Austcorp No 459 Pty Limited v Baulkham Hills Shire Council

[2004] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION:

Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 57

PARTIES:

APPLICANT
Austcorp No 459 Pty Limited

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10463 of 2003

CORAM:

Watts C - Bly C

KEY ISSUES:

Development Application :- Privacy
Over-development of site
User safety
Assessibility
Termite protection

LEGISLATION CITED:

Baulkham Hills Local Environmental Plan 1991, (BHLEP)
Environmental Planning and Assessment Act 1979; (EPA Act) ss 79C, 97
Disability Discrimination Act 1992 (Cth)

CASES CITED:

DATES OF HEARING:

18, 20, 21 and 29 August 2003 and 8, 9 and 10 December 2003

DATE OF JUDGMENT:

02/17/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M G Craig, QC, barrister instructed by
Mr R Wilcher, solicitor
of Baker & McKenzie

RESPONDENT
Mr P J McEwen, SC, barrister instructed by
Mr D Baird, solicitor
of Maddocks

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10463 of 2003

Watts C presiding with Bly C

17 February 2004

Austcorp No 459 Pty Limited
Applicant
v

Baulkham Hills Shire Council
Respondent

Judgement


Introduction
1 Appeal No 10463 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979, is against the deemed refusal by Baulkham Hills Shire Council (“the council”) of Development Application No 843/2003/HB to carry out certain works and for the use of the existing building at Lot 1 DP 1035154, being Nos 18-22 Campbell Street, Northmead as an apartment building.

2 The other aspect of this matter involves an application for a building certificate (proceedings No (1)0351 of 2002) which has not been pursued at this time, pending the completion of building works which cannot proceed until development consent has been granted. The Class 4 matter (proceedings No 40237 of 2001) is also in abeyance pending the outcome of this appeal.

3 We inspected the building and its environs in company with the parties on two occasions during the proceedings.

4 The Court has decided that the applicant be given the opportunity to amend the basement ramp so as to improve safety for pedestrians and to improve disabled access to the buildings.


The land
5 The land is situated on the southern side of Campbell Street, about 300m east of Windsor Road at Northmead. The land previously comprised Lots 16, 17 and 18 in DP 6436, which were consolidated and are now known as Lot 1 in DP 1035154. The land is irregular in shape with a frontage of 45.73m to Campbell Street, 93.695m along the western boundary and 64.275m along the eastern boundary and an area of 3,698m2. The land, falls from the Campbell street frontage to the rear with a cross fall of about 8m.

6 Erected on the land is a recently constructed part two-storey and part three-storey residential flat building. There is an extensive basement car park with a two-way ramp access off Campbell Street.


The surrounding area
7 The land is in an established residential area, which is undergoing change through the redevelopment of the existing single dwellings to medium density residential apartments and town houses.

8 To the west on the Campbell Street frontage at Nos 14-16 Campbell Street is a town house development, and an apartment development on the Windsor Road frontage at Nos 27-35 Windsor Road.

9 To the east at Nos 24-26 Campbell Street is an apartment building currently under construction.

10 To the rear of the land is a smash repairer.

11 Across Campbell Street, there are single-storey dwelling houses and at the eastern end of Campbell Street is Northmead High School, about 80m east of the land with a school population of about 740 mainly teenage students.

12 The dwellings nearby have hipped roofs with eaves.


Background
13 On 24-27 May 1999, in proceedings No 10007 of 1999, Senior Commissioner Jensen heard an appeal by Designlink International Pty Limited against a refusal of development application for an apartment building of twenty-six (26) units comprising 16 x 3 bed and 10 x 2 bed units by Baulkham Hills Shire Council at Nos 18-22 Campbell Street, Northmead. These plans showed the vehicular ramp to the basement with a section at the street alignment with a slope of 1:20 or 5% slope.

14 On 27 May 1999, Senior Commissioner Jensen upheld the appeal subject to (in part):


2. A deferred consent is given to a development ... as described in Exhibits 1, N and C . The deferral is to allow:


(a) an easement for drainage purposes to be obtained; and

(b) Minor corrections to be made to the drawings at the basement car parking level so that appropriate ramp gradients, headroom and staircase access to the ground floor level are shown.


15 On 8 September 1999, the Senior Commissioner's decision was appealed against under s 56A of the Court Act.

16 On 15 September 1999, his Honour Talbot J, found that the Senior Commissioner erred in law in granting deferred commencement and directed the matter be referred back to the Commissioner for determination in accordance with the findings in the s 56A appeal.

17 On 2 November 1999, Senior Commissioner Jensen upheld the appeal and granted development consent subject to conditions.

18 Condition Al of the development consent states:


1. The development is to be carried out substantially in accordance with the plans prepared by Designlink International and numbered 172-DA02 Rev C, 172-DA03 Rev C, 172-DA04 Rev C, 172-DA06 Rev F, 172-DA08 Rev D, and details prepared by McDivitt Gelder numbered SK01, SK02, SK03, SK04, SK05, and SK06 as further amplified by Exhibits E and F.

