Bathla Investments Pty Limited v Blacktown City Council - [2008] NSWLEC 1506

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Bathla Investments Pty Limited v Blacktown City Council [2008] NSWLEC 1506

PARTIES:
APPLICANT
Bathla Investments Pty Limited
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10964 of 2008

CORAM: Murrell C

KEY ISSUES: Section 96 Modification :- Threshold question whether substantially the same development. Objections concerns - privacy, overlooking, overshadowing, 2-storey rather than single storey, merit consideration.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Thomas v Pittwater Council (2003) NSWLEC 19
Vasic v Penrith City Council
Motor Projects No 2 v North Sydney Council
North Sydney v Michael Stanley (1998) 43 NSWLR 468
Eaglecorp Property Consultants Pty Limited v Wollongong City Council [2008] NSWLEC 1377
Tyagrah Holdings Pty Limited v Byron Bay Shire Council (2008) NSWLEC 1420

DATES OF HEARING: 09/12/2008

EX TEMPORE JUDGMENT DATE: 9 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Castellan, solicitor
of Ritchie & Castellan
RESPONDENT
Mr T. O'Connor, solicitor
of Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

9 December 2008

10964 of 2008 Bathla Investments Pty Limited v Blacktown City Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an appeal under s 96 (6) of the Environmental Planning and Assessment Act1979 against Blacktown City Council’s refusal of an application to modify a consent issued by the council on 2 May 2006. The notice of determination describes the development as medium density housing comprising 83 bedroom townhouses.

2 The subject site at 23 Meacher Street, Mount Druitt is a vacant site sloping from the street towards the rear. Opposite the subject site is a public open space area that has been planted with natives. To the east of the subject site there is an integrated housing development that fronts Notley Street. To the west of the site is an attached villa development built approximately in the 1960’s - 1970’s. Immediately on the boundary with the subject site is a continuous element of flat roofed car ports for the villa development. At the rear of the subject site there is an older style attached villa development that is some four to five metres from the rear boundary of the subject site.

3 At that time the matter came to appeal and the council identified two contentions. They are that the development is not substantially the same development and then the council noted issues raised by objectors.

4 The development application was submitted as one that is of minor impact under s 96(1) although I do note that the council advertised the amended application and as a result there were resident objections to the proposal.

5 The objections relate to the development being of a two storey nature adjoining the existing single storey older style integrated housing and villa developments. The objections also relate to privacy in terms of the two storey elements of the proposed townhouses. Other issues raised include drainage and sun and cool breezes in particular for the properties at numbers 7A and 7B Notley Street. Whilst there were no objectors on site the Court has had regard to the residents’ objections to the proposed s 96 modification application.

6 The only issue or contention the council presses in the proceedings is whether the proposed development is substantially the same development. The council’s senior assessment planner, Mr Apps, has prepared a joint report with the applicant’s planning expert, Mr White. At the end of the day there is agreement between the planners that there are no merit issues that would warrant refusal of the s 96 modification application. As such, the Court was provided with submissions on the threshold question of substantially the same development.

7 Under s 96(2) of the Environmental Planning and Assessment Act 1979 a consent authority may on application modify the consent if “it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted”. As such this is the threshold question for my determination this afternoon.

8 The application originally submitted and approved was for 8 x 3 83-bedroom townhouses. The approved application provided for four buildings, with a number of the townhouses attached, that is, the front townhouses 1 and 2 with street frontage and vehicular access to the street were attached with a shared driveway. They now appear as two separate dwellings. The double garages have also been changed to single garages with tandem space for parking in the driveway. The townhouses 3 to 6 which were partly joined have now all been separated and there is single garaging provided and there is also a space for car parking between each of the dwellings, one attached to each townhouse. The rear townhouses have been reconfigured on the site and remain as two storey buildings with double garages but with a different floor plan to previously. They were separate buildings in the approved development application.

