Barton Corporation Pty Limted v Sutherland Shire Council - [2004] NSWLEC 533

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Barton Corporation Pty Limted v Sutherland Shire Council [2004] NSWLEC 533

PARTIES:
APPLICATION
Barton Corporation Pty Limtied
RESPONDENT
Sutherland Shrie Council

FILE NUMBER(S): 10602 of 2004

CORAM: Hussey C

KEY ISSUES:
Appeal :- Mixed use commercial/shop top development - streetscape - setbacks - traffic - public interests

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland LEP 2000
Draft Sutherland LEP 2004

CASES CITED:

DATES OF HEARING: 9 & 10/09/04

DATE OF JUDGMENT: 10/07/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso, barrister
SOLICITOR
Micheal Marney Solicitors
RESPONDENT
Mr C Mathieson, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 October 2004

10602 of 2004 Barton Corporation Pty Limited v Sutherland Shire Council
JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application proposing a mixed commercial/shop top housing development at 284 Belgrave Esplanade, Sylvania Waters.

2 The site is prominently located on the northern corner of Belgrave Esplanade and Murrumbidgee Avenue and has a total area of 1308 sq m. It was previously used as a service station.

3 Situated to the north of the property is a group of shops, served by an internal driveway and parking area. To the south-east and south-west, there is a mixture of single and two-storey residential dwellings.

4 Whilst the surrounding development primarily consists of residential development, the Taren Point Bowling Club and Flower Power operations are within the vicinity of the site.

5 Insofar as a number of issues were initially identified, further clarification of the detailing of the proposal and conferencing between the parties resulted in reduction of these issues. Consequently the principal issue concerns streetscape impact of the proposal. Associated issues concern internal amenity of the residential units and matters of character, traffic safety and general amenity raised by the neighbours.

The proposal

6 This proposal involves the demolition of the existing disused masonry service station and associated structures and the construction of a mixed commercial/residential development comprising 6 ground floor business units and 6 first floor residential units.

7 It includes a basement car parking area with 32 spaces, of which 20 are for the commercial development and 12 car spaces for the residential units (including 2 visitors spaces). All access to the development is proposed via Murrumbidgee Avenue.

8 The design of the proposal is 2 storeys and it has zero setbacks on three boundaries and is designed to integrate the commercial areas with the existing, adjoining neighbourhood centre.

Planning controls

9 The subject land is zoned Neighbourhood Business 3(b) under the provisions of Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The proposal is permissible with consent in this zone.

10 The following environmental planning instruments and development control plans are of relevance to this application:

· Sutherland Shire Draft Local Environmental Plan 2004.

· Sutherland Shire Development Control Plan for Notification of Development Applications.

· Sutherland Shire Development Control Plan for Landscaping.
· Sutherland Shire Development Control Plan for Car Parking.

11 The Sutherland Shire Draft Local Environmental Plan 2004 has been forwarded to the Department of Infrastructure Planning and Natural Resources for gazettal. Mixed Use Development is permissible with development consent on the site, under the proposed provisions of the Neighbourhood Centre Zone in this draft LEP. However, there is no confirmation that approval is imminent or certain.

The evidence

12 Detailed evidence on behalf of council was presented by:

· Mr M. Lucchitti, Development assessment officer -architecture (Exhibits 8 and12)

13 The written submissions contained in council’s bundle (Exhibit10) were considered in conjunction with the oral evidence given on-site by residents.

14 For the applicant, evidence was presented by:

· Mr D. Crane, consulting town planner (Exhibits C, K, and 12)

· Mr C. Rice Jones, project architect (Exhibit D)

· Mr. McLaren, traffic consultant (Exhibits E, L and 13)
· Mr M. Relf, access consultant (Exhibit F)

Discussion of the evidence

15 According to Mr Lucchitti’s evidence, the unsatisfactory streetscape impact arises due to his consideration that the building exhibits excessive bulk and scale, which is exacerbated because there are no building line setbacks that relate to the neighbouring residential properties. Additionally, he identifies the column elements and the colonnade as being unsatisfactory in the streetscape. However, he is satisfied with architectural design style of the building.

16 Against this, Mr Crane's assessment is that the proposed development complies with the prevailing controls and is comparable in height and scale with the adjoining 2 storey commercial building to the immediate north-east of the site fronting Belgrave Esplanade and existing two-storey housing forms evident in the streetscape.