31. The ramp is to be constructed in accordance with AS2890.1 and the council’s code…

19 Condition 1 of the development consent states:

The development being carried out substantially in accordance with the approved plans and details submitted to Council, as amended in red, stamped and returned with this consent.

20 On 29 June 2000, Austcorp No 459 Pty Limited purchased the land from the following parties:


Folio Identifier 163/6436 from Arthur John Potts; and

Folio Identifier 173/6436 and 183/6436 from Gary Leslie West and Maureen Lesley West.


21 The applicant appointed Mr B Cohen of Essential Certifiers Pty Limited as a Principal Certifying Authority, (PCA) or private certifier. Mr Cohen issued a purported Construction Certificate (No 01/4121) dated 12 September 2000 and a Notice of Commencement of Building Work (indicating work to commence in October 2000) was lodged with the council.

22 The applicant lodged a subdivision application with the council on 26 October 2001 after the works were substantially completed. The plans accompanying the subdivision application allegedly depict a development different to that shown in the original plans, the subject of the consent. The plans are by Drummond and Rosen Architects, dated April 2000, and numbered as follows:

GA-01 issue A; GA-02 issue B; GA-03 issue A; to GA-13 issue A, inclusive.


23 By letter dated 9 November 2001, the council notified Austcorp No 459 that its subdivision application was refused on the basis that the development ‘as built’ was not in accordance with the development consent.

24 On 15 November 2001, an on-site visit by the council officers was undertaken in order to identify the inconsistencies with the development approved plans and conditions of consent and revealed significant differences between the buildings as constructed and as approved by the Court. The most significant differences relate to:


(a) the extension of an underground car parking level and omission of an entire car parking level;

(b) expansion of balconies on each of the two (2) buildings;

(c) construction of a substantial aboveground detention tank at the rear of the Site;

(d) changes to roof and appearance of the buildings including enlarged windows;

(e) rearrangement of the internal layout of apartments; and

(f) lack of swimming pool.

25 The council issued letters of demand dated 7 December 2001 to each of Essential Certifiers Pty Limited, Silky Constructions Pty Limited, Austcorp No 459, and Designlink requesting that unauthorised work cease immediately on the site, unauthorised works be rectified within 60 days, a construction certificate be obtained for the plans consistent with the development consent, and cease all activity relating to the marketing or sale of any units.

26 The applicant lodged an application to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 on 18 December 2001.

27 The council filed class 4 proceedings on 20 December 2001 seeking rectification or demolition orders.

28 Interlocutory Class 4 proceedings were heard before his Honour Bignold J, on 20 December 2001 and the application by the council for an injunction to stop work was refused.

29 On 7 June 2002, his Honour Cowdroy J refused the s 96 application and found:

…in the Court's determination such changes are so substantial that the completed building is not the same as that for which consent was granted by Senior Commissioner Jensen.


30 On 2 September 2002, the Court issued a costs order in favour of the council in respect of the s 96 Proceedings No 10007 of 1999.

31 On 16 May 2002, Building Certificate Application No 924/2002/AE was lodged with the council seeking to regularise the unauthorised building works (“the Building Certificate Application”).

32 The council issued a letter to the applicant dated 20 June 2002 requesting additional information in relation to the Building Certificate Application .

33 On 8 July 2002, Class 1 Appeal (No 40237 of 2001) was filed with the Land and Environment Court against deemed refusal of Building Certificate Application No 924/2002/AE.

34 On 30 August 2002, Development Application No 804/2003/HB for certain additional works and use of the property as an apartment building and was lodged with the council (“the Development Application”).

35 By letter dated 13 September 2002 to the applicant the council requested additional information under cl 54 of the Environmental Planning and Assessment Regulation 2000 in respect of the Development Application.

36 By letter dated 18 September 2002 to the applicant the council requested further information in relation to the Building Certificate Application.

37 In relation to the development application, the council received the following responses:

• On 30 December 2002, the council received a letter from the applicant dated 24 December 2002 accompanied by town planning consultant's letter dated 17 December 2002 in response to issues relating to car parking provision and car park layout raised in Council's letter dated 13 September 2002;
• On 2 January 2003, the council received a letter from the applicant dated 24 December 2002 accompanied by town planning consultant's report dated 18 December 2002 and amended plans in response to issues raised in Council's letter of 13 September 2002.

38 On 30 January 2003, the council wrote to the applicant advising that issues highlighted in the council's letter dated 13 September 2002 remained outstanding and providing additional comments in relation to the amended plans submitted on 2 January 2003.

39 On 13 March 2003, the council received a letter from the applicant dated 12 March 2003, enclosing a number of supporting documents and materials both in relation to the building certificate and development application for additional works and use of the premises.