9 The Court must approach this matter not in terms of the merits, the question of substantially the same development to that originally approved is a threshold question and I must look at the facts to inform me as to whether in my assessment it is substantially the same development. That is, it is on the facts and not in terms of the assessment and in this regard I refer to previous judgments of this Court which have been summarised conveniently in the matter of Thomas v Pittwater Council (2003) NSWLEC 19, a judgment of his Honour, Lloyd J, wherein this judgment refers to Vasic v Penrith City Council and in comparing the before and after situations one must have regard to the way in which the development is to be carried out.

10 A further judgment referred to in Thomas is Motor Projects No 2 v North Sydney Council of Bignold J where he states:

“The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where the comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative as well as quantitative, of the developments being compared in their proper contexts including the circumstances in which the development consent was granted.”

11 The other case referred to the Court by the partiesis the one of North Sydney v Michael Stanley (1998) 43 NSWLR 468.

“Modified has been held to mean to alter without radical transformation and substantially the same to mean essentially or materially the same.”

12 These cases were cited in subsequent judgments, Eaglecorp Property Consultants v Wollongong City Council (2008) NSWLEC 1377. The respondent also referred the Court to other cases including Dildem v Holroyd Council where her Honour, Pearlman CJ, looked at a development application in terms of whether it was substantially the same and the other judgment that was referred to the Court by the respondent is Tyagrah Holdings Pty Limited v Byron Bay Shire Council (2008) NSWLEC 1420. This is a judgment of Commissioner Bly and Commissioner Bly conveniently summarises at para 10:

“The provisions of s 96 have been judicially considered on a number of occasions and the following are the relevant important findings or principles that can be utilised in considering whether or not a particular development is substantially the same development as the development for which the consent was originally granted:

1. The word “substantially” means essentially or materially having the same essence. In assessing whether the test is met a factual comparison between the approved development and proposed modifications is required.

2. The question must be asked and answered with respect to the particular circumstance of the individual modification application.

3. It is for the decision maker to decide the relevant range of facts to assist in determining the question.

4. Even though certain modifications of development may be described as significant this does not mean that the modified development could not necessarily remain substantially the same as the approved development. A comparison process involves an appreciation of both qualitative and quantitative.

5. Any planning appraisal of the modified development is not relevant to the threshold question.”

13 Commissioner Bly notes at para 12:

“Each of these changes is significant in its own way but this does not in itself mean that the modified development is not substantially the same.”

14 The Court in its assessment has had regard to the joint report and I note in the respondent’s plan, and Mr Apps notes, as follows: there are numerous differences between the approved development scheme and that for which consent is now sought. In particular:

floor plans for each dwelling have changed,
all dwellings have increased from three to four bedrooms.
elevations for each dwelling have changed,
upper floor components have increased in size,
dwellings 1 and 2 were attached, they are now detached,
dwellings 3 to 6 were attached, now detached,
all dwellings had double garages,
dwellings 1 to 6 are now proposed with single garages,
dwellings 1 and 2 proposed to have a shared wider driveway crossing, it is now proposed to provide separate crossing of each to 1 and 2.
three visitor car parking spaces were proposed adjacent to the eastern boundary.
this is now four car parking spaces.
dwelling number 8 has been moved closer to the northern boundary from 10.3 to 2.3 metres.
dwelling 7 moved closer to the western boundary from 7.1 to 2.5.
dwellings 3 to 5 have been moved closer to the western boundary from 7.2 to 4.2.

15 Mr Apps is of the view that “these changes are not insignificant in number or in their outcome. Section 96 is a mechanism by which changes may be made to a development consent or approved plans. It is, however, not a vehicle for wholesale changes to be made to the proposed development.” He states further:

“A s 96 application should not result in the need to carry out a full assessment of a proposed development against the provisions of the DCP and other relevant planning guidelines”.

16 Mr Apps is of the opinion that the changes are so significant in scope and number as to require a full re-assessment to be necessary.

17 However, I am of the view that this falls into the second stage, that is, the merits assessment and whether a full re-assessment or assessment of whatever components are triggered in terms of s 79C of the Environmental Planning and Assessment Act 1979 this falls into the second stage which is the merit assessment of the application as opposed to whether it is substantially the same development.

18 Mr White sets out why he considers the proposed s 96 application is substantially the same development. In many respects his justification as to why it is substantially the same development also falls into the merits assessment stage.

