Adjani Corporation Pty Limited v Manly Council - [2004] NSWLEC 337

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Adjani Corporation Pty Limited v Manly Council [2004] NSWLEC 337

PARTIES: APPLICANT
Adjani Corporation Pty Limited
RESPONDENT
Manly Council

FILE NUMBER(S): 10542 of 2002

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Residential flat building - Modification of consent

LEGISLATION CITED: Manly Local Environmental Plan, 1988, (MLEP) - Manly DCP for the Business Zone 1989 (Amendment 3), (DCPAm3) - Manly Town Centre Urban Design Guidelines, (Guidelines) - State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings, (SEPP65) - Better Urban Living - Guidelines for Urban Housing in NSW SEPP65, (BULG) - Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING: 17/02/2003, 18/02/2003, 19/02/2003 and 20/02/2003 - 30/03/2004 commence modification appeal - 01/04/2004, 20/04/2004 mentions

DATE OF JUDGMENT: 06/23/2004

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Tobias, QC with
Mr I Hemmings, barrister, instructed by
Mr G McKee, solicitor
Mr G McKee, solicitor in modification appeal
SOLICITOR
McKees Legal Solutions
RESPONDENT
Ms C Schofield, solicitor
SOLICITOR
Pike Pike and Fenwick

JUDGMENT:

Land and Environment Court of New South Wales

Appeal No: 10542 of 2002

Adjani Corporation Pty Limited
v
Manly Council

Judgment

Environmental Planning and Assessment Act 1979,

The land
4 The land is situated on the eastern side of Wentworth Street between East Esplanade and Darley Road and has an area of 1192.08 m2 a frontage to Wentworth Street of 25.34m.
5 Erected on the land are three (3) x three (3) storey buildings occupied by medical/office and residential purposes.
6 Nearby are other office buildings and residential flat buildings of around five (5) to eight (8) storeys.

Relevant planning controls

Manly Local Environmental Plan, 1988, (MLEP)
7 The site is zoned Business under the MLEP. The general aims and objectives of the MLEP include:

3(1)(d) to encourage further development of the commercial centres to cater for the retail, commercial, entertainment, welfare and recreational needs of residents and visitors

3(1)(e) to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the Manly Council area.

3(1)(j) to ensure that new development does not detract from the very special visual quality of the Manly Council area

3(1)(l) to increase safety and amenity of residential, commercial and industrial precincts without downgrading accessibility

(a) to divide land into the zones referred to in Clause 9 and to achieve in each of those zones the objectives specified for the land in Clause 10; and

(b) to enable the council to make development control plans regulating the carrying out of development in any zone:

(i) by restricting the carrying out of that development to a specified area within the zone; or
(ii) by fixing standards or specifying requirements for that development.

Policies and strategies in relation to residential and community life, the MLEP states at (a):
(i) to maintain, protect and increase the Manly Council area's permanent residential population;
(ii) to prescribe the nature and intended future of the residential areas within the Municipality by means of density and other controls;
(iii) …
(iv) …
(v) to provide initiative to improve the range and quality of community services and facilities throughout the Manly Council area;
(vi) …
(vii) …to encourage revitalisation, rehabilitation and redevelopment of residential areas while ensuring that dwelling form, including alterations and additions, does not degrade the amenity of surrounding residences or the aesthetic quality of the Manly Council area;

9 In relation to industry and commerce, the MLEP states under (c):
(i) to promote industry and commerce which will contribute to the economic growth and employment opportunities within the Manly Council area;
(ii) to consolidate, promote and strengthen retail activity in the Manly Town Centre;
(iii) to limit retail activity to existing commercial zoned areas and encourage further development of these centres to cater for the retail, commercial entertainment, welfare and recreational needs of residents and visitors;
(iv) …
(v) to ensure sufficient services space is provided for delivery to shops and commercial and industrial premises.

1.

The objectives-of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone.

2.

Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which:

(a)

development may be carried out without development consent;

(b)

development may be carried out only with development consent; and

(c)

development is prohibited.

Are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone.

Except as otherwise provided by in this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

Business Zone - Objectives of Zone
(a) to provide for and encourage the development and expansion of business activities which will contribute to the economic growth and employment opportunities within the Manly Council Area;
(b) …
(c) to ensure there is adequate provision for carparking in future development in the business areas.

5(1)(d) (The consent authority shall, in respect of an application ...take into consideration) "whether adequate space has been provided within the site of the building or development for the loading, unloading of vehicles...

13(1) Subject to this clause, the consent authority shall not consent to the erection or use of any building or land zoned for commercial or industrial purposes unless provision is made within the site area for loading and unloading facilities satisfactory to the consent authority

Manly DCP for the Business Zone 1989 (Amendment 3), (DCPAm3)
13 DCPAm3, amended 13 June 2000, Preliminary D Exhibit 4 p 3, the relevant objectives are:
1. …
2. …
3. …
4. …
5. To introduce floorspace ratio controls in order to provide firm guidelines as to the potential development of a centre and an individual site;
6. To introduce building heights, setback and other controls relating to building form and height in order to achieve constant and coherent townscape appropriate for the locality.
7. To introduce car parking standards relating to required car parking spaces for particular uses, and policies relating to the preferred location of such spaces within a particular centre in order to optimize the use of car parking spaces and control traffic movements.

“Development Control Plan for the Residential Zone 2001,”

Manly Town Centre Urban Design Guidelines, (Guidelines)
17 The provisions of the Guidelines Exhibit 12, dated April 2002, apply and in particular:
· B5 objectives;
· para 1.2.6 - Built form, scale and character;
· para 2.1.4 - Built form, scale and character;
· para 2.1.7 - Solar access and overshadowing;
· para 2.1.9 - Building expression; and
· s 3.1.3 - Wentworth Street area.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)
18 The following design quality principles of SEPP65 Exhibit 19: State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, gazetted 26 July 2002 and as amended apply:
1. Context: Good design responds and contributes to the context… including built features of the area;
2. Scale: Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding area;
3. Built form: Good design achieves an appropriate form for a site and the building‘s purpose, in terms of building alignments, proportions, building type and the manipulation of building elements;
4. Density: Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environment[al] quality;
5. …
6. Landscape: Good design… resulting in greater aesthetic quality and amenity for occupants and the adjoining public domain;
7. Amenity: Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility;
8. …

Better Urban Living - Guidelines for Urban Housing in NSW SEPP65, (BULG)
19 The BULG Exhibit 7 was amended on 20 December 2002. Clause 32 of the amended SEPP65 provides:

The amendments made to this policy by State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (Amendment No 1) do not apply to a development application made but not finally determined before the commencement of those amendments.

20 The relevant provisions of the BULG prior to Amendment No 1 apply:
(a) Setbacks pp 20 and 21 - and in particular the objectives;
(b) Height pp 22 and 23 - and in particular:
· The suggestion that: “Building height and bulk should be distributed on the site to ensure that there is no significant loss of amenity to adjacent sites, open spaces and public streets,” and
· Examples of development controls and minimum setbacks on p 23.
(c) Residential building types pp 24 and 25 - in particular, the suggestion on p 25 that appropriate building types should be selected in response to various criteria including existing adjacent development.
(d) Site design p 26 - and in particular:
· The objective;
· The suggestion that several issues should be covered in the site design of urban housing including residential amenity, relationship of built area to open space, communal spaces, privacy between dwellings and orientation for sun access.

(e) Site analysis pp 27 and 28 - and in particular:
· The objective.
· Suggestions that a site analysis should identify several factors including easements, location of existing vegetation including height and spread of trees in particular if they have the potential to be retained and the location of building and other structures and
On page 28 that the surrounds be taken into account and in particular:
· The location, height and use of neighbouring buildings including location of any facing doors or windows and out buildings.
· Adjacent private open spaces and living room windows, which have outlooks towards the site particularly those within 9m of the site.
· Views and solar access enjoyed by adjacent residents.
· Built form and character of adjacent and nearby development including characteristic fencing and garden styles.

The suggestion that the majority of open space provision should be distributed as private gardens, courtyards or balconies to individual dwellings.