40 On 24 April 2003, the present Class 1 Appeal No 10463 of 2003 was filed against deemed refusal of Development Application No 804/2003/HB.


Relevant planning controls

Baulkham Hills Local Environmental Plan 1991, (BHLEP)
41 The subject land is zoned Residential 2(al) under the provisions of the BHLEP and apartment buildings are permissible as ‘Advertised’ development, with consent.


The proposal and its history
42 Development Application No 804/2003/HB was lodged with the respondent council on 30 August 2002 to carry out certain additional works and use of the property as an apartment building. The proposed additional works were shown in the Schedule on Drawing No DA1.01A, as follows:


• The stairs within the building are to be amended to provide a minimum clear width of 1000mm, maximum riser height of 190mm and uniform riser heights;
• All door handles to egress doors to be to BCA standard;
• Obscure glass to be added to the windows as indicated on the plans and elevations to provide screening to adjoining properties and units opposite the central courtyard area;
• Mature planting to be added to eastern and western garden beds as indicated on the landscaping plans to provide screening to adjoining properties;
• Brick planter boxes to be constructed on the eastern ground floor balconies;
• The waste enclosure to be moved to the east to overcome reduced truck access due to the positioning of the new substation;
• The main basement entry ramp and waste enclosure driveway to be re-graded to achieve a 3% rise from the street kerb level to the boundary.
43 The original proposal was accompanied by a statement of environmental effects, (SEE), prepared by Project Planning Associates, dated 30 August 2002, and architectural drawings prepared by D+R Architects Drawing Nos DA 1.01A - DA 1.11A inclusive dated 29/8/02, a landscape layout Drawing No. LS02 (Sheet No 2B) and a plan of additional screen planting Drawing No SKLS-01 prepared by Kizana Architecture. This Statement of Environmental Effects provided a comparison between the plans originally approved by the Court and the plans submitted with the Building Certificate Application No 924/2002/AE the subject of related Class 1 proceedings. That comparison noted a number of differences broadly identified as follows:

• Deletion of the lower basement level car parking and reconfiguration of the upper level basement car parking;
• Reconfiguration of the floor plate and balconies at the, ground, first and second, floor levels;
  
• Reconfiguration of the external openings and architectural detailing;
  
• Modification of the roof form;
  
• Deletion of the swimming pool in the north-eastern corner of the site; and
  
• Inclusion of a storm water detention system in the south-western corner of the site.

Amended Proposal
44 By letter dated 12 March 2003, the applicant forwarded documents in support of the applications for both the development application for use, works and the building certificate, supported by architectural drawings by D+R Architects, a landscape plan by PSB, hydraulic engineering plans by ACM, fire sprinkler plans by LPB Fire Services Pty Limited, survey plan showing floor levels, ridge and eave heights by Warren Eldridge, plans showing unit numbers as approved by the Court in 1999 and as now identified, a new statement of environmental effects by Willana Associates containing carparking and traffic report by Traffix, and other documents relating to hydraulic, fire safety, civil and structural engineering certifications, engineer site reports, certification by JDT Design Pty Limited regarding repair work for damage of ground floor beam and concrete soffit slab, certification by Barry Johnson & Associates regarding BCA compliance, and other matters in response to the issues raised in Council's letter dated 30 January 2003.

45 The new statement of environmental effects summarised the proposed rectification works:


• Deletion of the lower basement level car parking and reconfiguration of the upper level basement car parking;
  
• Re-configuration of the floor plate and balconies at the ground, first and second floor levels;
  
• Reconfiguration of the external finishes and architectural detailing;
  
• Modification of the roof form;
  
• Deletion of the swimming pool in the north-eastern corner of the site and inclusion of a storm water detention system in the south-western corner of the site;
  
• Embellishment of the site landscaping; and
  
• Minor improvements to the functioning of the car park and driveway.

46 The amended plans submitted in relation to the development application for additional works and use comprise:

47 Drawing Nos DA1.01E, DA1.02D, DA1.03D, DA1.04D, DA1.05B, DA1.06C, DA1.07E, and a typical section showing sight lines (Job No 0019 dated 12/3/03) prepared by D + R Architects, OSD Plan Drawing No 99066 Sheet 1 of 2 Issue C dated 8/2/03 prepared by ACM Civil & Structural Engineers, and Landscape Concept Plan Drawing No SK01B prepared by Pittendrigh Shinkfield Bruce Pty Ltd dated 17 March 2003.

48 The new statement of environmental effects noted that the details of the rectification works are indicated on the site plan Drawing No DA1.01E, in addition to those listed in Drawing DA1.01A submitted with the original proposal.