19 The Court today has had the benefit of the experts also giving evidence to the Court. Every s 96 application must be assessed on its own facts. As I stated, this is a rather unique situation whereby, in Mr Apps’ words, if one was to provide clouds around the changes it would in fact encompass the whole of the plan sheets and I do not disagree with this. However, in terms of the threshold question that I must address, that is, substantially the same development this is in a qualitative as well as quantitative sense and the comparative task and whether it is essentially and materially of the same essence.

20 On close examination of the plans I am satisfied that the application is one that can be considered under the provisions of s 96 and I say this for the reason that I note the original development application was submitted and determined as comprising a medium density development with eight townhouses of three bedrooms. It is now proposed that the townhouses have four bedrooms so the descriptor is different in this regard. I also note that the configuration whilst there has been a change in terms of the footprints on the ground nonetheless the townhouse development will present as materially and essentially the same development, that is, a townhouse development with a driveway along the eastern boundary with communal open space along the eastern boundary also.

21 The individual changes are too many and too numerous to identify. Mr Apps identified the more significant changes which I have just quoted above. The changes are numerous but that in itself is not the test either, it is whether it is materially and essentially the same development and on a qualitative and a quantitative assessment comparing the two sets of plans I am satisfied that it satisfies the threshold question established in the Environmental Planning and Assessment Act at 96(2)(a).

22 That now leads me to an assessment in terms of the merits of the application. As I stated, both the planners agreed that there are no outstanding merit issues which would warrant refusal of the development application.

23 Having regard to the objectors’ concerns, they are matters of relevance for the Court to take into consideration and I must also have regard to the matters under s 79C, that are of relevance. As noted by Mr Apps, this application in many respects does require a comprehensive assessment in terms of s 79C but I am also satisfied that he has carried out a comprehensive and detailed assessment of the application.

24 The Court raised some concerns that the planning experts conferred on in terms of achieving greater separation between the villa development to the north and the villa development to the east. In this regard a four metre minimum setback is required for the proposed townhouse development. It is noted that in particular the development to the rear is an older style development and courtyards of some four and five metres in depth are only provided before the face of the dwelling and as such to provide for reasonable separation there should be at least a four metre setback on the subject site for the townhouses 7 and 8 at the rear. Similarly, there is a greater setback to the integrated housing development fronting Notley Street which is a minimum of seven metres for number 7B and ten metres for 7A. The other dwellings within the same integrated development are not impacted to the same extent because they have the benefit of the communal open space and the driveway to separate their open space.

25 The applicant has agreed that the plans could be modified to provide for the required four metre minimum separation distance and this would require the deletion of a bedroom from each of the two townhouses such that two townhouses within the development would then provide for three bedrooms as opposed to four which are contained within townhouses 1 through to 6.

26 The respondent’s expert also provided advice with respect to the amended landscape plan (which was only received today as well) and has made some positive comments in terms of how it could also be further modified to improve the landscaping for the subject site. It is noted that the landscaping of older developments is minimal as there was not the same emphasis on landscaping. . However, this site does have the advantage of rising towards the rear and an outlook to the public open space which is vegetated. Similarly, this site should provide for a contribution to the vegetation within the area and would also soften the impact of not only the proposed development but provide amenity for the adjoining developments.

27 With respect to the western boundary which is adjoined by car ports this does not present an issue in terms of the setbacks because of the driveway and car ports to the older style villa development and, furthermore, the proposal provides for courtyards on the western boundary that adjoin the development.

28 Therefore, on the basis of my assessment I am satisfied that the threshold question is one that is satisfied being substantially the same development. And in terms of my overall merits assessment with the assistance of the experts I am also satisfied that with a further amended plan this would provide for a maintenance of amenity for the adjoining developments. That is, the integrated housing and villa developments, and also in terms of the internal amenity for the subject proposal.

29 It was pointed out that the statutory planning framework is the Blacktown Local Environmental Plan and the site is zoned and identified as one that can permit two storey townhouse development. Medium density development under the LEP means “three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling but does not include other forms of development.”