· The recommended minimum depth of balconies is 1.5m.
· At least 25% of each private open space should receive 2 hours of sunlight per day from April to August for vegetation growth and amenity reasons.

The suggestion that the new development should ensure that the building does not restrict solar access to neighbouring buildings and open spaces.

(m) Roof at p 54 - and in particular the suggestion that in roof design lift over runs and service plant should be concealed within well designed roof structures.

Site facilities on pp 62 and 63 - and in particular:

The proposal and its history
21 Development application No 288/02 was lodged with the respondent council on 4 July 2002 to demolish the existing buildings on the land and to erect a mixed use building for residential and commercial use originally containing forty four (44) units over six (6) storeys, amended thirty five (35) residential units and two (2) commercial units over five (5) storeys on the land.
22 The proposal is described in the architectural plans Exhibit A: Plans prepared by SDA International Pty Limited being: DA01, Basement 2 plan, Issue B; DA02, Basement 1 plan, Issue B; DA03, Ground floor plan, Issue C; DA04, Level 1 plan, Issue C; DA05, Level 2 plan, Issue C; DA06, Level 3 plan, Issue C; DA07, Level 4 plan, Issue C; DA08, Level 5 plan, Issue C; DA09, Roof plan, Issue C; DA10, North elevation (Building 1), Issue C; DA11, South elevation (Building 2), Issue C; DA12, West elevation, Issue C; DA13, East elevation, Issue C; DA14, South elevation (Building 1), Issue C; DA15, North elevation (Building 2), Issue B; DA16, Section, Issue C.. The shadow diagrams were a separate tender Exhibit B: The shadow diagrams included: DA17, Shadow diagrams, Issue C; DA18, Sun path diagrams, Issue C; [DA19, Detailed crossing section, Issue B; not included in the exhibit]; DA20, Sun path diagrams, Issue A; DA21, No 5-36 East Esplanade shadow diagrams, Issue A; DA22, No 37 East Esplanade shadow diagrams, Issue A; DA23, No 5-7 Victoria Parade photomontage, Issue A . The landscaped plans were Exhibit C: Landscape plans prepared by Arterra Design Pty Limited being: LP-SD-01, Issue C dated 27 June 2002; LP-SD-02, Issue C dated 27 June 2002.. Architectural Reference Set on A3 paper Exhibit D: Architectural Reference Set: DA00, Title page, Issue C; DA01, Basement 2 plan, Issue B; DA02, Basement 1 plan, Issue B; DA03, Ground floor plan, Issue C; DA04, Level 1 plan, Issue C; DA05, Level 2 plan, Issue C; DA06, Level 3 plan, Issue C; DA07, Level 4 plan, Issue C; DA08, Level 5 plan, Issue C; DA09, Roof plan, Issue C; DA10, North elevation (Building 1), Issue C; DA11, South elevation (Building 2), Issue C; DA12, West elevation, Issue C; DA13, East elevation, Issue C; DA14, South elevation (Building 1), Issue C; DA15, North elevation (Building 2), Issue B; DA16, Section, Issue C. DA19, Detailed crossing section, Issue B; [DA24, Wentworth Street photomontage, Issue A; not included in exhibit]; DA25, Street photomontage, Issue A; DA26, Photomontage from Darley Road dwelling, Issue A; and DA27, Photomontage from East Esplanade, Issue A. Landscape plans prepared by Arterra Design Pty Limited being LP-SD-01, Issue C dated 27 June 2002; Landscape plans prepared by Arterra Design Pty Limited being LP-SD-02, Issue C dated 27 June 2002; Survey plan A1: Initial issue. The Architectural Addendum Reference Set on A3 paper Exhibit E: Architectural Addendum Reference Set: DA30, Wentworth Street photomontage looking South, Issue A; DA31, West elevation, Issue A; DA32, East elevation, Issue A; . Shadow Access Set on A3 paper Exhibit F: Shadow Access Set: 02.04 Title page; DA17, Shadow diagrams, Issue C; DA18, Sun path diagrams, Issue C; DA20, Sun path diagrams, Issue A; DA21, No 35-36 East Esplanade shadow diagrams, Issue A; DA22, No 37 East Esplanade shadow diagrams, Issue A; DA23, No 5-7 Victoria Parade photomontage, Issue A; DA29, Sun path diagrams, Issue A; DA29, Sun path diagrams, Issue A;.

Amended plans
23 During the course of the hearing amended plans were tendered and accepted into evidence. These plans Exhibit Z: Internal view of typical screen wall to units 2, 3, 4, 5 and 6; DA40A Section; DA42A June 21 30 minute interval sun path diagrams; DA43A Typical building 2 façade / terrace detail show the glass screen to units Nos 2, 3, 4, 5 and 6 and the modification to the parapet on the eastern side of building No 2.

Notification
24 The application was notified to nearby owners and occupants and twenty-seven (27) submissions were received. The grounds for objection are:
· Overshadowing of Units 1 and 3/5-7 Victoria Parade; 9,13 and 14/37-38 East Esplanade; 22 Darley Road (rear outdoor areas and lower levels).
· Overshadowing is a concern for the lower three floors of 37-38 East Esplanade where morning sun is considered to be blocked;
· Overshadowing of the courtyard shared by 35-36 and 37-38 East Esplanade and a possible reduction of growth to vegetation, likely mould and mildew and health risks;
· Loss of some hours of morning sun to the balcony and a private garden area at 1/38 East Esplanade;
· Modifications are sought to minimise impact an alleged crowding effect and a 'canyon-effect' in the street;
· Extent of notification to 5-7 Victoria Parade was an initial concern;
· Loss of privacy to bedroom and adjoining balcony at Units 1, 9, 13, 14, 17/37-38 East Esplanade and direct overlooking to all other units at the rear of 37-38 East Esplanade overlooked by oblique angles of view from the northern tower;
· Similarly units at the rear of 35-36 East Esplanade are overlooked by oblique angles of view from the new southern tower. Loss of privacy is also a concern for occupants of 22 Darley Road;
· The minimum separation distance between the two proposed towers is considered inadequate in terms of maintaining privacy of dwellings and adequate daylight and sunshine and the rear setback of 3m is considered inadequate;
· Loss of view is particularly due to the extent of the upper floor terrace in the rear block looking directly towards 37-38 East Esplanade Manly;
· Proposed model of development is misrepresentative as balconies and windows etc of adjoining properties are not depicted;
· Loss of view from the fourth level of 1-3 Wentworth Street Manly towards "St Patricks";
· Loss of outlook and views from 22 Darley Road. In this regard offices on 4 of the six levels will directly face a six storey blank wall on the boundary and the upper two floors are to lookout to flat concrete roof likely to be littered with service terminals etc. Likely loss of harbour views from level 3 up are a concern;
· Loss of view and privacy from 5 Wentworth Street, across the road;
· Loss of ocean view from top four floors (excluding top floor) at the rear of 35- 36 and 37-38 East Esplanade;
· Excessive height particularly in relation to the heights previously considered for 1-3 Wentworth Street;
· Recent development is cited as having a maximum of 5 storeys;
· Incremental increase in height from one approval to another are a concern;
· Various reductions are sought including a reduction by one storey consistent with other 1-3 Wentworth Street and/or reductions of 2.5m to comply with the 15m limit;
· Impact of existing buildings in excess of the height control will be further exacerbated;
· The application appears not to have examined the criteria set by SEPP 65 and the Applicant's site analysis plan appears to have ignored the site context;
· The Statement of Environmental effects contains major inaccuracies eg. 39 Wentworth Street is described as a commercial /residential building whereas it is solely commercial;
· Excessive bulk and over-development of the site is a concern and the development is not considered to add anything to create or enhance the streetscape or character of Manly;
· The towers are considered aesthetically unappealing;
· The proposed front facade is more vertical in scale and appearance than adjacent corner buildings due to the two storied design grid on its facades;
· This design along with the excessive height is considered to contravene the design objectives of the DCP;
· The appearance of a blank wall on the rear tower facing the rear units of 37-38 East Esplanade and 39 East Esplanade are considered to result in a severe loss of amenity;
· One objector refers to the walls as “…the dark satanic mills of 19th century England” and seeks a redesign (incorporating `relieving features') and more sympathetic setbacks for the side walls;
· The proposed setbacks are considered to contribute to the appearance of an oppressive density at the rear of all the surrounding buildings;
· In particular, loss of amenity to 22 Darley Road is a concern as well as ventilation and air circulation being impeded leading to potential pollution air and fire hazards;
· Loss of sea breeze due to the close proximity of the proposed development;
· Development is too close to the neighbouring properties in East Esplanade resulting in the appearance of an oppressive density at the rear of all surrounding buildings;
· Additional side setbacks are sought;
· Noise during construction and later noise is raised as a problem by adjoining occupants;
· Non-compliance with the DCP in respect of floor space ratio and height and resulting loss of property value and amenity;
· The non-compliances are also considered to reflect an over-development of the site;
· Neighbours do not agree with the applicant's submission that public transport services are likely to minimise private car use;
· The anticipated traffic generated by the proposed development is considered to likely cause severe additional stress on the already overloaded infrastructure with profoundly detrimental effect on the community and the environment;
· Pedestrian safety on the Wentworth Street footpath is a concern due to the design of the proposed entrance to the basement parking levels;
· Additional traffic congestion and failure to address existing safety concerns and problems with existing delivery vehicles to Coles, buses and general car use;
· The impacts of Council's recent approval at 29-34 East Esplanade are also noted in relation to current traffic congestion and capacities;
· One resident considers that the additional traffic flows would make Wentworth Street the most congested in Manly;
· The proposed density is considered excessive with an additional 36 units resulting in a tenfold increase on the local infrastructure;
· It is considered that too many units are proposed to maximise profits;
· Residents at 35-36 and 37-38 East Esplanade raise concern that an apparent long term pedestrian right of way through 2-4 Wentworth St would be removed (it is noted that this access is particularly beneficial to older residents who use it to access the new Coles;
· An exiting right-of-way easement for the owners of 22 Darley Road is being built upon disadvantaging the objector;
· The size of proposed units is considered excessively small and described as `pigeon-hole' living conditions;
· An approval would be considered inconsistent with Council's previous refusal of development over 15m in height at 1-3 Wentworth Street; and
· Similarly, objectors state that a sixth floor was also sought at 6 Wentworth Street/10 Darley Road and was refused.