49 The plans submitted with the development application are different in a number of respects to those plans that accompanied the building certificate application, i.e. in terms of driveway grades, natural ground level, floor levels of units, window sizes and placement, obscure glazing on windows, unit numbering, car park louvers, and garbage compound architectural treatment. The majority of these works are not listed as part of the total works to be carried out with this application for use, which shows the comparison between DA 804/2003/HB and Building Certificate Application 924/2002/AE plans.

• The stairs within the building are to be amended to provide a minimum clear width of 1000mm, maximum riser height of 190mm and the uniform riser heights where necessary;
• All door handles to egress doors to be to BCA standard;
  
• Obscure glass to be added to the windows as indicated on the plans and elevations to provide screening to adjoining properties and units opposite the central courtyard area;
  
• Mature planting to be added to eastern and western garden beds as indicated on the landscaping plans to provide screening to adjoining properties;
  
• Brick planter boxes to be constructed on the eastern ground floor balconies;
  
• The main basement entry ramp and waste enclosure driveway to be re-graded to achieve a 2% rise from the street kerb level to the boundary;
• Substation added to Northwest corner of site;
  
• Caretaker facilities added to basement;
  
• Unit floor levels revised as per as-constructed conditions;
  
• Unit numbering revised as per as-constructed conditions;
  
• Planter box to front balcony, Unit 1;
  
• Concrete to garbage pathway to be re-instated to edge of substation;
  
• Delete shutter to basement between car spaces 16 & 17 (previously marked as spaces 10 & 11 in the original application);
  
• Provide sprinklers to basement car park;
  
• Provision of sprinkler valve room in north-west corner of basement store;
• Remove front portion of entrance walls;
• Deletion of car spaces 30, 31 and 32 as per the Traffix traffic consultant's recommendation and conversion of these spaces' to bicycle storage and to utilize the aisle width to improve the accessibility of adjoining spaces;
• Re-organization of car parking spaces 7, 8 and 9 to improve their use, which involves removal of mesh fencing and rearrangement of doors, etc.


50 The plans are:

Court Approved DA Plans	DA Plans: Drawing Nos. 172-DA02C, 172-DA03C, 172-DA04C, 172-DA06F, 172-DA08D prepared by Designlink International Pty Limited.
Part Plans DA02
(Exhibits E & F showing plan of
stair to units 1 & 2, 11 & 12), a
drawing showing the section through
ramp, and SKO1-SK06 prepared by
McDivitt Gelder Architects.
Construction Certificate	Drawing Nos. GA-O1 Issue A, GA-
02 Issue B, GA-03 to 13 Issue A
prepared by Drummond + Rosen
dated April 2000.
Development Application Plans (as amended)	Drawing Nos. DA1.01E, DA1.02D,
subject of these proceedings	DA1.03D, DA1.04D all dated
7/3/03, DA1.05B dated 19/12/02,
DA1.06C and DA1.07E both dated
7/3/03, and a typical section showing
sight lines (Job No. 0019 dated
12/3/03) prepared by D + R
Architects, OSD Plan Drawing No.
99066 Sheet 1 of 2 Issue C dated
8/2/03 prepared by ACM Civil &
Structural Engineers, and Landscape
Concept Plan Drawing No. SK01B
prepared by Pittendrigh Shinkfield
Bruce Pty Ltd dated 17 March 2003
Building Certificate Plans	BC1.01 - BC1.02 Issue C, BC1.03 -
BC1.05 Issue B all dated 19/12/02,
BC1.06 Issue A dated 29/8/02 &
BC1.07 Issue C dated 19/12/02.

Notification
51 As the proposed additional works are mainly internal and landscaping works, the application was not re-notified or re-advertised.


The council’s decision
52 When the Class 1 appeal in respect of DA No 843/2003/HB was filed on 30 August 2002 the respondent council had not formally determined the matter, hence this appeal is in respect of a deemed refusal.


The hearing
53 At the hearing the court received expert evidence on behalf of the respondent council from:


• Mr P Lee, town planner
• Mr A Wood, traffic engineer
• Ms D Woods, health and building surveyor
• Mr N Kokolis, structural engineer
• Mr A Lester, architect
• Mr C Patag, town planner
54 On behalf of the applicant expert evidence was provided by:

• Mr S Harding, town planner
• Mr S Pittendrigh, landscape architect
• Mr G Pindar, traffic engineer
• Mr A Abbas, civil engineer
• Mr B Johnson, health and building surveyor
• Mr D Grunbaum, engineer
• Mr W Headon, acoustic engineer
• Mr Eldridge, surveyor

The issues
55 On 20 May 2003 the council filed the following Statement of Issues in respect of Appeal No 10463 of 2003:


1. Whether in the event of a grant of consent, there is jurisdiction for any person to issue an occupation certificate in relation to that consent.