30 It was submitted on behalf of the respondent that the proposal in some respects is more akin to integrated housing which means “development that consists of the subdivision of land into five or more allotments and the erection of single detached dwelling houses on each allotment created by that subdivision where a single application for consent for the subdivision and other development is submitted.”

31 That is not the case in this matter. This is proposed to be a Torrens Title development with a common area and it is not an application for integrated housing but still one for medium density development.

32 The zone is 2(a) and the objectives are:

to identify existing residential areas of a predominantly single dwelling character;
to maintain that character by prohibiting residential flat buildings;
to enable sensitive infill development of other housing types with the bulk and scale and appearance that does not adversely impact on adjoining development or the amenity of the locality;
to enable development for a variety of housing forms including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking or loss of privacy.

33 I am satisfied that the proposed development to be amended satisfies the above objectives. It was pointed out earlier in the proceedings that the modification application complies with all the relevant local planning regime provisions but it is also important that one has regard to the amenity of adjoining properties which is a clear requirement of the zone objectives. As such the plan must be amended on a merits assessment to have regard to the amenity of the adjoining developments.

34 The subject site in this 2(a) zone is edged in heavy black and as such it is one that has permissible on the land two storey townhouse development. Many of the residents’ concerns are with respect to the provisions of the instrument as such. That is not a matter for my consideration. I must assess the application in the context of the statutory planning framework and whilst the objectors are concerned about two storey development the zone clearly contemplates such development.

35 On the basis of my assessment above and on the receipt of an amended landscape plan and amended architectural plans I will issue the formal orders of the Court. As such I require a consolidated set of conditions such that the original conditions together with the changes triggered by the modification application with the new plan numbers will be required.

36 In that regard, just to clarify, the windows for townhouse number 8 for the upstairs area will be only those that are for the stairwell area such that there will be a reversal of the bedrooms so that those bedrooms would then be inwardly facing as this will alleviate privacy concerns for 7A and 7B and then the deletion of the bedrooms as required with the minimum setback areas, the amended plans also to show the chamfering of the rear yard of townhouse 1 such that a canopy tree can be provided for the amenity of the area and the amended landscape plan to also show the requirements that Mr Apps has identified in Exhibit 7 and also to show the street tree plantings and significant canopy trees on site.

37 Accordingly formal orders of the Court on receipt of the above will be:

Environmental Planning and Assessment Act

___________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Bathla Investments Pty Ltd v Blacktown City Council

Terminology

1. Any reference in this consent to a Construction, Compliance, Occupation or Subdivision Certificate is a reference to such certificates as defined by Section 109C of the Environmental Planning and Assessment Act 1979.

Scope of Consent

2. This consent relates to the following drawings/details submitted to Council with the Development Application:

Drawing No: Dated: Council’s File Enclosure No:
4244DA01 Issue B December 2008 22A
4244DA02 Issue B December 2008 22B
4244DA03 Issue B December 2008 22C
08143DA1 Rev. B 15 December 2008 22D

2A. The applicant shall submit a revised Stormwater Concept Plan to accord with the approved site development layout prior to release of any Construction Certificate for the subject development”.

3. Prior to construction of the approved development it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued either by Council or an appropriately accredited certifier. A separate application, complete with detailed plans and specifications, must be made for the Construction Certificate.

Other Necessary Approvals

4. The applicant’s attention is drawn to the need to obtain Council’s separate approval for any ancillary activity not approved by this consent, including:

(a) the removal of any tree(s) not indicated on the approved plans and any tree(s) located greater than 3 metres from the building perimeter.

(b) any fencing located forward of the proposed building and exceeding the heights specified in the Table to Part 1 of Council’s Local Approvals Policy.
(c) The erection of any retaining walls, not being “Exempt Development” within the BLEP 1988.

Services

5. The applicant is advised to consult with:

(a) Sydney Water Corporation Limited;

(b) Integral Energy;

(c) Natural Gas Company; and

(d) the relevant telecommunications carrier

6. Information regarding the location of underground services may be obtained from the Sydney “Dial Before You Dig” service, telephone number 1100, fax number (02) 9806-0777. Inquirers should provide the street/road name, side of street/road and the nearest cross street/road.