The council’s decision
26 By notice dated 28 January 2003 the council refused the application for the reasons reflected in the issues.

The hearing
27 The appeal was filed on 22 August 2002 prior to the council determining the application.
28 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr R S Hoddinott, of No 284 Victoria Avenue, Chatswood and part owner of commercial and residential properties at Nos 1, 6, 11 and 12/35-36 East Esplanade, No 25/37- 38 East Esplanade; No 7/35- 36 East Esplanade;
· Ms S D Morgan, of No 25/2 Spruson Street, Neutral Bay, owner of No 10/ 37 Esplanade Level 3 Exhibit 8 Fols 25 and 53;
· Mr G Raynor, resident of No 3/5 –7 Victoria Parade, Manly Exhibit 8 Fol 13 Vol 2;
· Ms J Larracy, resident of No 6/35-36 East Esplanade, Manly Exhibit 8 Fol 8 Vol 2;
· Ms M Cullen, resident of No 5/35-36 East Esplanade, Manly Exhibit 8 Fol 7 Vol 2;
· Mr P A Christmas, town planner of Manly Council Exhibit 6;
· Ms A M Nichols, resident of No 29/10 Darley Road, Manly Exhibit 8 Vol 2 Fol 50;
· Mr R A McDonald, resident of No 1/3 Lawson Street, Neutral Bay;
· Mr M Biddulph, architect Exhibit 14;
· Dr V Papadakis, resident of Earl Street, Earlwood, owner No 17/5 Wentworth Street, Manly Exhibit 8 Vol 2 Fol 9 .
· Mr J La Cava, of Harbord Road, Harbord Exhibit 8 Vol 2 Fol 14, owner of several units nearby; and
· Mr K Ketheesuran, engineer of Manly Council Exhibit 15.

29 On behalf of the applicant evidence was given by:
· Professor G E Roberts, architect Exhibits L and T ;
· Mr N F Byrne, architect; and
· Mr N Ingham, town planner Exhibit H and R .

The issues
31 On 30 January 2003 the council filed a statement of issues:

Visual Bulk
1. The visual bulk of the proposed development would be unacceptable when viewed from adjoining properties and Wentworth Street.

Floor Space Ratio
2. The proposed development is contrary to Council's objectives "to introduce floor space ratio controls in order to provide firm guidelines as to the potential development of a centre and an individual site" (Preliminary part D: Objective 5, Manly Development Control Plan for the Business Zone 1989 (Amendment 3) ("the Business Zone DCP").
3 deleted
4. The proposed development does not comply with the maximum 2:1 FSR control for residential uses contained in the Business Zone DCP - Part 1 paragraph 1.1.2. The proposed residential development has a gross floor area of 3243 square metres resulting in an FSR of 2.72:1.

Setbacks
5. The proposed development is contrary to Council's aims and objectives "To introduce building heights, setback and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality" - Preliminary Part D: Objective 6. The proposal provides inadequate or nil setbacks and would be inconsistent with the setbacks of nearby and adjoining buildings which have greater setbacks particularly at the upper floors.
6. The nil setbacks and minimal proposed setbacks are unacceptable particularly in terms of the impact on the amenity of adjoining residential properties in terms of visual bulk, overshadowing privacy and loss of views.
7. The proposed development does not (contrary to Part 1 paragraph 1.3.3 of the Business Zone DCP) comply with the setback provisions of Manly Development Control Plan for the Residential Zone 2001 ("the Residential DCP"). The objectives for setback in the Residential DCP at paragraph 3.5.1 include the provision of privacy, the provision of equitable access to light and sunshine, the preservation and enhancement of the existing streetscape and view sharing. The principle of increased setback as wall heights increase should be incorporated in this proposal.

Height
8. The proposed development does not comply with the maximum 15m height control contained in Part 1 paragraph 1.2 of the Business Zone DCP. The proposed development exceeds the height limit by up to 3.4 metres.

Streetscape
9. The proposed development would have an unacceptable impact on the streetscape particularly as a result of the proposed bulk, lack of setbacks and height.

Design
10. Whether the proposed plant room satisfies Part 1 paragraph 1.2.2 of the Business Zone DCP. The plant room should be designed as an integral part of the building.

Overshadowing and Loss of Light
11. The proposed development would result in significant overshadowing to adjoining properties particularly 35-36 and 37-38 East Esplanade, Manly (particularly during 9am and 12pm periods at Winter solstice) and 3-5 Victoria Avenue (sic), Manly (at 3pm Winter solstice). 10 Darley Road, Manly would also be significantly affected by loss of natural light.

Privacy
12. The proposed development would result in a loss of privacy to adjoining properties particularly 35-36 East Esplanade and 10 Darley Road due to the proximity of balconies to common boundaries. This impact is unacceptable particularly in relation to existing balcony and window setbacks in the locality.
13. There would be insufficient privacy for the residents of the proposed development particularly the units at the rear of building 2.

Loss of Views
14. The proposed development would result in loss of views particularly to residents at 3 and 5 Wentworth Street who have district views to the south including the St Patrick's building landmark and neighbours at the rear of 35-36 and 37-38 East Esplanade, Manly who enjoy ocean views from higher floors.

State Environmental Planning Policy 65

15. Whether the proposed development fully adheres to the design quality principles outlined in State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings ("SEPP65")

16. Whether the provisions of the Better Urban Living - Guidelines for Urban Living in NSW (referred to in SEPP65) are complied with particularly in relation to:

a.

Setbacks - pp 20 and 21;

b.

Height - pp 22 and 23;

c.

Residential building types - pp 24 and 25;

d.

Site design - p 26;

e.