2. If the answer to (1) is no, whether there is any utility in the proceedings.

3. Council raises the following issues for determination by the Court:-
(i) Whether the application contains sufficient information to enable the Council or Court to determine it, including:
(a) A design verification statement pursuant to Baulkham Hills Development Control Plan 23 ("DCP23") Clause 4.1 Design Quality of Residential Flat development.
(b) A site plan pursuant to Clause 5.1 DCP 23 - the site plan lodged does not show the location and general description of adjoining developments.
(c) A site analysis pursuant to Clause 5.2 DCP 23.
(d) The Statement of Environmental Effects (SEE) contains a number of errors and does not:
(i) describe or address the impact of all works proposed;
(ii) address all applicable DCP 23 requirements;
(iii) refer to the correct zone pertaining to the development;
(iv) indicate the method of calculation of the landscaped area (DCP 23 clause 5.12);
(v) contain a Building Greenhouse Performance Rating and other details as required by Clause 5.13 DCP 23 Energy Efficiency;
(vi) contain information required in relation to Stormwater Management at clause 5.19 of DCP 23 - Submission Requirements.
(e) The plans do not contain the following information:
(i) Natural ground level RLs;
(ii) An accurate survey of the car parking area showing grades, spot levels of all car spaces and driveways, and detailing headroom;
(iii) The soil depth in the central open space area;
(iv) North-south sections through the centre -of the development;
(v) Long sections east-west through the centre of the open space;
(vi) The landscape plan shows existing trees in the wrong location; and an incorrect north point;
(vii) Adequate information to enable a determination as to whether the proposal meets the solar access objectives and requirements including impacts on adjoining properties.

4. Whether the proposed use of the unauthorised development should be approved having regard to the following clauses of the Baulkham Hills Local Environmental Plan 1991 (BHLEP):
(a) Aim 2(1)(c) and Objective 2(2)(b).
(b) Clause 41 and Clause 42 - Site area.

5. Whether the proposed development meets the objectives and development controls set out in the following clauses of the Baulkham Hills Development Control Plan 23 Multi Unit Housing ("DCP23"):


(a) Clause 1.3 Aims and Objectives (iv) and (v).

(b) Clause 3.1 - Ecologically Sustainable Development objectives at (v) energy efficiency and (vii) neighbourhood amenity.

(c) Clause 4.1 - Design Quality of Residential Flat development.

(d) Clause 5.1 - Site Requirements
(i) Development Control (a) - in that the required minimum site area of 4000m2 is not met.

(e) Clause 5.2 - Site analysis
(i) Development Control (a) design to site constraints - drainage.
(ii) Development control (c) - in terms of whether screening and landscaping is sufficient on the eastern side.
(f) Clause 5.3 - Building setbacks
(i) Whether the setbacks meet the objectives of clause 5.3.
(ii) Whether the front, side and rear setbacks comply with the development controls at 5.3(b).

(g) Clause 5.4 - Building Height
(i) Whether the buildings comply with the building envelope requirements at clause 5.4 (b) and diagram 5.7.
(h) Clause 5.5 - Building separation
(i) Whether the building separation complies with the development control for minimum separation at clause 5.5(a).
(ii) Whether the space between the buildings is capable of extensive deep-rooted planting required at development control 5.5(b).
(i) Clause 5.6 - Landscaped area
(i) Whether the central landscaped area is within one metre of natural ground level, and therefore can be counted as landscaped open space.
(ii) Development control (e) - landscaped to a high standard
(iii) Development control (f) - whether the application complies with DCP 107.
(j) Clause 5.7 - Building Length
(i) Whether the building length of both buildings comply with the maximum length of 50m at development control (a).
(k) Clause 5.10 - Unit Layout
(i) Whether the development meets the objectives (i) and (iii) of the clause having regard to the unit sizes and unit layouts. (1) Clause 5.12 - Open space
(i) A. Private open space - Whether the development meets the objectives (i) and (ii) of the clause having regard to the orientation and depth of the balconies.
(ii) B. Common open space - Whether the development meets objective (i) of the clause having regard to its location and orientation, the lack of facilities such as a swimming pool, its size, and the location of the stormwater detention basin. (iii) Whether the amenity of the common open space area is adequate having regard to the stormwater detention basin and the location of the raised on site detention tank.
(iv) Whether the orientation and location of the open space complies with development control (d) - maximising solar access to the open space during winter.
(m) Clause 5.14 - Solar access
(i) Objectives 5.14 (i), (ii).
(ii) Development controls (a) and (b).

(n) Clause 5.19 - Stormwater management
(i) Objective (iii).
(ii) Development controls (d),(e),(f),(g)

(o) Clause 5.20 - Vehicular access
(i) Objectives (i) and (ii).
(ii) Development control (a), (c) and (d)

(p) Clause 5.21 - Car parking
(i) Development control (a), (b), (c), (d), (e), (f), (i), (k).