17 He says that the horizontal emphasis given to the building facades and proposed light colour scheme compliments the proposed contemporary modern design, which reflects the emerging built form character of the surrounding residential area. Also, that the proposed ground floor colonnade walkways draw upon the veranda and colonnade elements evident in the adjoining single and two-storey retail/commercial buildings adjacent to the site.

18 In order to address this streetscape issue, the respective experts conferred and identified the following elements as being relevant in this case: setbacks, height, scale and bulk, articulation, context, land use/ zoning, landscape treatment and floor space ratio (FSR).

19 Interestingly the experts agree that the proposal satisfies the majority of these elements. This includes the suitability of the site for the land use and its complying height, which is well below the dominant height of residential redevelopment occurring within this locality. Also, there is agreement that the proposal complies with council’s code in respect of the allowable FSR. After some amendments, including deleting the proposed landscape treatment against the colonnade and provision of appropriate street trees, Mr Lucchitti acknowledges the landscaping treatment is acceptable.

20 With respect to the remaining elements, Mr Lucchitti’s outstanding concerns are with the impact of the protruding first floor terraces over the colonnade fronting Belgrave Avenue, because this is not consistent with the existing 6.5 m setbacks in the nearby residential zones. Also, the section of the building fronting Murrumbidgee Avenue that has zero setback.

21 However Mr Crane points out that the ground floor commercial premises do have variable setbacks of 2.5 m to 5 m on the ground floor and a 2.9 m building setback on the first floor level. In regard to the setback in Murrumbidgee Avenue, he confirms that it is generally 1.8 m, except for a length 15 m (i.e. 42% of its boundary length) at first floor level.

22 Having considered these competing positions, I accept the planners/architects agreement initially, that the proposed architectural style is appropriate for the site, considering the emerging form of the significant redevelopment occurring in this neighbourhood, particularly the new, boldly designed style and coloured contemporary homes nearby.

23 In this regard, I note Mr Rice Jones’ response to the bulk and scale concerns, “that the design is a contextual fit of providing for the future of the residents in Sylvania Waters and leading by example; not dictated by that style which is not worthy of repetition or imitation.” Furthermore he maintains that the colonnade is an essential part of this style and it helps to provide identification of the commercial area and differentiates the shop top housing.

24 In determining the acceptability of the colonnade; I also consider the position of the site relevant, in the context of neighbouring developments. Reference to the plan in attachment 1, shows that this site is separated from the residential zones by roads and access ways. In my opinion, it is reasonable to take into account that the council’s controls do not stipulate any setbacks in this commercial zone. Therefore I do not consider that the presence of two-storey elements at zero setback, which complies with the controls necessarily presents as unwanted bulk and scale of the building. This consideration applies to both the Belgrave and Murrumbidgee Avenue frontages.

25 It then seems to me that the visual impacts of the colonnade in Belgrave Avenue is substantially limited because the piers and roof section will be mostly observed against the background of the recessed main building wall, which comprises mostly masonry and glass elements. I am persuaded to accept Mr Crane's opinion that the colonnade piers help in the identification of the commercial area and differentiate the secondary, first level residential units and will not result in unreasonable visual impacts.

26 With regard to the Murrumbidgee Avenue elevation, it does contain some articulation and setbacks for more than half its frontage. Considering that two-storey commercial building is allowed on this site, I am unable to accept Mr Lucchitti’s opinion that there will be noticeable improvement in streetscape impact, if this section was further setback. It appears to me that when depth of field allowances are made, this proposal demonstrates reasonable compliance with the provisions of the controls in terms of the visual impacts and is the form of building envisaged in the controls.

27 Under these circumstances then, I do not consider that Mr Lucchitti’s concerns are of sufficient magnitude to warrant redesign of this aspect of the proposal, which I consider is compatible with the adjoining shopping centre and architectural themes in this neighbourhood, notwithstanding that it does not provide a concessionary setback to match the residential properties.

28 Insofar as some concerns were raised about the internal amenity of the first floor residential units and their inability to comply in all respects with the Good Design Manual, nevertheless I consider that the amendments result in a reasonable level of internal amenity for these relatively small units. The main problem identified concerns solar access to bedroom 2 because of the narrow corridor to its window. However I note that the design incorporates a variable roofline, which allows solar access through highlight windows. Accordingly I rely on the evidence of Mr Rice Jones and Mr Crane that BCA requirements are met and the units do provide a reasonable level of amenity in a shop top housing situation, albeit they have some smaller rooms than is desirable in predominantly residential zones, where a different standard of amenity may be anticipated.

