Bathla Constructions Pty Limited v Holroyd City Council
[2007] NSWLEC 572
•30 August 2007
Land and Environment Court
of New South Wales
CITATION: Bathla Constructions Pty Limited v Holroyd City Council [2007] NSWLEC 572 PARTIES: APPLICANT
RESPONDENT
Bathla Constructions Pty Limited
Holroyd City CouncilFILE NUMBER(S): 10552 of 2007 CORAM: Hussey C KEY ISSUES: Section 96 Application :- Mixed use development, roof top terrace to be used as an enclosed barbeque area, loss of privacy, overlooking and noise LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 30/08/2007 EX TEMPORE JUDGMENT DATE: 30 August 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr C Gough, solicitor
of Storey & GoughRESPONDENT
Mr R. Graham, solicitor
of Home Wilkinson Lowry Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
10552 of 2007 Bathla Constructions Pty Limited v Holroyd City Council30 August 2007
- This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 The matter concerns an appeal against council’s refusal of a s 96 modification application to a mixed use development comprising ground floor level shops and shop top housing on the property located at 17 Beresford Road Greystanes.
2 Council’s development consent originally allowed for the demolition of the existing structures on the site and the erection of a 3-storey mixed commercial residential building which contains 4 ground level commercial premises and 5 residential units above. Part of that consent included a rooftop terrace, for which there are no conditions or restrictions on its usage.
3 The s 96 modification proposes the inclusion of additional recreational use facilities in the form of an area for seating that is covered and an enclosed area for a barbeque on the terrace. The council initially raised a number of contentions which are contained in the Statement of Facts and the issues can be summarised as follows:
- Character and amenity issues; the proposal does not satisfy the objectives of the Neighbourhood Business 3(b) zone because it will effectively present as a 4-storey development.
- Bulk and scale issues; the additional awning structure will present as 4-storey is and will adversely affect the law of the streetscape.
- Visual privacy; the potential overlooking from increased use of the terrace will adversely affect the amenity of neighbouring properties.
- Noise impact/amenity; arising from increased usage of the rooftop terrace.
- Public interest matters.
4 There was an initial on-site inspection where a number of objectors were given the opportunity to express their concerns. Those concerns went to possible loss of privacy due to overlooking and noise arising from the increased use of the terrace. The objectors were concerned about the undesirable impacts from this increased usage and there was general dissatisfaction expressed regarding the type of development in this locality.
5 These concerns have been reassessed by the applicant for today’s hearing and further amendments made whereby the perimeter planter boxes on the rooftop terrace have been widened and with their planting that should restrict overlooking to a reasonable extent and minimise to some extent noise nuisance.
6 The floor of the terrace is to be covered with synthetic grass, which should assist in the reduction in noise emissions from the terrace area and the barbeque area is to be enclosed, again to minimise any amenity disturbances.
7 Additional conditions of consent to address the matters raised by the objectors have been discussed today and I am satisfied that the conditions that were put forward in Exhibit 2 can be further refined by way of the plan of management (POM) that the parties have discussed. The key point for inclusion in the POM concerns the imposition of performance conditions to restrict the use of the terrace to thereby limit external amenity impacts to acceptable community standards.
8 Accordingly, I am satisfied in concluding that the s 96 modification relates to the same development. Also, that the objectors have been notified and have been given an opportunity to consider the modifications. Consequently, I am satisfied that the modifications together with the associated conditions of consent incorporating the plan of management for the use of this area now merits the approval of the s 96 modification.
1. The appeal is upheld.
2. The s 96 modifications to the development application No. 2003/685/02 is allowed in accordance with the conditions in Annexure A.
3. The exhibits be returned except for A and 3.
___________________
- R Hussey
Commissioner of the Court
ljr
Annexure “A”
Modified Conditions of Consent
Premises: 17 Beresford Road, Greystanes
Section 96(2) Modifications To Development Consent ...2003/685
Modification Application No: 2003/685/02
shall be amended and read as follows:
2. Development shall take place generally in accordance with the attached endorsed plans:
Architectural plans prepared by Zhinar Architects:
- Job No. DA. 01, Issue A, dated 30 September 2005;
- Job No. 3736 DA:02, Issue B, amended 19 January 2006;
- Job No. 3736 DA:03, Issue C, amended 6 March 2006,
- Job No. 3736 DA:04, Issue C, amended 6 March 2006; and
- Job No. 3736 DA:05, Issue C, amended 6 March 2006.
