and services in the area of his work, and as such shall notify all relevant Authorities, and bear all costs associated with any repairs and/or adjustments as those Authorities may deem necessary. (C113) 43. Lighting, fencing, traffic control and advanced warning signs shall be provided for the protection of the works and for the safety and convenience of the public and others, to the satisfaction of the Principal Certifying Authority, and in accordance with Council's Standard specifications for engineering works. Traffic movement in both directions on public roads, and vehicular access to private properties is to be maintained at all times during the currency of the works. (C117) 44. Other than with respect to the dedicated Construction Zone referred to in Condition 39 above, footpaths and roadways are to be kept free of obstruction by building materials and plant and concrete trucks, pumps and/or agitators are to be kept within the building site. No concrete or slurry being discharged onto Council's street surfaces. (C321) 45. Provision of a hoarding to the frontage of the property. A separate application to be made to Council for this purpose. This hoarding is to be erected before any work is commenced on site. (C341) 46. The payment of $5,000 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) 47. Creation of a Positive Covenant on 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) 48. Where any conditions of this Consent require dedication, consolidation, easement or covenant, the number allocated by the 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 Positive Covenant prior to occupation. A certified copy of the documents shall be provided to Warringah Council after final approval and registration has been effected by the Land Titles Office. (C57) 49. An application is to be made to Sydney Water in accordance with the provisions of Division 9, Section 73 of the Water Board Corporation Act 1994 and notice of requirements obtained prior to the issue of a Construction Certificate. (C58) 50. Provision of 1 vehicle crossing, 6.0 metres wide in accordance with Warringah Council Drawing No.A4-3330 to approved levels and specifications. An application for street levels is to be made prior to issue of the Construction Certificate. (C89) 51. Construction of approved kerb laybacks in accordance with the details shown on Warringah Council Plan A4-2276. (C90) 52. Prior to finalising detailed designs of the proposed development, the applicant should check all existing public service utilities adjacent to the site and ensure that where necessary appropriate arrangements are made for the relocation and/or adjustment of any services at the applicant's expense. (C96) 53. The requirements of condition ending in code C68 shall be designed and supervised during the works by an Engineer with qualifications and expertise recognised by the Institute of Engineers Australia as being adequate for the purpose. The Engineer shall certify prior to occupation or release of Linen Plan of Subdivision that the works have been completed strictly in accordance with the approved design and to appropriate standards of workmanship. (C98) 54. With respect to condition ending in code C68, design details, computations and/or support documentation shall be submitted with the Construction Certificate and to satisfy the above conditions prior to the issue of the Construction Certificate. (C99) 55. Council's Development Engineer is to be given 24 hours notice when the works reach the following stages a) Subgrade level/basecourse level/footpath paving NOTE: Any inspections carried out by Council do not imply Council approval or acceptance of the work, and do not relieve the developer/applicant from the requirement to provide an engineer's certification as conditioned above. Council approval or acceptance of any stage of the work must be obtained in writing, and will only be issued after completion of the work to the satisfaction of Council and receipt of the required certification. (C127)

Submission to Council or the Private Certifier four (4) copies of drainage plans for approval prior to the release of the Construction Certificate. The drainage plans shall detail the provision of On Site Stormwater Detention in accordance with Councils " On Site Stormwater Detention Technical Specification" dated July 2000. On the completion of works a Compliance Certificate and Work as Executed plan are to be submitted to the Principal Certifying Authority prior to the issue of the Compliance Certificate.
Payment of the fees/charges listed below prior to issue of the Construction Certificate. Builder's Road/Kerb Security Deposit (Refundable) $2,200 Kerb Damage Inspection Fee $80.00 Street Levels $80.00 Road Opening as advised at CC stage as per Councils Fees Schedule 1/7/2001. Hoarding Permit fees as advised at CC stage as per Councils Fees Schedule 1/7/2001. Long Service Leave Levy as advised at CC stage.

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.

CITATION : Songkal Pty Limited v Warringah Council [2001] NSWLEC 197 APPLICANT Songkal Pty Limited PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10266 of 2001 CORAM: McEwen AJ Development Application :- Owners consent KEY ISSUES: non planning matters not a bar to grant of development consent access - bulk and scale - deferred commencement Conveyancing Act 1919, s 88K LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 78A, s 79C Environmental Planning and Assessment Regulation 1994, cl 46 Buckoke v Greater London Council [1971] 1 Ch. 655; Currey v Sutherland Shire Council and Anor (1997) 92 LGERA 85; Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 400; Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113; Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, Bryson J, unreported; Marshall v Blackpool Corporation [1935] AC 16; CASES CITED: North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Parramatta City Council and Anor v Hale and Ors (1983) 47 LGRA 319; Remath Investments No 6 Pty Ltd v Botany City Council (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported); Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231; Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; Weal v Bathurst City Council and Anor (2000) 111 LGERA 181 DATES OF HEARING: 23/07/2001, 24/07/2001, 25/07/2001, 26/07/2001 DATE OF JUDGMENT: 08/24/2001

Mr Tobias submitted that one could not assume either what the law may be in the future or that the Council would eventually grant a right to the applicant for the use of the triangle, and that in those circumstances a determination in favour of the applicant would be premature. Reference was also made to the prospect of obtaining a right of way pursuant to s 88K of the Conveyancing Act 1919. Recently such an application was successful (Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, Bryson J, unreported). Of course there is no guarantee that here such an application would be successful, but as Mr Hemmings points out there are a plethora of examples of applications for consent by a Council which require some further permission consent or licence from a third party, and sometimes from many more than just one other instrumentality or government authority, for a council's consent to be actioned. If Council's determination of applications were to remain in abeyance and deferred pending the obtaining of all other necessary consents, the planning system in this State would descend into chaos. Merit Matters

It is not without significance that the applicant originally proposed access from Pittwater Road, but following Council's recommendation and request, altered the access to that now proposed across the triangle. Given the established entitlement of an owner of land adjoining a highway to have access to and from the highway (Marshall v Blackpool Corporation [1935] AC 16, at 22, cited with approval by Clarke JA in Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231 at 235), it is reasonable to expect that common sense will prevail in the present circumstances. Such an observation of course in no way compels the Council to grant consent across the triangle, but on the material before the Court, logic dictates that this should happen.

(2000) 111 LGERA 181

(2000) 111 LGERA 446

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Cases Cited (9)