Public interest

29 The main issue raised by the objectors’ concerns traffic amenity and safety. In particular they indicate that currently there is difficulty in parking due to the carriage width of Murrumbidgee Avenue. This apparently has resulted in some accidents and safety concerns. There is a preference by the residents for all entry to the development, to be off Belgrave Esplanade.

30 A further assessment of these concerns was undertaken by the respective traffic experts Mr Anderson and Mr McLaren. According to Mr Anderson check of council records, there is no record of this section of Murrumbidgee being a particular traffic black (danger) spot. Also, they agree through under normal operating conditions, Murrumbidgee Avenue has sufficient environment capacity to accommodate the traffic generated by the development, so as not to cause adverse residential amenity.

31 Notwithstanding this, they agree that some traffic improvement measures be undertaken in conjunction with this development. They include:

Murrumbidgee Avenue

· “No Parking” restrictions to apply for that segment commencing from a point twelve metres north of the driveways serving the existing neighbourhood shopping centre to the northern boundary of the subject property.

· “No Stopping” from the southern edge of the proposed driveway to the southern edge of the electrical substation in the road reserve.

· “Loading Zone” for a 7 m distance to the south of the abovementioned “No Stopping” zone.

“No Stopping” zone to the junction of Belgrade Esplanade from the abovementioned Loading Zone.

Belgrade Esplanade

“No stopping” restrictions along the entire frontage.

The above listed signposting restrictions will achieve improvements in terms of two-way traffic flow, driveway visibility, kerbside loading/parking activity and short term parking adjacent to the postal box within Murrumbidgee Avenue.

These experts also agree that suitable landscape screening, to council’s requirements can be implemented as a condition so as to control headlight glare to a reasonable extent.

Conclusions

32 Having considered the evidence, submissions and undertaken a view, I am satisfied that this development merits conditional consent. The proposal involves a mixed commercial/shop top form of development, which is allowed, on this site and the proposal demonstrates substantial compliance with the current controls and is not inconsistent with the provisions of the Draft LEP, which is neither imminent or certain.

33 The main issue identified concerns the detailing of the proposal in terms of the piers along the colonnade and the fact that there are restricted street setbacks. However in the ultimate, I consider it a reasonable expectation from the controls, that development can be optimal, which in this case allows zero setbacks in the commercial zone. But in my assessment, the visual impact of these elements will not be of such magnitude to warrant rejection as suggested by Mr Lucchitti. Instead, I rely on the opinion of Mr Crane that this application adequately complies with the controls and in particular the relevant zone objectives to provide small scale retail and business activities in viable neighbourhood centres, supported by appropriate forms of residential development (i.e. shop top housing).

34 With respect to the objectors’ concerns, I am satisfied the those relating to traffic convenience and safety can be reasonably addressed by the agreed measures presented by the traffic engineers.

Court orders

1. The appeal is upheld.

2. Development consent is granted to DA. 03/1725 for the demolition of existing structures and construction of a mixed commercial/residential development comprising 6 business units and 6 residential units at Lot 565, D.P. 528968 (284) Belgrave Esplanade, Sylvania Waters, subject to the conditions in Annexure A.

3. The exhibits may be returned except 2, 8, 11, 12, 13, A, B, G, J, K, L and M.

_________________________
R Hussey
Commissioner of the Court
Ljr/rjs

Annexure “A”

Conditions of Consent

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

1 Approved Plans and Documents

The development shall be implemented substantially in accordance with the details and specifications set out on Job No. 942/03 Sheet No.'s. 01/E, 02/E, 03/E, 04/E and 05/E dated August 2004 prepared by Innovative Building Design and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.

Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:

a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA.

2 Prescribed Conditions

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

A. Compliance with the Building Code of Australia
The development must be carried out in accordance with the provisions of the Building Code of Australia.

B. Residential building work

Principal Certifying

Authority

a) in the case of work to be done by a licensee under that Act:

b) in the case of work to be done by any other person:

2. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

C. Details to be Provided to Council with the Notice of Commencement.

Builders and Insurance details required under part B above shall be provided to Council with the Notice of Commencement. In relation to non-residential building work Builders details shall be provided to Council with the Notice Of Commencement.

3 Requirements of IDA Approval Authorities

+ Department of Infrastructure, Planning and Natural Resources

4 General Condition 1

An Intercom system shall be provided for all commercial and residential premises within the development. This intercom shall incorporate a CCTV system enabling all residential units to ascertain if visitor car parking spaces are occupied.