Landscape plans prepared by: Precinct Landscapes, Drawing No. 1299-IA, amended 13 June 2003; and
- Vision Dynamics, Drawing No. 06035DA 1, Revision A, dated 6 March 2006.
- On-Site Detention plans prepared by Rammy Associates Ply Ltd, Job No. sep26021- dl, Sheet 1, amended 10 June 2003, and Job No. sep26021-d2, Sheet 2, amended 25 November 2002 (Council OSD Plan No. 2003-019)
- Waste Management Plan approved by Council 21 January 2003; and
- Schedule of external colours and finishes prepared by Zhinar Architects, Job No. 3736, Issue 1, submitted to Council 7 October 2005 in conjunction with the Section 96(2) Application, and additional details submitted to Council 4 April 2006.
Plus the following plans prepared by Zhinar Architects:-
- Roof Terrace and Roof Plans being plan no. 3736 CC:04 issue "E".
- Elevations and Section Plans being plan no. 3736 CC:05 issue "G"
- Elevations and Section Plans (Roof Terrace and internal elevation) being plan no. 3736 CC:06 issue A".
The last three additional plans referred to above being the plans tendered before the Court on 30 August 2007.
are added and shall read as follows:
Noise & Amenity
106. The use of the Roof Top Terrace shall not generate any noise that is audible within any dwelling or dwelling house after 10.00pm and before 7.00am seven days a week.
107. For the purposes of preserving the amenity of neighbouring occupations and residents, hours of use of the terrace are to be restricted to between 7.00am and 10.00pm.
108. There shall be no amplified music at any time in relation to the use of the roof terrace.
109. Noise from the use of the exhaust fan (as per Elevations and Section plans prepared by Zhinar Architects, job no. 3736 CC:05, Issue G. dated 23/07/07 and job no. 3736 CC:06 Issue A. dated 02/08/07) in association with the BBQ/store on the roof terrace shall not exceed the background level by more than 5dB and shall not be audible in any premises of a difference occupancy between 10.00pm and 7.00am.
110. Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads, and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with AS 4282-1997, Control of the obtrusive effects of outdoor lighting.
111. No rubbish or items are to be thrown over the edge of the building.
112. Garbage bins are to be provided on the roof terrace and emptied two (2) times per week.
113. The number of people occupying the roof terrace shall not exceed fifteen (15) people at any one time.
114. There are to be no barbeques facilities operating on the roof terrace, apart from the two hotplates provided within the BBQ/store.
115. The Rooftop level of the subject premises shall at all times be used only in accordance with these conditions and the Management Plan which is annexed hereto and marked "AA" and shall be deemed to be incorporated in these conditions and construed at all times as part hereof.
_______________________
R Hussey
Commissioner of the Court
Annexure “AA”
Plan of Management
For
17 Beresford Road, Greystanes
August 2007
This plan establishes guidelines that are to be adhered to in the use of the terrace which aim to address neighbourhood amenity concerns.This Management Plan has been prepared to address the use of the terrace on the top level of 17 Beresford Road, Greystanes ("the terrace").
A sign is to be erected and maintained on the terrace setting out the key requirements of the Plan of Management.It is the responsibility of the Owners Corporation, Owners and occupiers to ensure that the Plan of Management is fully implemented and adhered to during the use of the terrace. All owners and occupiers are to be provided with a copy of this Plan at the time they become owners/occupiers of the building.
It is the duty of the Owners Corporation and each individual owner to ensure that no undue impact is caused to the amenity of adjoining land uses in the locality. The Owners Corporationis to ensure that surrounding land owners and occupiers are delivered a copy of the Plan of Management and phone number of the contact person.Neighbourly relations are important in regards to the use of the terrace. The Owners Corporation shall ensure that good relations are maintained with neighbours.
The Owners Corporation must be available to discuss and consult with any surrounding resident, when requested.
3. OPERATION ASPECTS
3. A sign is to be erected and maintained on the terrace in the following terms:
TO ENSURE THAT THE USE OF THIS TERRACE DOES NOT INTERFERE WITH ADJOINING PROPERTIES, ACTIVITIES INVOLVING LOUD NOISES SHOULD BE AVOIDED AT ALL TIMES.
3.1 A contact telephone number shall be given to all adjoining neighbours to enable such neighbours to advise when noise from the terrace can be heard within their dwellings after 10pm. Upon receipt of such advice the contact person shall ensure that noise from the terrace shall be reduced.
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