Site analysis - pp 27 and 28;

f.

Communal and Private open space - pp 29 and 30

g.

Visual privacy - pp 31 and 32;

h.

Landscape - pp 35 and 36;

i.

Energy Efficiency - pp 40 and 41;

j.

Apartment layouts - pp 49 and 50;

k.

Balcony - p 53;

l.

Roof - p 54.

m.

Recreational facilities - p 58

n.

Site facilities - pp 62 and 63; and

o.

Daylight access - p 45

Trees and Landscape Quality
17. Whether adequate regard has been given in the application to the landscape quality and character from the streetscape and general locality. The failure to provide any landscaped area fronting Wentworth Street and the removal of two large canopy trees towards the south eastern corner of the site is not considered appropriate in terms of the existing landscape quality and character of the streetscape and the area generally.
18. The proposed development would result in the removal of two large on site trees, which significantly contribute to landscape canopy in the locality. Further, a street tree would need to be removed.

Parking, Access and Loading etc
19. The proposed design does not include any loading docks contrary to Part 1 paragraph 1.5 of the Business Zone DCP.
20. Stacked parking is proposed for some of the parking spaces and is considered inappropriate.
21. There is no accessible path of travel between the disabled parking and an accessible entrance to the building as per the requirements of AS 1428.1.
22. The proposed development requires the relocation of an existing power pole on the street to allow access to the driveway.

Manly Local Environmental Plan 1988

23. The proposed development does not comply with the provisions of Manly Local Environmental Plan 1988 and in particular:

a)

the aims and objectives at 3(1)(e) and (j);

b)

zone no. 3 objective 1(a).

c)

clause 13 of the adopted Model Provisions (p 66 of the LEP)

Manly Town Centre Urban Design Guidelines 2002

24. The proposed development does not comply with the provisions of the Manly Town Centre Urban Design Guidelines 2002 and in particular:

a)

B5 objectives;

b)

paragraph 1.2.6 - Built form, scale and character;

c)

paragraph 2.1.4 - Built form, scale and character;

d)

paragraph 2.1.7 - Solar access and overshadowing;

e)

paragraph 2.1.9 - Building expression; and

f)

section 3.1.3 - Wentworth Street area.

Design Principles and Design for Townscape

25. The proposed development does not comply with the following provisions of the Business Zone DCP:

a) Preliminary Part F Design Principles;
b) Part 1 paragraph 1.4 Design for Townscape.

Objectors and Public Interest

26. Issues raised by objectors.

27. The circumstances of the case and the public interest.

28. Whether the development consent should be granted for the proposed development given that it would obstruct use of the right of way burdening the subject site and benefiting 22 Darley Road

The evidence and findings

Visual bulk; Height
33 The DCPAm3 has as one of its aims and objectives Exhibit 4 Preliminary D p 3 Aims and Objectives 6: DCPAm3 is called up by cl 30 of the SEPP65.: “…To introduce building heights, setback and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality.”
34 Under DCPAm3 Exhibit 4 Part 1 para 1.2.1 p 10; Building heights the maximum wall height of a building shall not exceed 15 metres except where:
(i) a lesser or greater height is specified on the height control map; or
(ii) a lesser or greater height provides a better relationship to adjoining development in terms of fulfilling the Council’s townscape objectives;
(iii) the Council agrees to the addition of plant rooms lift overruns, pitched roofs or the like.

(i)

the structures are designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives;

(ii)

any roof space is not designed or used as habitable space.

From Wentworth Street the visual bulk of the front facade, as a proportion of the street frontage is considered excessive. Whilst other developments provide some relief and reduction in bulk along the length of the frontage; the proposed frontage continues at the front boundary at a height of over 15m for the full length of the street frontage.

The visual bulk of the proposed development from the [specified] properties and Wentworth Street is considered unacceptable in terms of the context and siting of neighboring properties; and has a detrimental effect in terms of local amenity.

The visual bulk of the proposed development as viewed from adjoining properties is particularly exacerbated by the predominantly nil side setbacks and the side setbacks are considered to have a significant impact on the bulk and scale of the proposed development.

In regard to the issue of visual bulk, it is my opinion that the proposed development has been designed to be in sympathy with and in proportion to the height of adjoining and adjacent buildings and to fit in with the character of the locality so that it does not stand out or detract from the built form character of this part of Wentworth Street. The proposal will unify and enhance the streetscape…

Its height relates well to the neighbouring buildings fronting onto Wentworth Street, and its height is less than the height of the buildings, which surround and overlook it on the other three sides. In my opinion it will contribute to the achievement of a consistent and coherent townscape appropriate to the locality.

Visual bulk; Setbacks
44 Under DCPAm3 Exhibit 4 Part 1 para 1.3 p 11; Setbacks all buildings in the Manly Town Centre are to be constructed to the public road alignment and to the side boundaries of the allotment except where the principles of the RDCP apply and reference in that regard is made to Attachment 2 to the DCPAm3.
45 The objectives for setbacks in the RDCP include Exhibit 4 Attachment 2 para 3.5.1 p 45:
a. To preserve and enhance the existing streetscape;
b. To provide privacy;
c. To provide equitable access to light and sunshine;
d. To promote flexibility in the siting of buildings;
e. To enable view sharing;
f. …
g. … and
h. To maintain adequate space between buildings to protect views and vistas from public places.
46 The proposal is for a nil setback adjoining Nos 10 and 22 Darley Road on the northeastern side setback, (except small setback area at the eastern corner of building 1 at levels 3 and above). The height of the parapet at this setback is 15.695 Exhibit A: DA13C East elevation: 1.0m added to the level of the third floor at 14.695m and the level of the terrace above the car parking level at No 10 Darley Road is 9.210m and 10.210m to the parapet level surrounding the terrace Exhibit A: DA10C North elevation building 1. For someone of average height standing on the terrace with eye height of 1.6m, the inset of the proposal would be around 4.8m above. The roof parapet would be at 21.316m Exhibit A: DA13C East elevation. The gap between the two buildings is shown in perspective looking upwards, and indicates the amount of sky that would be seen from the viewpoints at each level of No 10 Darley Road near the proposal Exhibit AB: Views taken from middle of balcony off middle unit in 10 Darley Road; and views taken from bedroom window off north westerly unit in No 10 Darley Road.
47 During the hearing evidence was given concerning the relationship between the proposal and No 10 Darley Road. Mr Christmas supported the council’s rejection of the application on this ground and stated Exhibit 6 p 17 and 18:

The proposed development is considered to be an overdevelopment of the site with particular regard to the proposed setbacks in relation to adjoining properties. A consistent and coherent townscape is not considered to be achieved with particular regard to the predominantly nil setbacks proposed and the established siting and setback of all six (6) buildings surrounding the site.

In view of the nil or minimal proposed setbacks and the established setbacks of adjoining buildings, I consider that the significant disparities in setback create inappropriate visual bulk and inappropriate amenity effects.

…the relationship between the existing building on the site and No 10 Darley Road creates a privacy problem which is overcome by the proposed development.

It is my opinion the proposal represents an improvement in terms of privacy from the existing three storey flat building which has a number of windows on the north eastern façade which directly face the existing units and balconies of No 10 Darley [Road].

As previously stated, from the third floor, the rear part of the proposed northern building has bee setback approximately four metres off the boundary to increase the separation and improve sunlight penetration to the southern units of the adjoining mixed-use development.

It is my opinion that the proposed setbacks are adequate for this town centre site and ensure that appropriate levels of residential amenity are maintained to the adjoining mixed-use development.

I consider the setbacks provided to be adequate and the proposed building to be an entirely appropriate infill building in the streetscape and urban design context of Wentworth Street.

“badly worded”

“…the total appearance of a locality and contributes to its character. A high level of townscape quality will result in an areas being experienced, not as a number of disconnected parts, but as a whole, with one recognizable areas leading to another.”