5 General Condition 2 - Use of Shops/Suite require separate approval.

A separate development application must be lodged with Council prior to the occupation of the shops/suites.

6 General Condition 3

Bonds and Contributions

7 Council Property & Environment Damage Security - Construction

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $15000 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. This shall be retained by Council for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.)

It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall accompany the Construction Certificate.

8 Public Liability Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

35 Section 94 Contributions

The following contributions have been levied in relation to the proposed development pursuant to Section 94 of the Environmental Planning and Assessment Act 1979.

9 Section 94 - Acquisition and/or Embellishment of Public Open Space

A monetary contribution of $ 53,293.05 shall be paid to Sutherland Shire Council for the cost of acquiring and embellishing public open space in lieu of its physical provision. The contribution is for the following:

Local reserve land acquisition $ 47,561.59 (A/c No. 2944LLA7SYLCS94)
District reserve embellishment $ 1,097.51 (A/c No. 2944DRA7SYLCS94)
Local reserve embellishment $ 4,633.95 (A/c No. 2944DRA7SYLCS94)

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan - Open Space, after identifying the likelihood that this development will require or increase the demand for local and district open space within the area. It has been calculated on the basis of twelve (12) new bedrooms with a concession of one (1) existing allotment.

The contribution will be indexed on 1 July in each year in accordance with indexing methods outlined in the Plan, with amended rates being available from Council.

Payment shall be made prior to the issue of the Subdivision Certificate in the case of development applications involving subdivision or alternatively prior to the issue of a Occupation Certificate or submission of the Completion Report in the case of development applications involving building work.

The payment of monetary contributions may be deferred in accordance with clause 13 of the Contributions Plan.

NOTE: Council has resolved that in relation to Section 94 Contributions for Open Space that all applications from the date that the draft Sutherland Shire Contribution Plan - Open Space 2000 was publicly exhibited (28/11/2000), to allow payments of the Section 94 Contributions for Open Space to be in accordance with the plan applying at the time of payment.

10 Community Facilities, Shire Wide 2003 Plan

A monetary contribution of $ 4,648.72 shall be made for the cost of providing community facilities. (Account No. TR2944776ASUTCS94)

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan - Community Facilities in the Sutherland Shire, after identifying the likelihood that this development will require or increase the demand for community facilities within the shire. It has been calculated on the basis of six (6) new dwellings, with a concession for one (1) existing allotment.

The contribution will be indexed on 1 July in each year in accordance with the indexing methods outlined in the Plan, with amended rates being available from Council.

Payment is required on or before the times stated in clause 4.2.1 of the Contributions Plan unless the Council accepts a deferred or periodic payment in accordance with clause 4.2.2 of the Contributions Plan.

The Contributions Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, Eton Street, Sutherland during office hours.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

Design Conditions

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

11 Design Changes Required

To reduce the environmental and/or ecological impact of the development proposal, the following design changes shall be implemented:

Details of these design changes shall accompany the Construction Certificate.

12 Recycling Facilities

A separate recycling bin or container shall be provided and located wholly within the property boundaries for the commercial and residential bin storage areas.

13 Detailed Landscape Plan

A detailed landscape plan shall be prepared to ensure that the landscaping is appropriate to the development and provides reasonable amenity for neighbouring properties. The plan which shall accord with the landscape concept plan, Council's Landscape Development Control Plan and the relevant conditions of this development consent, shall accompany the Construction Certificate. Certification from an Accredited Certifier to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the construction certificate.

14 Design and Construction of Works in Public Areas

Council has determined that the proposed development generates a need for the following works to be undertaken in the approved Road Reserve. Survey and design plans for the following works are to be prepared by Council's Consulting Services Unit and issued by Council's Civil Assets Manager.

(o) Erosion and sediment controls.

The preparation and issue of the plans will be subject to a fee and approval under the provisions of the Roads Act 1993, prior to the commencement of any works within Council's road reserve.

A fee quotation may be obtained by contacting the Design Branch Manager on telephone 97100247.

Note: In this condition, Council means the Council of the Sutherland Shire.

15 Site Management and Traffic Management Plan

A Construction and Site Management Plan together with a Traffic Management Plan shall accompany the Construction Certificate. These plans shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and the relevant traffic management standards and shall consider the following:

a) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

b) The proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,

c) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,

d) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.

f) The requirements of any site specific Development Control Plan that may affect this development site.

g) The footpath and road reserve shall not be used for construction purposes.

Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:

i. Pump concrete from within a public road reserve or laneway,
ii. Stand a mobile crane within the public road reserve or laneway,
iii. Use part of Council's road/footpath area,
iv. Pump stormwater from the site to Council's stormwater drains, or
v. Store waste containers, skip, bins, and/or building materials on part of Council's footpath or roadway

16 Soil and Water Management

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

iv. Ensures disturbed areas are promptly rehabilitated.

g) Trap sediment on site to prevent off site damage. Hay bales are not to be used as sediment control devices. To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works until the site is stabilised (includes landscaping).

17 Design requirements for Disabled Access and Adaptable Unit.

A checklist list prepared by a person suitably accredited by the Association of Consultants in Access Australia, shall be submitted with the application for a Construction Certificate, demonstrating that the development complies with the requirements of AS4299 and AS1428 and the requirements contained in the Report prepared by Accessibility Solutions, Mark Relf dated 31st August, 2004.

Adaptable Unit:

The Adaptable unit no.1 complies with AS4299 for a Class C adaptable Unit

36 Conditions Relating to Works in the Road Reserve

These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.

18 Access Application

An access application shall be made to Council to obtain footpath crossing and boundary alignment levels before commencing the final design of internal driveways, paths and car park area. A copy of the issued levels shall accompany the Construction Certificate.

19 Road Opening Approval Required

No work whatsoever shall be carried out within the Public Road Reserve unless a "Road Opening Permit" under the Roads Act, 1993 (NSW) has been issued by either Council or the Roads and Traffic Authority for every opening of the public road reserve.

20 Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately accredited certifier to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

37 Public Utility Authorities Requirements

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

21 Public Utilities -

Arrangements shall be made with Energy Australia, Telstra, cable television network providers and other public utilities in relation to:

22 Sydney Water - Notice of Requirements

Prior to the issue of a Construction Certificate or Subdivision Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.

23 Public Utility Authorities

Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

24 Internal driveway profile

The internal driveway profile shall be designed to :

a) Provide adequate sight distance for the safety of pedestrians using the footpath area;
b) Align with Council's issued footpath crossing levels;
c) Provide a maximum grade of 5% for the first 4 metres inside the property boundary; and
d) Comply with AS2890.1-2004 and AS2890.2-2002 (as required) in relation to the design of vehicular access, parking and general manoeuvring and to the specific requirements of the grease trap cleaning vehicle if this vehicle is to gain access to the basement car park at any time.

25 Drainage Design - General

The drainage for this development proposal shall be designed in accordance with the Institution of Engineers' publication "Australian Rainfall and Runoff" (1987), Council's "Urban Drainage Design" Manual together with Council's "Stormwater Management Policy and Guidelines" and "On-Site Stormwater Detention Policy and Technical Specification".

The design shall also take into account the specific requirements of any Development Control Plan, Catchment Management Plan or Stormwater Management Plan relevant to the site.

26 Drainage Design - Detailed Requirements

A detailed drainage design shall be prepared in accordance with "Australian Rainfall and Runoff (1987)", Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification.

a) A detailed drainage design supported by drainage calculations.

b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum.

c) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the proposed drainage line.

d) A physical barrier (eg. concrete kerb or earth mound within the landscaping or other means) shall be provided around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.

27 Drainage Design (Stormwater Disposal)

To ensure the efficient disposal of stormwater and that no problem is caused to surrounding premises, the stormwater from the development shall be discharged to the existing piped drainage system within Belgrave Esplanade, being a properly functioning system permitted by Council.

28 Stormwater Treatment

An appropriate stormwater treatment measure, selected from the Environment Protection Authority's document "Managing Urban Stormwater - Treatment Techniques, November 1997", shall be provided as part of the permanent site stormwater (water quality) management system.

29 Basement car park design

The basement carpark shall be designed in accordance with AS 2890 and shall incorporate the following:

a)The minimum headroom in the basement parking area shall be 2.2m measured from the parking floor to the underside of any beam, ventilation duct or service conduit, or to the underside of any door including a security door and fittings when those doors are in an open position.

b) Where garage doors are proposed and except where noted in the approved plans, all garages shall have a minimum width of 3m with a minimum door opening of 2.75m wide x 2.2m high clear of any necessary hinges, jambs or fixtures required for the operation of the garage doors and any services within the garage area. The Adaptable Unit shall have a minimum headroom clearance of 2.5m.