(q) - Clause 5.22 - Storage
(i) Whether adequate storage areas are provided in accordance with development control (a).
(r) Clause 5.23 - Access and Adaptability
(i) Objectives (i), (ii), (iii), (iv).
(ii) Development controls (a), (c), (d), (h), (i), (l).
(iii) Whether the documentation with the application is adequate to demonstrate that the objectives and controls are satisfied.
(s) Clause 5.24 - Pedestrian Links
(i) Development control (a); (d).
(t) Clause 5.25 - Privacy
(i) Objective (ii).
(ii) Development control (a).
(u) Clause 5.27 - Waste management
(i) Objective (iii)
(ii) Whether the proximity of the waste storage area impacts on the amenity of Unit 13.
(iii) Development control (f).
6. Whether the proposed development meets the objectives and development controls set out in the following clauses of the Baulkham Hills Development Control Plan 102 - Car Parking ("DCP102
(a) Clause 4.1 Parking provisions
(i) Objective (i).
(ii) Development controls 4.1.1 (a) and (i); and Table 1.

(b) Clause 4.5 Carwash bays
(i) Objective (ii).
(ii) Development controls (d), (e). .

(c) Clause 4.7 Car park design and layout
(i) Objectives (i), (ii).
(ii) Development controls 4.7.1 (a), (e); 4.7.2 (a), (d), (f), (g); 4.7.4 (a).

(d) Clause 4.10 Access driveways
(i) Objectives (i), (iii).
(ii) Controls (b), (d), (i)
1. The public interest including orderly development and the objects of the Environmental Planning and Assessment Act 1979.

56 On 8 December 2003 the remaining merit issues (by subject) were:

Privacy
• central courtyard and pathway; reduced building separation (8.2m-10m vs. required 12m) [issue 5(h)(i)];
• pathways between 2.3m and 4.0m from ground floor units [issue 5(t)];
• landscaping insufficient to screen [issue 5(i)(ii)];
• common open space at rear - overlooking from rear units - balconies of units 10 and 12 within 1 metre of space [issue 5(f)(i)];
• common open space at rear - overlooking from space to adjoining properties [issue 5(l)(ii)];
• acoustical privacy - between wet areas and adjacent living areas.

Over-development of site
Reduced building separation (see above);
Encroachments into setbacks [issue 5(f)(i) and (ii)];
• front setback 7.81m or 9.6m depending on whether measured from structural walls from car park or building wall. Compare with 10m requirement;
• western side setbacks from 4.77m-6.2m; compare minimum 6m; 5 units deficient;
• eastern side setbacks from 4.77m (or 6.23m measured from wall of building); at least 8 units deficient;
• rear setback 4m (from balcony); compare current requirement 8m (old DCP requirement 6m).

Sub-standard unit sizes [issue 5(k)(i)]
• all 2 and 3 bedroom units less than minimum size requirement.


Balconies too shallow to be functional; some at 1.8 m depth - reduction in depth arising directly from compromise with encroachment into side setbacks [issue 5(l)(i)]

Lack of storage for all units; less than 10m2 per unit [issue 5(q)(i)]

Insufficient number of car spaces [issues 5(p)(i) and 6(a)(ii)]
• current standard 52 resident spaces + 11 visitor spaces required;
• proposed spaces 49 counting stacked parking; excluding stacked = 44; indicative of 'squeezing in' + 10 visitor spaces;
• car parking layout generally below minimum dimensions [issue 6(c)] - (might be useful to colour up a basement plan showing deficiencies);
• length of spaces 8, 9, 51 and 52 short by 100mm;
• visitor spaces 2, 4, 6, 7 and 8 short/narrow by 20-80mm each (ie 5 of 10 visitor spaces);
• aisle width below minimum (6.7m) by 40mm;
• lack of blind aisle extension to space 7.

Ramp grade too steep [issue 5(o)(i) and (ii)]
• if grade were to comply with maximum allowed by Australian Standards, it would extend length of ramp into basement carpark, making cross-grades of adjacent visitor spaces unworkable.

User safety
• ramp too steep [issue 5(o)(i) and (ii)];
• sight lines inadequate; shallower ramp would avoid problem [issue 6(c)(ii) - dev control (b)]; and
• conflict between pedestrian and vehicles in vicinity of driveway/stair [issue 5(s)].

Accessibility
• current controls (Council's DCP and Access Code) requires wheelchair accessibility -intended to provide non-discriminatory, choice of housing; not achieved [issue 5(r)(i) and (ii)]
• inconsistent with Disability Discrimination Act (or, in the alternative, will result in an offence against DDA).

Termite protection
• methodology for retro-fitting; how it relates to procedure for installation of waterproofing membrane.