Solar access;
54 Under the provisions of the BULG relating to communal and private open space Exhibit 7 pp 29 -30, Mr Christmas considered the provision and dimensions of the proposed open space and solar access to be inadequate. In particular, he considered the 9m wide communal open space, at the ground floor, enclosed by the two buildings, would be significantly shadowed throughout the year. He added that given the significant number of units with a southerly aspect, access to sunlight is considered to be inadequate.
55 Mr Biddulph was of the opinion that many of the units would not receive adequate solar access and Exhibit 14 p 7:

A wider courtyard would improve privacy, solar access and enhance the quality of the landscaped courtyard.

The principle of providing three hours of solar access to the living areas of dwellings at the winter solstice is the same control set down for buildings in the residential zone. In higher density areas, such as the Manly Town Centre, this generally is an ideal rarely able to be achieved in practice. The general height of buildings of 15 metres results in a shadow length of 45 metres at 9.00am and 3.00pm in midwinter. In the Town Centre it is not reasonable to consider building separation of anything like this distance. The achievement of three hours of solar access at the winter solstice is therefore an aim but is generally unrealistic.

Furthermore, with some southeast facing units, it is not possible to achieve good sunlight penetration into the units.

Internal amenity;
58 Mr Biddulph stated that Exhibit 14 p 7:

If the proposed development came closer to compliance with the issues in contention in the Better Urban Living document, (BULG) and those associated SEPP65 Design Quality Principles and complied more closely with the numeric standards for development as set out in the DCP the “problems” that can be faced with residential infill would be alleviated. For example:

1. fewer apartments could be proposed and slightly more generous in some cases more private open space be provided;
2. side setbacks could be cleverly designed to catch outlook and skylight in the NW/SE axis and protect amenity enjoyed by neighbours;
3. the units could be single stacked in each building, while still utilising the double height space in apartments. Wholly south/east facing apartments could be removed;
4. a wider courtyard would improve privacy, solar access and enhance the quality of the landscaped courtyard;
5. internal apartment storage could be provided; and
6. garbage could be taken to the street via an external passageway rather than through main foyer.

The proposal has been adequately designed to ensure the amenity on the site and at surrounding sites, because of the natural ventilation, access to light and air, efficient layout and access for all age groups. Outdoor space is principally provided in nearby public spaces. It is my opinion that the proposal satisfies Principle 7 of SEPP65.

In architectural terms the proposed building is attractive and well designed. The internal planning is functional and will provide a high standard of accommodation. The apartments vary in size and form, and the ventilation of and the penetration of light into those which rise through two levels will be of a particularly high standard. The proposed landscaping, the car parking and storage arrangements will all contribute to the achievement of a level of amenity appropriate to a block of well-designed residential apartments in the Manly Town Centre.

Environmental Planning and Assessment Act 1979

“visual space”.

“Republic”

Other matters
68 A loading dock is an option under the DCPAm 3 Exhibit 4 Part 1 para 1.5 p 12 and the MLEP incorporates model provisions and requirement in commercial zones for loading and unloading facilities Exhibit 11 cl 13(1) p 72: Subject to this clause, the consent authority shall not consent to the erection or use of any building on land zoned for commercial or industrial purposes unless provision is made within the site area for loading and unloading facilities satisfactory to the consent authority..
69 To my mind, the balance between providing a loading area off the street at ground floor level and providing an active street frontage is tipped in favour of the active street front Exhibit 4 Part 1 Manly Town Centre p 9: …shopfronts at street level and footpath awnings..
70 The land is mid block and has a frontage of 25.34m. I have carefully considered the evidence of Mr Ketheesuran, the council’s engineer who put the case most strongly, against the evidence of Mr Ingham and others for the applicant. The active frontage would occupy about 14.5m or 57% of the frontage Exhibit A Ground floor plan No DA03C, to reduce it below that figure would be detrimental to the streetscape. The need for the loading bay is questionable given the largely residential use of the proposal.
71 Mr Ingham said in respect of the commercial space:

…the intention is for the existing tenants on the site to relocate within the new building. These tenants do not have a loading dock available to them at the present time and do not need a loading dock to undertake their business satisfactorily. The tenancies are relatively small in area and with no need for loading docks. The Council’s Town Centre DCP suggests that a loading dock may not be necessary for commercial uses (See Section 1.5.4). In practical terms, the provision of one would be inappropriate and unnecessary.

“quite feasible”

“…would be detrimental to the streetscape.”

“I think that it would be difficult [to provide one] in a building of this width.”

“…does not justify an on-site loading dock”

Conditions
80 The conditions are those in Exhibits 23 and Y as amended. I have deleted the council’s proposed deferred commencement condition and in lieu Condition 126, which is agreed to by the applicant, will apply:

Prior to the issue of any construction certificate authorising construction or development which would affect use of the right of way burdening 2-4 Wentworth Street, Manly and benefiting 22 Darley Road, Manly, written evidence must be provided to the Council that the right of way has been extinguished or modified such that the proposed development does not obstruct use of the right of way as modified.

Orders
81 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 288/02 lodged with the respondent council on 4 July 2002 to demolish the existing buildings on the land and to erect a mixed use building for residential and commercial use originally containing forty four (44) units over six (6) storeys, amended thirty five (35) residential units and two (2) commercial units over five (5) storeys at Nos 2- 4 Wentworth Street, Manly, comprising Lots X and Y in DP 163875 and SP 19956 is approved subject to conditions No 1 to 126, attached in Annexure A.

3. The exhibits with the exception of Exhibits A, B, C, D, E, F and 3 are returned.

Commissioner of the Court

MODIFICATION APPEAL

Appeal No 10542 of 2002A

The Court orders by consent that:

1. The appeal under s 96 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development consent No 288/02 granted by the Court on 6 March 2003 in respect of a development application to demolish the existing buildings on the land and to erect a mixed use building for residential and commercial use originally containing forty four (44) units over six (6) storeys, amended to thirty five (35) residential units and two (2) commercial units over five (5) storeys at Nos 2- 4 Wentworth Street, Manly, comprising Lots X and Y in DP 163875 and SP 19956 is modified subject to conditions No 1 to 126, attached in Annexure B.

3. The exhibits with the exception of Exhibits A, B, C, D, E, F, AA, AG, AK, AL, AM, AN, AO, 3 and 31 are returned.

Land and Environment Court of New South Wales

Appeal No: 10542 of 2002 A

Conditions of development consent

Annexure B

Adjani Corporation Pty Limited

v

Manly Council

2-4 Wentworth Street, Manly

1. This approval relates to the following drawings subject to the following conditions:

(a) The following drawings prepared by SDA International Pty Ltd:

· Drawing Index being drawing WD0001 issue D dated 29 April 2004;
· Site Plan Demolition Plan being drawing WD0101 issue D dated 29 April 2004;
· Basement 2 Plan being drawing WD1101 issue D dated 29 April 2004;
· Basement 1 Plan being drawing WD1102 issue D dated 29 April 2004;
· Ground Floor Plan being drawing WD1201 issue D dated 29 April 2004;
· Level 1 Plan being drawing WD1301 issue D dated 29 April 2004;
· Level 2 Plan being drawing WD1302 issue D dated 29 April 2004;
· Level 3 Plan being drawing WD1303 issue D dated 29 April 2004;
· Level 4 Plan being drawing WD1304 issue D dated 29 April 2004;
· Level 5 Plan being drawing WD1305 issue D dated 29 April 2004;
· Roof Plan being drawing WD1401 issue D dated 29 April 2004;
· North Elevation (Building 1) being drawing WD1501 issue D dated 29 April 2004;
· South Elevation (Building 1) being drawing WD1502 issue D dated 29 April 2004;
· North Elevation (Building 2) being drawing WD1503 issue D dated 29 April 2004;
· South Elevation (Building 2) being drawing WD1504 issue D dated 29 April 2004;
· East Elevation being drawing WD1505 issue D dated 29 April 2004;
· West Elevation being drawing WD1506 issue D dated 29 April 2004;
· Section A building 1 & 2 being drawing WD1601 D dated 29 April 2004;
· Section B building 1 & 2 being drawing WD1602 issue D dated 29 April 2004; and
· Section C building 1 & 2 being drawing WD1603 issue D dated 29 April 2004.