30 Parking areas and access

All vehicular access, parking and manoeuvrability for the proposed development shall be designed and constructed to comply with AS2890.1 - 2004.

a) The car park shall be line marked sufficient to accommodate 22 vehicles not housed within enclosed garages.

31 Garbage and recycling storage area

To ensure proper storage of waste from the premises, an enclosed garbage and recycling storage area shall be provided. This facility shall be designed and positioned to accommodate (and if necessary provide collection access to) waste and recycling bins to Council's requirements and in order to minimise noise and odour, it shall be located as far as possible away from nearby premises. Within this area a smooth impervious floor shall be provided that is graded to a floor waste and a tap and hose provided to facilitate regular cleaning of the bins. All waste water shall be discharged to the sewer in accordance with the requirements of Sydney Water.

Details of the garbage, recycling and greenwaste storage area shall accompany the Construction Certificate.

32 Odour control

To ensure that adequate provision is made for the treatment of odours, suitable odour control equipment shall be fitted to the mechanical exhaust system(s) within the development. This equipment shall be capable of enabling the operation of the exhaust system free from the emission of all offensive odours from the premises as defined under the Protection of the Environment Operations Act 1997.

Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.

33 External Lighting - (Amenity)

Any lighting on the site shall be designed and operated so as not to cause a nuisance nor adverse impact on the other residents of the surrounding area nor to motorists on nearby roads. All external lights shall be designed in accordance with Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting.

34 Building Ventilation

To ensure that adequate provision is made for ventilation of the building mechanical and / or natural ventilation systems shall be provided. These shall be designed, in accordance with the provisions of:

Details of all mechanical and / or natural ventilation systems, along with specific certification provided by an appropriately qualified person verifying compliance with the abovementioned requirements, shall accompany the Construction Certificate.

35 Noise Control - Design of Plant & Equipment

To minimise the impact on the surrounding residents, all sound producing plant, equipment, machinery, mechanical ventilation system or refrigeration systems shall be acoustically attenuated so that the noise emitted does not exceed an Leq sound pressure level of 5dB(A) above the ambient background noise level in any octave band, from 31.5Hz to 8kHz centre frequencies inclusive when measured at the boundary of any affected premises or at the external edge of any residential sole occupancy unit balcony within the premises itself at any time the units operate. Not withstanding the above requirements, between the hours of 10.00pm and 8.00am noise emitted shall not be audible within any residence or sole occupancy unit with its windows or doors open or closed.

Note : The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

36 General Amenity Condition 1

Access to the mechanical exhaust riser shall be provided for each shop.

37 General Amenity Condition 2

Separate exhaust ventilation ducts and risers shall be provided for the kitchen exhaust and car-park exhaust systems.

38 Engineering Work

All engineering work in relation to the proposed development frontage works shall be designed and constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments".

39 Energy Efficiency - Where NatHER Certificate is provided

Details of how it is intended to achieve the Energy Efficiency requirements listed below, shall form part of the Construction Specifications or shall be detailed on the plans endorsed with the Construction Certificate:

40 Energy Efficiency - General

Details demonstrating how it is intended to comply with the energy efficiency requirements of any relevant Development Control Plan through the use of recycled, plantation timber and non-polluting building materials etc shall accompany the Construction Certificate. Choice of materials shall be made from the items listed in the Sustainable Materials Schedule.

BCA Fire Safety Condition

The following condition has been imposed for the purpose of ensuring that the proposed development meets BCA fire safety requirements.

41 Submission of Fire Safety Schedule

Environmental Planning and Assessment Regulation 2000

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

42 Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:

43 Pre-Commencement Inspection

Prior to the commencement of any works, the PCA and the Builder / responsible person shall undertake a pre-commencement site inspection with Council's Compliance Officer. The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern.

44 Signs to be Erected on Building and Demolition Sites

Where proposed works affect the external walls of a building, a rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which building work, subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.

The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

45 Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.

46 Permitted hours for building and demolition work

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

47 Toilet Facilities

Toilet facilities shall to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

48 Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:

d) If the building contains asbestos sheeting or asbestos products, the demolition work shall only be carried out by persons licensed by the Workcover Authority.

Note:

The formal approval of the Workcover Authority is required prior to commencement of work where the area of the sheeting or product exceeds 200 square metres.