Payment of Fees

7. If it is the applicant’s intention to engage Council to undertake the checking of Engineering design plans and the issue of the Engineering Construction Certificate, it will be necessary to submit the relevant engineering plans in order that a quote for services can be provided.

8. If it is the applicant’s intention to engage Council to undertake Construction Inspections and the issue of the Engineering Compliance Certificate, it will be necessary to contact Council’s Development Services Engineer for a quote.

A verbal quote will be provided within 48 hours based upon Council’s Goods and Services Schedule. Written confirmation will be provided.

Other Fees and Security Deposits

9. The payment of the following fee to Council’s Maintenance Section pursuant to Section 608 and 609 of the Local Government Act 1003. The fee is subject to periodic review and may vary at actual time of payment.

(a) Vehicular Crossing Application and Inspection Fee: $ 190.00

Other Necessary Approvals

10. A separate application or details (as necessary) shall be submitted for the separate approval of Council, under the provisions of the Local Government Act 1993 or Roads Act 1993, for any of the following:

(a) The installation of a vehicular footway crossing servicing the development, as required by this consent.
(b) Works on or occupation of existing public roads that are not covered by a Roads Act Approval which may require a Road opening, Road Occupancy or Work Zone Permit.

Other Matters

11. No form of subdivision is approved by this development consent. A separate Development Application is to be submitted for any strata subdivision of the development when the development is completed.

PRE-CONSTRUCTION CERTIFICATE MATTERS (PLANNING)

Preamble

12. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

Section 94 Contributions

13. The following monetary contributions pursuant to Section 94 of the Environmental Planning and Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the time of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE: Council does not accept the payment of S.95 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) either by Council or any accredited certifier, whichever occurs first.

Contribution Item Base Amount Relevant C.P Base Date
(i) Open Space $27,350 C.P No.3 1.3.05
(ii) Local Roads $23,376 C.P No.4 1.9.04
(iii) Trunk Drainage $19,370 C.P No.4 1.9.04
(iv) Tree Planting $366 C.P No.10 1.3.05

The contributions will be indexed according to the Australian Bureau of Statistics’ Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings).

Copies of the following relevant Contributions Plans may be inspected/purchased from Council’s Development Services Unit:

S.94 CP No.3 – Open Space in Established Residential Areas
S.94 CP No.10 – Tree Planting on nature Strips
S.94 CP No.4 – Mt Druitt Development Area

The Section 94 Contributions have been based on the site’s road frontage and the potential additional population nominated below. Should amendments change the additional population, the Section 94 Contributions will be adjusted accordingly.

Additional Population: 26.4 persons
Road Frontage: 30.48 metres

Other Fees and Security Deposits

14. Prior to the issue of a Construction Certificate, whether by Council or by an appropriately accredited certifier, the following fee and bond are to be paid to Council. The fee and bond are subject to periodic review and may vary at the actual time of payment.

Road Inspection Fee: $ 129.00
Road Maintenance Bond: $ 2,481.00
Administration Fee: $ 68.00

15. The Road Maintenance Bond is a bond which is taken to cover the cost of any damage to Council’s assets (e.g. drainage systems, footpaths, kerb and guttering etc) arising from private development work. The bond will be refunded (less administration costs) should no damage be caused to Council’s assets adjacent to the development site as a result of the construction works.

The Road Inspection Fee covers the cost of an inspection of the road and footpath adjacent to the site at the commencement and at the completion of work.
Note: The above fees are valid only to the end of the financial year after which a new figure will apply.

Consistency with Approved Development Plans

16. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs comply (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans.

Other Matters

17. Council is particularly concerned about the appearance of the development. Accordingly the following additional information is required to be submitted for its separate approval:

(i) a permanently installed hardwood vertical slat table with 2 matching bench seats supported on galvanised steel legs under the gazebo/pergola.

(ii) include pre-painted open metal (pool type) fencing around the Common Open Space area with a minimum height of 1.2 metres and self closing latch top child proof access.

(iii) include bollard type lighting in the driveway and common open space area.