57 These issues can be distilled as being:
• Whether the units and common open space will be subject to unreasonable overlooking, whether neighbouring properties will be overlooked and whether acoustic privacy between some units will be satisfactory.
• Whether the development comprises an overdevelopment of the site in terms of the separation between buildings and building setbacks.
• Whether the units in the development are too small, the balconies are too shallow and whether the units have adequate storage space.
• Whether there is an insufficiency of car spaces and whether a number of car spaces and the access thereto are dimensionally deficient.
• Whether the main access ramp to the basement car-park is too steep and would be thus unsafe for pedestrians in Campbell Street.
• Whether the development should be required to provide wheelchair access to the units.
• Whether the building can be satisfactorily protected against termites.

The evidence and findings

Privacy
58 The privacy issue involves overlooking between units across the central axis courtyard within the development, overlooking from pathways into ground floor units and the overlooking from some units on to the common open space at the rear. Overlooking from the common open space onto adjacent development is also an issue as is acoustical privacy between wet areas and adjacent living areas in some units.

59 In relation to the acoustic privacy issue, conditions are proposed to ensure that units will meet BCA acoustic requirements. We are satisfied that these conditions can be complied with.

60 The privacy issue involving unit to unit overlooking mainly arises because of the non-compliance with the requirement of clause 5.5 of DCP 23 which requires that the two buildings have a minimum separation of 12 metres. As built the actual separation ranges between 10 metres and 8.2 metres.

61 The overlooking across the central courtyard involves bedrooms and kitchens. The central courtyard contains a common pedestrian access path, which provides opportunities for pedestrians using this pathway to look into ground-floor units. Also of concern, the occupants of rear units will be able to overlook the common open space at the rear of the site and for the users of the open space to overlook adjoining properties.

62 In response to these concerns the applicant has agreed to conditions, has changed the design somewhat and provided a landscape plan. These matters will mitigate the impacts of and includes some landscaped screening and obscure glazing. Some unit-to-unit overlooking will remain at the upper levels but even though this includes overlooking from kitchens it will mainly be between bedrooms.

63 Taking into account the extent of separation, proposed landscaping, glazing and the nature of the overlooking we do not accept that, taken together, the privacy impacts are at such as to warrant refusal of the application.


Overdevelopment
64 The issue of overdevelopment relates to increased floor area, non-compliance with the setback requirements of DCP 23 and the undisputed non-compliance with the building separation requirement as referred to in the privacy issue above. As constructed, the development has a floor area greater than that approved by the Court.

65 Relative to the approved development changes to the front, side and rear setbacks and floor areas are shown on the plans in Exhibit 22. The areas depicted in blue show floor area increases and the areas depicted in yellow show reductions. The yellow areas somewhat offset the non-compliances.

66 Brick planter boxes are to be constructed on the eastern ground-floor balconies and the landscaping in front of these boxes is to be improved thus softening the visual impact of the building. Landscaping in the central courtyard and elsewhere is also to be improved.

67 Taking all these matters into account we have not been persuaded that the non-compliances represent an over-development of the site sufficient to warrant refusal of the application.


Unit sizes and storage
68 In relation to unit sizes it is to be noted that the units as approved are smaller than the minimum size permitted by DCP 23. The units as now built are larger than those approved but are still smaller than the requirement.

69 Similarly the depth of the balconies is very much the same as those shown in the approved design. In these circumstances we would not refuse the application.

70 DCP 23 requires that there be 10m2 metres of storage area per unit, which has not been provided as sought. There is however some general storage provided in the basement in a manner similar to that shown on the approved drawings.

Taking into account the sizes of the units and not withstanding that the provision of storage areas is appropriate refusal of the application on this basis is not warranted.

Car parking and access
71 The number of car-parking spaces in the basement does not meet the requirements of the council. A number of car spaces are stacked, are too small or do not have sufficient headroom. Council does not normally approve stacked car-parking spaces essentially because of the associated inconvenience.

72 We accept that the pairs of stacked spaces can be allocated to particular units and the associated inconveniences would not be significant. The number of spaces that are dimensionally deficient is relatively few and the spaces are nevertheless useable. In these circumstances we have not been persuaded that the application should be refused because of car parking and manoeuvring deficiencies.

73 Concern was expressed that visibility at one of the intersections in the access way was such that it would be dangerous. We accept that visibility is limited but given the low speed environment this corner would not be so unsafe as to warrant rejection of the application.


The access ramp
74 The existing consent for this development requires that the vehicular access ramp to the basement car park should comply with Australian Standard 2490.1 - 1993 - Parking Facilities - Off-street Carparking. The ramp as constructed does not comply with this standard particularly having steeper gradients than are provided for. The applicant proposes to make some modifications to the ramp so as to facilitate appropriate gradients on the adjoining footpath but no attempt has been made to meet the gradient requirements of AS 2890.1.

75 The council seeks to impose on the sought consent a similar condition to that originally imposed together with a number of other requirements including line marking, signage, striker bars etc. To the extent that the condition requires compliance with the ramp requirements of AS 2890.1 the applicant objects to this condition.