49 Excavations and backfilling

a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards.

b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

50 Retaining Walls and Drainage

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.

51 Support for Neighbouring Buildings

If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

b) if necessary, shall underpin and support the building in an approved manner, and

c) shall, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
d) the owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

In this clause, allotment of land includes a public road and any other public place.

52 Protection of Public Places

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:

A hoarding or fence shall be erected between the work site and the public place.

b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

53 Noise control during construction and demolition

a) For construction and demolition periods not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.

54 Vibration damage

To minimise vibration damage and loss of support to the buildings in close proximity where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report shall be prepared by a qualified geotechnical engineer detailing the maximum size of hammer to be used for excavation purposes. This report shall accompany the Construction Certificate.

55 Maintenance of Erosion Control Measures

Erosion and sediment control measures shall be implemented and maintained, during the course of construction, to minimise downstream sediment transfer particularly with respect to watercourses, stormwater outlets, fire trails, batters and disturbed ground. All control measures shall be maintained in accordance with Council's Environmental Site Management Development Control Plan and "Specification for Civil Works Associated with Subdivisions and Developments".

56 Run-off and Erosion Controls

Run-off and erosion controls shall be installed prior to commencement of any site works and shall be continuously maintained during the period of construction or demolition. These control measures shall generally be in accordance with the requirements of Council's Environmental Site Management Development Control Plan and shall specifically address the following matters:

57 Construction of Public Frontage Works

The following road frontage works shall be constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments":

Permission shall be obtained for the carrying out of the proposed works, under the Roads Act, 1993 prior to the commencement of works or the issue of a Construction Certificate.

58 Stockpiling of materials during construction

Topsoil, excavated material, construction & landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property. For further information, refer to Council's Environmental Site Management Development Control Plan.

59 Containment of Fill

Fill shall not extend beyond the perimeter of the building. (The use of a dropped edge beam is a method of complying with this condition.)

60 Construction materials and machinery must be kept on site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Council's Environmental Site Management Development Control Plan.

61 Spoil deposited on public way (roads or reserves)

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the public way is taking place then the cartage of spoil shall cease if so directed by Council.

62 Vibration Control - Residential

The proposed security door fitted to the car parking area entrance shall be independently mounted on rubber pads to prevent vibration noise transmission through the concrete walls and / or columns.

63 Management of Acid Sulfate Soil

To ensure that there are no off-site effects of Acid Sulfate Soil, Acid Sulfate Soil must be managed in accordance with the Acid Sulfate Soil Assessment and Management Plan, dated 24th March 2004, prepared by New Environment Management and Technology Pty Ltd. In the case where other consent conditions contradict the Acid Sulfate Soil Assessment and Management Plan, the consent conditions override the methods stated in the Management Plan.

64 Treatment and disposal of Acid Sulfate Soil

Acid Sulfate Soil must be treated and disposed of in accordance with NSW EPA, 1999, 'Environmental Guidelines : Assessment, Classification and Management of Liquid and Non Liquid Wastes'.

65 Treatment and disposal of contaminated soil

Contaminated soil must be treated and disposed of in accordance with NSW EPA, 1999, 'Environmental Guidelines : Assessment, Classification and Management of Liquid and Non Liquid Wastes'.

66 General Construction Condition 4

Any soil anchors installed within the road reserve areas of Murrumbidgee Avenue and/or Belgrave Esplanade in conjuction with the construction of the "tanked" basement carpark area shall be removed completely from these areas at the completion of the works. Certification to this effect shall be provided by the site Supervising Engineer prior to the issue of an Occupation Certificate.

38 Landscaping Requirements

These conditions are imposed to ensure the retention and enhancement of the existing landscaping.

67 Irrigation system

The communal open space areas shall be provided with a water efficient irrigation system to enable effective landscape maintenance. Details of this shall be provided in the landscape plan which shall accompany the Construction Certificate.

68 Street Planting

Street tree planting to enhance the visual character of the area shall be provided within the footpath area fronting the subject site utilising four (4) Eucalyptus botryoides trees along the Murrumbidgee Avenue frontage and six Callistemon viminalis trees along the Belgrave Esplanade frontage, each with a minimum pot size of 45 litres in accordance with Council's "Urban Street Tree Planting Guide".

69 General Landscaping Condition 1

Subject to condition 68 there shall be no landscaping works within the road reserve.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.