2. The development shall be provided with access and facilities for people with disabilities in accordance with Australian Standard 1428.2-1992 Design for Access and Mobility Part 2: Enhanced and Additional Requirements (AS1428.2).

3. Access in accordance with AS1428.2 shall be provided to and within the main entrance and exit points of the development in accordance with the Manly Development Control Plan for Access.

4. Access in accordance with AS4299 - Adaptable Housing shall be provided to at least one unit in the development. Details shall be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate.

Note: Within two-storey development provision shall be made to allow the later installation of a stair lift.

5. At least one unisex sanitary facility designed in accordance with AS1428.2 shall be provided in all new or refurbished buildings and car parking stations, which provide public sanitary facilities. Details shall be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate.

6. A minimum of one car space for the vehicles of people with disabilities in all new or refurbished buildings which provide between 10 and 50 car parking spaces, 2 for those which provide between 50 and 100 car spaces.

The car spaces shall be identified and reserved at all times and be in the vicinity of lift or as close as possible to public areas and facilities. The car spaces shall have minimum dimensions of 3.2m x 5.5m and one space shall have a minimum headroom clearance of 2.5m for use by vehicles fitted with a roof mounted wheelchair rack. A notice shall be displayed at the entrance to the parking station and at each change in direction indicating the location of car spaces and the maximum headroom for vehicles. Details shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate .

7. Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory or wherever directional signage or information is provided to those buildings where access and facilities have been provided. Such signage shall have regard to the provisions of AS1428.2.

8. Details of the builder's name and licence number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate.

9. 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 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets.

10. Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer's details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.

11. No person shall use or occupy the building or alteration, which is the subject of this approval without the prior issue of an Occupation Certificate.

12. A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24-hour contact details. The sign is to have dimensions of approximately 500mm x 400mm.

Note: The sign is not required if the building on the site is to remain occupied during the course of the building works.

13. All construction works shall be strictly in accordance with the Reduced Levels (RLs) to the satisfaction of the Principal Certifying Authority to AHD standard and evidence that the approved levels will be achieved shall be provided by a statement certified by an appropriately qualified person prior to the issue of the Construction Certificate.

14. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act, which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position, which may involve a survey to identify the allotment boundary.

15. Natural lighting and ventilation shall be provided to the proposed room(s) by means of windows of a size and design to comply with the requirements of the Building Code of Australia.

16. All artificial lighting shall be provided in accordance with the requirements of the Building Code of Australia.

17. Ventilation to all areas of the building shall be in accordance with the requirements of the Building Code of Australia.

18. A schedule of noise transmission and insulation qualities of walls, floors and services of the proposed building complying with the requirements of the Building Code of Australia shall be submitted and approved by the Certifying Authority prior to the issue of the Construction Certificate.

19. Four (4) certified copies of the Structural Engineer's details in respect to the structural details of the proposed building shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

20. Four (4) certified copies of the Structural Engineer's details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

21. Where any excavation extends below the level of the base of the footing of a building on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia.

22. The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licensed applicator prior to the fixing of any wall or floor tiles.

23. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.

24. The implementation of adequate care during demolition, excavation, building and construction to ensure that no damage is caused to any adjoining properties.

25. Mechanical ventilation being provided to the basement levels 1 and 2 in accordance with the relevant provisions of Clause F4.5 of the Building Code of Australia.

26. Certificate(s) from a professional Engineer or other appropriately qualified person is to be submitted which certifies that material, design and/or form of construction complies with the requirements of Clause A2.2 of the Building Code of Australia.

27. Stairways shall comply with the geometry and construction requirements of Part 3.9.1/Clause D2.13 of the Building Code of Australia.

28. The balustrades appurtenant to all balconies and stairways shall comply with Part 3.9.2/Clause D2.16 of the Building Code of Australia. (Note: A minimum height 1m and restriction of openings - not more than 125mm)

29. In a Class 2 building containing more than 10 sole occupancy units, a closet pan and wash basin in a compartment or room at or near ground level for the use of employees must be provided in accordance with F2.1 of the Building Code of Australia. Details shall be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate.

30. All stairs and landings are to be constructed in accordance with Clause D2.3 of the Building Code of Australia.

31. Mechanical Engineer’s details in respect of mechanical ventilation or air conditioning systems for the purpose of complying with F4 of the Building Code of Australia are to be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate.

32. An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.

33. Building work shall not progress beyond first floor level until such time as Registered Surveyor’s details of levels are submitted to the Principal Certifying Authority. These levels shall confirm that the works are in accordance with the levels shown and approved in the development approval.

34. On completion of the building structure a Registered Surveyor’s report is to be submitted to the Principal Certifying Authority confirming that the building has been completed in accordance with the levels as shown on the approved plan.

35. A Registered Surveyor’s certificate identifying the location of the building on the site is to be submitted to the Principal Certifying Authority immediately upon completion of the foundations and prior to work proceeding above damp course level.

36. Each level of the building, at completion of construction of the external walls, is to be certified by a Registered Surveyor as complying with floor area calculations with certificate from the Registered Surveyor being submitted to the Principal Certifying Authority.

37. Four (4) Architectural/Services Specifications are to be submitted with the Construction Certificate application/prior to the issue of the Construction Certificate.

38. All external cladding and trim of the approved building shall be of a non-reflective nature. Details of such finishes shall be submitted with the Construction Certificate Application.

39. All plumbing and drainage, including stormwater, sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building.

40. The basement area shall be provided with adequate natural or mechanical ventilation.

Note : (i) Council favours natural ventilation and if the area is to be ventilated in this manner, the applicant should confer with an appropriately qualified person prior to the preparation of plans regarding the extent of permanent openings required. In addition, details accompanying the Construction Certificate Application should have regard to the relevant provisions contained in Australian Standards 1668, "SAA. Mechanical Ventilation and Air Conditioning Code", and also be accompanied by a certificate from an Aerodynamics Consultant stating that the area in question will be adequately ventilated.

(ii) Where mechanical ventilation is required to be provided, mechanical ventilation engineers details which conform with Clause F.4.11 of the Building Code of Australia made under the Local Government Act and Australian Standard AS.1668 are required to be submitted to the Principal Certifying Authority in conjunction with the Construction Certificate Application.

41. A system of onsite stormwater detention shall be provided within the property in accordance with Council's specification. Details shall be submitted with the Construction Certificate Application and be approved prior to the issue of the Construction Certificate.

42. All demolition is to be carried out in accordance with AS2601-1991.

43. In relation to the demolition of the existing building on the site:

(i) A report is to be submitted to the Principal Certifying Authority detailing whether any hazardous materials exist on the site. (eg. lead in paints and ceiling dust or asbestos). NOTE: If no hazardous materials are identified, the demolition may proceed in accordance with the following conditions including dust control and WorkCover requirements.

(ii) Should any hazardous materials be identified, as per item (1), a Work Plan shall be submitted to Council in accordance with AS2601-1991 - Demolition of Buildings. The report shall contain specific details regarding:

(a) The type of hazardous material;

(b) The level or measurement of the hazardous material in comparison to National Guidelines;
(c) Proposed methods of containment; and
(d) Proposed methods of disposal.

(iii) Where high levels of lead are found in premises to be demolished, Item (ii) should be followed, and a NATA Registered Laboratory should test the soil sample from site before and after demolition. This will determine whether remediation of the site is necessary.

(iv) The demolition must be in accordance with AS2601-1991.

(v) Any asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.
(vi) All work involving lead paint removal must not cause lead contamination of air or ground. Particular attention must be given to the control of dust levels on the site.

44. A Fire Safety Schedule specifying the fire safety measures (both current and proposed) that should be implemented in the building premises shall be submitted with the Construction Certificate application, in accordance with Part 9 Clause 168 of the Environmental Planning and Assessment Regulation 2000.

Note: A Construction Certificate cannot be issued until a Fire Safety Schedule is received.

45. The building being erected in Type A construction for a Class 2,5&7 building in accordance with the Fire Resistance Provisions of the Building Code of Australia.

46. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

47. All openings in the building shall be protected in accordance with the requirements of the Building Code of Australia.

48. Provision shall be made for escape from the building in accordance with the requirements of the Building Code of Australia.

49. All fire fighting equipment, smoke control provisions, lift installations, emergency lighting, exit signs, warning systems and maintenance shall be in accordance with the requirements of the Building Code of Australia.

50. All requirements of the NSW Fire Brigades for the building shall be complied with in accordance with the requirements of the Building Code of Australia.

51. The space below a flight of stairs of a non-fire-isolated stairway (including an external stairway) serving as a required exit shall not be enclosed to form a cupboard or other enclosed space unless -

(a) the enclosing walls and ceilings have a fire-resistance level of not less than 60/60/60; and
(b) any access doorway to the enclosed space is fitted with a self-closing fire door having a fire-resistance of not less than 60/60/30.

52. The walls of the stair shaft having a Sound Transmission Class of not less than 45 and being constructed in accordance with the relevant provisions of Part F5 of the Building Code of Australia.

53. The walls dividing bathrooms, laundries and kitchens in sole occupancy unit from habitable rooms in an adjoining sole occupancy unit having a Sound Transmission Class of not less than 50 and being constructed in accordance with the provisions of Part F5 of the Building Code of Australia.

54. Soil and waste pipes, including those that pass through a floor, shall be separated from the rooms of any unit immediately adjacent thereto by construction having a Sound Transmission Class in accordance with Part F5 of the Building Code of Australia.

55. Any wall that separates Sole Occupancy Units is to achieve a Sound Transmission Class of not less than 45.

56. All sound producing plant and equipment being installed and operated in such a manner so as not to create a noise nuisance.

57. (a) An exit doorway is to be provided having a clear opening of not less than 2000mm in height and not less than 750mm in width to fire stairs in accordance with the relevant provisions of Clause D 1.6 of the Building Code of Australia.

(b) The exit door shall swing in the direction of egress (unless serving a building or portion of a building not more than 200m2, it is the only required exit in the building, and is fitted with a magnetic, mechanical or other similar automatically operated device which is capable of holding the door in the open position).

(c) The exit door shall be readily openable:

(i) without a key; and
(ii) by means of a single hand downward action or pushing action (ie. not a knob) on single device which:-

A. is located between 900mm and 1,200mm above the floor; and
B. does not comprise a bolt or padlock or a separately operated deadlock,
from the side that would face any person seeking egress from the building.

NOTE: Any person who AT ANY TIME contravenes this condition is guilty of an offence and liable to a penalty of $1,000.00.

58. Illuminated exit and directional exit signs are to be provided throughout the building in accordance with the provisions of Clauses E 4.5, E4.6 and E4.8 of the Building Code of Australia. An electrical layout indicating the location of exit and directional signs is to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

59. An emergency lighting system is to be provided throughout the building in accordance with the provisions of Clause E 4.2 and E4.4 of the Building Code of Australia. An electrical layout indicating the location of emergency lighting is to be submitted to the Principal Certifying Authority.

60. The entry doorways to each sole occupancy unit being provided with self-closing doors having a fire resistance level of -/60/30 in accordance with the relevant provisions of Clause C 3.11 of the Building Code of Australia.

61. The electrical meter distribution board/telecommunication gear/motor located in the exit/path of travel being enclosed by non-combustible construction or a fire protective covering with doorways or openings suitably sealed against smoke spreading from the enclosure.

A fire-protective covering means :
(a) 13mm fire protective grade plasterboard;
(b) 12mm cellulose fibre reinforced cement sheeting complying with AS 2908.2;
(c) 12mm fibrous plaster reinforced with 13mm x 13mm x 0.7mm galvanised steel wire mesh located not more than 6mm from the exposed face; or
(d) any other material not less fire-protective than 13mm fire-protective grade plasterboard,
fixed in accordance with the normal trade practice for a fire-protective covering.

62. Hose reels are to be installed within the building in accordance with the requirements of Clause E 1.4 of the Building Code of Australia.

63. Hydrants are to be installed within the building in accordance with the requirements of Clause E 1.3 of the Building Code of Australia.

64. Portable fire extinguishers are to be installed throughout the building pursuant to Clause E 1.6 of the Building Code of Australia and in accordance with Australian Standard 2444-1990.

65. A clear and unobstructed path of travel is to be provided to all required exit doors in the building, each being at least 1000mm wide (subject to an increase required by any other condition herein in relation to aggregate exit width) and 2000mm in height.

NOTE: The owner of a building who AT ANY TIME fails to keep a path of travel leading to a required exit, or a stairway, passageway or ramp serving as or forming part of a required exit clear of anything which may impede the free passage of persons is guilty of an offence and liable to a penalty of $1,000.00.

66. DELETE

67. DELETE

68. Doors within the path of travel to a required exit must have readily openable latches provided in accordance with D2.21 of the Building Code of Australia.

69. Exit signs are to be provided on doorways in accordance with Clause E4.7 of the Building Code of Australia.

70. Openings in the fire isolated stairway and the entrance doorways to all units are to be provided with self closing and latching fire doors with a fire resistance level of not less than -/60/30.

71. The lift installation is to comply with Part E3 of the Building Code of Australia.

72. The ceiling immediately below the roof having a resistance to the incipient spread of fire to the roof space between the ceiling and the roof of not less than 60 minutes as defined by Clause A1.1 of the Building Code of Australia except where all walls bounding the sole occupancy unit extend to the underside of a non-combustible roof covering.

73. The fire sprinkler valve room and booster pump are to be fire separated from the remainder of the building in accordance with Clause E1.3 of the Building Code of Australia.

74. Any air handling system installed in the building must comply with E2.2 of the Building Code of Australia.

75. The entire building is to be provided with an automatic smoke detection and alarm system in accordance with Specification E2.2A of the Building Code of Australia. Details are to be provided to the Principal Certifying Authority.

76. DELETE

77. The main switchboard must be located such that it is readily accessible to authorised persons and to the Fire Brigade and enclosed by construction having a Fire Resistance Level of not less than 60/60/60.

78. DELETE

79. Fire hose reels shall be located throughout to provide adequate coverage to all portions of the building in accordance with Clause E1.4 of the Building Code of Australia.

80. All vertical penetrations shall be sealed with a non-combustible material to assist in the prevention of smoke/fire migration from one level to another in accordance with Clause C3.14 of the Building Code of Australia.

81. The applicant’s attention is drawn to the Fire Resistance requirements for materials detailed in Specification C1.10 of the Building Code of Australia. In this regard the applicant shall advise all proposed tenants/owners that all materials in shop fitouts, including carpets, wall finishes and the like are to comply with the detailed provisions of this specification.

82. Entrance doorways to lifts and lift indicator panels in the walls of isolated lift shafts shall be protected in accordance with Clause C3.10 of the Building Code of Australia. Prior to occupation of the building, the applicant shall submit a certificate to the Principal Certifying Authority confirming that the required protection has been provided.

83. A sign warning against the use of lifts in a fire shall be displayed in a conspicuous position near every call button for each lift in the building in accordance with Clause E3.3 of the Building Code of Australia.

84. The following notice must be displayed in a conspicuous position at the landing on each storey of a fire-isolated stairway.

NOTICE: “OFFENCES RELATING TO FIRE EXITS”

By virtue of Clause 183 of the Environmental Planning and Assessment Regulation 2000, it is an offence to:-
a) Place anything in this exit, which may impede the free passage of persons.
b) Interfere with or cause obstruction or impediment to the normal operation of the doors providing access to this exit; or
c) Remove, damage or otherwise interfere with this Notice.

NOTE: the words “OFFENCES RELATING TO FIRE EXITS” should be in letters and figures of a height of 8mm or more. The remaining words in the notice should be in letters and figures of a height of 2.5mm or more.

85. A sign with the words -

“FIRE DOOR - DO NOT OBSTRUCT”

86. The carpark levels are to be provided with a system of mechanical ventilation in accordance with AS 1668.2 with details being submitted to the Principal Certifying Authority for approval prior to issue of the Construction Certificate.