76 In his evidence in this regard Mr Pindar made a number of points, which in essence are:


• The standard does not take into account prevailing conditions and, given the scale of this development need not be strictly applied. A number of other metropolitan councils allow discretion in such circumstances and permit steeper gradients.
• The standard permits steeper driveways where they serve domestic properties in residential areas even where pedestrian activity including schoolchildren is a common occurrence.
• The provision of generous visual splays - in excess of AS 2890.1 -will enable drivers to have sufficient lateral clearances to view pedestrians and stop if necessary. Also pedestrians will have a clear view of exiting vehicles.
• The Baulkham Hills Council has approved numerous ramps for similar developments with steeper grades.
• Some weight should be given to the fact that the building has already been constructed.

77 In response Mr Wood, in essence, explained that:

• Council rarely allows variations to AS 2890.1 and only does so on a merits basis and where there are site constraints warranting an exception. This is a large and relatively unconstrained site and there is no justification for non-compliance.
• In relation to the examples of steeper grades said by Mr Pindar to have been approved by the council the approvals either required compliance with the standard or site constraints justified an exception.
• The splays do not entirely comply with AS 2890.1 because they do not extend the required distance into the property to allow for passive viewing of the streetscape.
• The existence of the building cannot justify non-compliance.


78 In addition to the evidence provided in relation to this aspect of the proposal, including long sections of the existing ramp we also took into account when dealing with this issue the observations made by the Court at the site inspection on 11th December 2003.

79 Whilst we do not accept Mr Wood's evidence, which in part was to the effect that any ramp, which did not meet AS 2890.1, would not be safe, we otherwise prefer his evidence. Generally speaking we agree that the existence of the building cannot be determinative of this issue. Although the gradient of the ramp would not be seriously problematical in terms of vehicular ingress and egress the matter of pedestrian safety is critical.

80 We have carefully considered the sight line long sections of the existing ramp and note that as vehicles approach the street the ability of a driver, in this critical location, to observe a small child on the footpath would not be as good as would be the case for a complying ramp. Despite being satisfied that the extended splays would provide adequate lateral viewing of the footpath and the provision of a speed hump which would ensure that vehicles arrive at the property boundary travelling relatively slowly, the reduced vertical visibility is such, we have concluded, as to warrant requiring the development's partial compliance with AS 2890.1.

81 We have not been persuaded that strict compliance is required for the entire ramp. However essential compliance with AS2890.1 will be necessary in the vicinity of the property boundary so that vertical visibility for exiting vehicles (85th percentile) will be very much the time the same as would be achieved by such compliance.

82 We have reached this conclusion recognising the extensive works which will be involved and which will probably include modifications to car-parking spaces, access to and through service areas and fire exits. Also involved will be modifications to the concrete beam which supports the northern wall of Unit 13 at the opening to the basement. In this particular context we considered the structural engineering evidence and have been persuaded that this beam could be converted from its present down turned configuration to an up turned beam so as to provide the minimum 2.2 metres clearance.


Disabled access
83 Whilst disabled persons can access the central pedestrian pathway within the site, access to the relatively elevated entry foyers such access is effectively denied by stairways. Access into the ground floor units is probably also denied at the threshold. Access into the upper floor units is only available via stairways, no lift being available. This arrangement is very much the same as was provided for in the originally approved development.

84 It was submitted on behalf of the council that the Disability Discrimination Act 1992 has the effect of requiring that the existing buildings must be modified to ensure that persons with a disability are not denied access.

85 In all of the circumstances we have decided that it would be unreasonable to require that the existing multi-level development be required to be modified so that persons in wheelchairs can access all of the existing units. However we do not accept that it would be unreasonable to require that the central pedestrian pathway could not be elevated and connecting ramps provided such that wheelchair access would be available to each of the ground floor foyers.


Termite protection
86 Council was concerned that the constructed building had not been provided with adequate termite protection. This has effectively been attended to in the revised drawings, specifications and conditions of consent. We accept that although difficult appropriate protection can be retrieved fitted possibly in conjunction with the installation of waterproofing membranes.


Conclusions
87 In all of the circumstances we have decided that, the applicant should be invited to amend the basement vehicular access ramp and to provide disabled access.

88 In particular, the applicant might amend the basement ramp, in the vicinity of the property boundary, in accordance with AS2890.1 to facilitate easier vehicle control and to achieve a superior level of safety for pedestrians, especially children, when compared to that provided presently. For drivers of exiting vehicles, this would achieve the vertical sight lines of the Australian Standard.

89 Disabled access to the building might be provided to the ground floor foyer areas of the proposal, so that persons in wheelchairs can gain access to and from the footpath in Campbell Street, in compliance with the Disability Discrimination Act 1992 (Cth).

90 The Court also invites the applicant to amend the architectural, landscape, drainage etc plans to reflect these conclusions and the Council might also prepare a revised set of conditions.

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S J Watts
Commissioner of the Court

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T A Bly
Commissioner of the Court