70 Works As Executed Information

Certification shall be provided from a registered surveyor to the effect that:

b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

71 Works As Executed Drawings

Certification shall be provided from the supervising engineer to the effect that:

72 Validation report for contamination

A Validation report must be submitted with the Occupation Certificate and Completion Report. The Validation report must say whether the site is suitable for its intended use or not. The Validation report must include results of sampling the walls and floor of the excavated site. The Validation report must also include details of groundwater sampling. Sampling and validation must be done in accordance with NSW EPA 'Guidelines for Assessing Service Station Sites' and NSW EPA Sampling Design Guidelines'.

73 Certification Adaptable Unit and Disabled Access

Certification shall be provided by a person suitably accredited by the Association of Consultants in Access Australia, that the development has been constructed in accordance with the following requirements:

74 Set out of Building

Certificate from a Registered Surveyor certifying that the building has been set-out in accordance with the requirements of the development consent.

75 Level of Lowest Floor

Certification from a Registered Surveyor certifying that the lowest floor (or the initial floor construction) of the development has been constructed in compliance with the levels approved by this development consent.

76 Discharge to Sewer

Certification as part of the Works As Execute drawings that any discharge to the sewer from the subject premises is in accordance with the requirements of the Trade Waste Section of Sydney Water Corporation Ltd.

77 Noise Emission - Equipment

Certification from a suitably qualified Acoustic Engineer certifying that the noise from all sound producing plant, equipment, machinery, mechanical ventilation and / or the refrigeration system complies with the terms of the development consent.

78 Mechanical Ventilation

Certification from a suitably qualified Mechanical Engineer certifying that all work associated with the installation of the mechanical ventilation systems has been carried out in accordance with the conditions of the development consent.

79 Works in Roadway

A Compliance Certificate from an Accredited Certifier certifying that all works undertaken in the road reserve have been completed in accordance with the conditions of the Road Opening Approval.

80 Energy Efficiency

Certification shall be provided by an NatHERs accredited certifier verifying that the development has attained the energy efficiency rating requirements specified in this development consent and detailing the type and efficiency rating of any energy efficiency devices installed in the development.

81 Stormwater Treatment

Certification shall be provided from an Accredited Certifier prior to the issue of an occupation certificate for the development verifying that the stormwater treatment measure and positive covenant have been implemented in accordance with the requirements of this condition.

82 Prior to Occupation or Use of the Development

The Development shall not be occupied or used until:

83 Completion Report

A Completion Report shall be submitted to Council by the Principal Certifying Authority. This report shall contain the following information. This report shall accompany the Final / Interim Occupation Certificate and shall be submitted prior to occupation.

84 Final site Inspection

Prior to the issue of the Subdivision or Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant's Supervising Engineer and Council's Compliance Officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed.

Note: An inspection fee of $150.00 applies (Account No. 1721550).

39 Subdivision Plan Requirements

The following conditions have been imposed in relation to the preparation and release of the Linen Plans of Subdivision.

85 Positive Covenant - Stormwater Treatment

A positive covenant shall be created on the title of the property pursuant to Section 88E of the Conveyancing Act, 1919 as amended and, if appropriate, Section 7(3) of the Strata Titles Act, 1973 with respect to the maintenance of any stormwater treatment measure required as a condition of this development consent. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of stormwater treatment facilities. The location and extent of the treatment measure shall be delineated on the Linen Plan of Subdivision.

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

86 Noise Control - Design of Plant & Equipment

Note : The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

87. If required by the proprietor of 11 Murrumbidgee Avenue, the applicant shall provide a suitable landscape screen at the front boundary of that property to screen headlight glare to the front windows of the property to the council’s satisfaction.

_________________________

R Hussey

Commissioner of the Court

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Citations

Barton Corporation Pty Limted v Sutherland Shire Council [2004] NSWLEC 533

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CITATION:	Barton Corporation Pty Limted v Sutherland Shire Council [2004] NSWLEC 533
PARTIES:	APPLICATION Barton Corporation Pty Limtied RESPONDENT Sutherland Shrie Council
FILE NUMBER(S):	10602 of 2004
CORAM:	Hussey C
KEY ISSUES:	Appeal :- Mixed use commercial/shop top development - streetscape - setbacks - traffic - public interests
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland LEP 2000 Draft Sutherland LEP 2004
CASES CITED:
DATES OF HEARING:	9 & 10/09/04
DATE OF JUDGMENT:	10/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister SOLICITOR Micheal Marney Solicitors RESPONDENT Mr C Mathieson, solicitor