87. Full details of the cooling towers, exhaust fan structures and other structures on the roof are to be provided to the Principal Certifying Authority prior to issue of the Construction Certificate.

88. Prior to the commencement of any works on the land including demolition and site preparation, provision of silt control fences shall be provided. A Sediment/Erosion Control detail shall be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

89. A Construction Certificate Application is required to be submitted to and issued by the Principal Certifying Authority prior to any building works being carried out on site.

90. The works require the following inspection/certification during the course of construction:

Drainage inspection

Final inspection

The cost of these inspections by Council is $653.84 (being $67.98 per inspection and $110.00 for Final inspection inclusive of GST) . Should you require Council to undertake the inspection/certification, then payment is required prior to the first inspection. Inspection appointments can be made by contacting the Land Use Management Group on 9976 1573 or 9976 1587.

At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $79.20.

91. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to occupation of the development.

92. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land.

The measures must include:
(i) siltation fencing;
(ii) protection of the public stormwater system; and

(iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

93. Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, magnesite flooring, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays.

Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

94. The construction of a vehicular footpath crossing is required. The design and construction shall be in accordance with Council's Policy. All works shall be carried out prior to issue of the Occupation Certificate.

95. The construction of a kerb layback is required. The design and construction shall be in accordance with Council's Policy. All works shall be carried out prior to issue of the Occupation Certificate.

96. The existing surplus vehicular crossing and/or kerb layback shall be removed and the kerb and nature strip reinstated prior to issue of the Occupation Certificate.

97. A single entrance is permitted to service the site for demolition and construction. The footway and nature strip at the service entrance shall be planked out.

98. Pursuant to Section 97 of the Local Government Act 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $15,000.00. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site.

Note : Should Council property adjoining the site be defective eg, cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site .

99. No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction.

100. Any adjustment to the public utility service is to be carried out in compliance with their standards and the cost is to be borne by the applicant.

101. Prior to excavation applicants should contact the various utility providers to determine the position of any underground services.

102. A system of onsite stormwater detention shall be provided within the property in accordance with Council's specification. Details shall be submitted with the Construction Certificate Application and be approved prior to the issue of the Construction Certificate.

103. A positive covenant in respect of the installation and maintenance of onsite detention works is required to be imposed over the area of the site affected by onsite detention and/or pump system prior to the issue of the Occupation Certificate for the building and prior to the release of the trust fund deposit.

104. The existing footpath shall be removed and replaced with full width block paving along the entire frontage of the property at the full cost of the applicant.

105. All site waters during excavation and construction shall be contained on site in an approved manner to avoid pollutants entering into the Harbour or Council's stormwater drainage system.

106. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land.

The measures must include:
(i) siltation fencing;
(ii) protection of the public stormwater system; and

(iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

107. In accordance with the Roads Act 1993, written consent from Council shall be obtained and shall be in hand prior to any track-equipped plant being taken in or onto any roadway, kerb & gutter, footway, nature strip, or other property under Council's control.

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

109. Payment of $128,479.05 for the 35 additional dwelling(s) in respect of the contribution for the provision of the public amenities and public services shall be in accordance with Section 94 of the Environmental Planning and Assessment Act 1979. Arrangements for such payment are to be made in accordance with Council’s policy, prior to issue of the Construction Certificate.

Daylighting

110. The colours and materials for the side boundaries of the proposed development are to be of a matt finish and within the reflection range of 40% to 60%. A copy of the final colours and materials are to be provided to Council 14 days prior to the issuing of the construction certificate.

Rear boundary screen

111. The rear boundary screen is to be of opaque glass and to a maximum RL of 10.14 being 1.5 metres above the grassed area on top of the garage for 35-36 East Esplanade. Details are to be provided with the final landscape plan, prior to issuing of the construction certificate.

Level 3 planter

112. The solid masonry balustrade around the non-trafficable roof adjacent to unit 115 shown on drawing WD 1303D is to be reduced to a height of 300mm.

113. All balconies directly adjoining living/dining areas, including the door track, (but not including the Juliet balconies), are to be flush, (or at the same RL) with the internal finish floor level including any door tracks and such balconies must have a minimum width of 1.5m. All doors off living/dining areas are to be top-hung bi-folding stackable doors. Details are to be approved prior to the issue of the construction certificate to the satisfaction of Council.

114. The lifts used in the building shall be capable of wheel chair access. The disabled parking bays shall be located close to the wheel chairs accessible lift. The drawings shall be suitably amended prior to the issue of the construction certificate.

115. The applicant shall arrange with the relevant authority/organisation to relocate the existing power pole in Wentworth Street to satisfy their standards. The cost is to be borne by the applicant.

116. Plans submitted with the construction certificate must demonstrate separate commercial from residential waste to the satisfaction of Council/ Accredited Certifier in accordance with Council’s DCP for Waste Minimisation and Management 2000.

117. DELETE

118. The number of bins is to be subject to final discussions with, and approval by Council’s Waste and Cleansing Manager. The number of bins will also be determined with regard to available space on the street for collection (Resource NSW).

119. Plans submitted with the construction certificate must demonstrate that the transport of garbage through the premises is in accordance with Council’s DCP for Waste Minimisation and Management 2000 to the satisfaction of Council/ Accredited Certifier.

120. Precautions are to be taken when working near the street tree to be retained in front of the property including prevention of damage to the tree and root system. In this regard appropriate protection measures are to be undertaken during construction. Should the tree be damaged during construction and require removal an advanced replacement tree minimum 200 litre size must be provided at the applicant’s cost in accordance with Council’s requirements.

121. Landscaping is to be provided in accordance with a final landscape plan to be prepared by a qualified landscape consultant and submitted to Council prior to the issue of a construction certificate to the satisfaction of Council’s Director or Planning, Design and Environment Group.

122. A qualified landscape consultant shall be retained for the duration of the landscape works and upon the satisfactory completion of the works and prior to the issue of an occupation certificate shall submit to the PCA a certificate of practical completion stating that the works have been carried out in accordance with the approved landscape plan.

123. Any rainwater pipes shall be concealed within the structure of the development (so they cannot be seen from outside).

124. All levels containing living rooms above ground to have minimum floor to ceiling heights of 2657mm. The maximum roof height for building No 1 is 24.530 AHD and for building No. 2 is 20.345 AHD.

125. The eastern parapet to the roof of building No 2 is to be setback to the west to improve solar access to the residential flat building at No 5 –7 Victoria Parade as shown on Drawing Nos DA40A and DA 43A.

126. Prior to the issue of any construction certificate authorising construction or development which would affect use of the right of way burdening 2-4 Wentworth Street, Manly and benefiting 22 Darley Road, Manly, written evidence must be provided to the Council that the right of way has been extinguished or modified such that the proposed development does not obstruct use of the right of way as modified.

S J Watts

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Citations

Adjani Corporation Pty Limited v Manly Council [2004] NSWLEC 337

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CITATION:	Adjani Corporation Pty Limited v Manly Council [2004] NSWLEC 337
PARTIES:	APPLICANT Adjani Corporation Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	10542 of 2002
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Residential flat building - Modification of consent
LEGISLATION CITED:	Manly Local Environmental Plan, 1988, (MLEP) - Manly DCP for the Business Zone 1989 (Amendment 3), (DCPAm3) - Manly Town Centre Urban Design Guidelines, (Guidelines) - State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings, (SEPP65) - Better Urban Living - Guidelines for Urban Housing in NSW SEPP65, (BULG) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	17/02/2003, 18/02/2003, 19/02/2003 and 20/02/2003 - 30/03/2004 commence modification appeal - 01/04/2004, 20/04/2004 mentions
DATE OF JUDGMENT:	06/23/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Tobias, QC with Mr I Hemmings, barrister, instructed by Mr G McKee, solicitor Mr G McKee, solicitor in modification appeal SOLICITOR McKees Legal Solutions RESPONDENT Ms C Schofield, solicitor SOLICITOR Pike Pike and Fenwick