Landscaping/Appearances

18. The reflectivity index of glass used in the external facade of the building is not to exceed 20 percent.

19. Any bathroom, w.c. or laundry window in the external walls of all townhouses (including all ensuite and bathroom windows of Unit 8) shall be fitted with translucent glazing.

Other Matters

20. The internal driveway and parking areas are to be designed in accordance with Australian Standard AS2890.1. The 4 visitor spaces are to be provided with concrete wheel stops to prevent damage to the boundary fence from vehicles.

21. 16 resident and 4 visitor car parking spaces are to be provided on site, with each space designated in accordance with Australian Standard 2890.1 as follows:

(i) Covered Double Garage: 5.5m x 5.5m
(ii) Covered Single Garage: 3m x 5.5m
(iii) Uncovered Car space: 2.5m x 5.4m

The 4 visitor spaces are to be those shown located between Unit 8 and the Common Open Space Area.

Service and Service Authorities’ Clearances

22. The following documentary evidence is to be obtained prior to the issue of any Construction Certificate:

(a) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Applications must be made through an authorised Sydney Water Servicing Coordinator.

A copy of Sydney Water’s Notice of Requirements must be submitted to the Principal Certifying Authority prior to the occupation of the development/release of the plan of subdivision, whichever occurs first.

(b) A “Notification of Arrangement” Certificate from Integral Energy, stating that electrical services have been made to the development.
(c) A written clearance from Telstra or any other recognised communication carrier, stating that services have been made available to the development or that arrangements have been made for the provision of services to the development.

Other Matters

23. The applicant is to submit amended plans showing that the width of the driveway shall be 6m wide for the section of driveway between the front property boundary and the front building setback with the Construction Certificate plans.

24. A report to be obtained from a consultant accredited by the NSW Department of Environment and Conservation to establish what (if any) fill has occurred on the site. A copy of this Report is to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate for the development.

Any fill on the site is to be removed and the site returned to its natural ground level. A new survey plan is to be submitted with the Construction Certificate to verify that the site has been returned to its natural levels and any necessary amendments to the finished floor levels.

25. Deleted.

PRE-CONSTRUCTION CERTIFICATE MATTERS (BUILDING)

Preamble

26. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

Compliance with Building Code of Australia

27. All aspects of the building design shall comply with the applicable performance requirements of the Building Code of Australia so as to achieve and maintain acceptable standards of structural sufficiency, safety (including fire safety), health and amenity for the ongoing benefit of the community. Compliance with the performance requirements can only be achieved by:

(a) Complying with the deemed to satisfy provisions, or
(b) Formulating an alternative solution which:

(i) complies with the performance requirements, or
(ii) is shown to be at least equivalent to the deemed to satisfy provision, or

(c) A combination of (a) and (b).

Site Works and Drainage

28. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, shall be designed by an appropriately qualified person. Details are to be included with the plans and specifications to accompany any Construction Certificate.

29. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities of 159mm per hour over an average recurrence interval of 20 years. The design shall:

(a) be in accordance with Australian Standard 3500.3.

(b) provide for drainage discharge to an existing Council drainage system.

(c) ensure that the development, either during construction or beyond completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.
It must be noted that the abovementioned rainfall intensity and average recurrence interval are increased to 208mm per hour and 100 years respectively, whenever On-Site Stormwater Detention is imposed as an engineering requirement of this consent.

30. Soil erosion and sedimentation control measures shall be designed in accordance with Council’s Soil Erosion and Sedimentation Control Policy. Details are to be included with the plans and specifications to accompany any Construction Certificate.

PRE-CONSTRUCTION CERTIFICATE MATTERS (ENGINEERING)

Preamble

31. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or by an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

Content and Type of Construction Certificate

32. Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by this consent which do not require separate Roads Act or Local Government Act approval, and any ancillary works necessary to make the construction effective.

33. Where this consent requires both engineering and building works to be undertaken, a separate Construction Certificate shall be issued for each category of works, i.e. a separate Engineering Construction Certificate (for any road works requiring dedication of such works as public road or creation as a private road, on-site stormwater detention, inter-allotment drainage etc) and a separate Building Construction Certificate (for all works relating to the erection and fit out of a structure). This excludes all works on existing public roads significant enough to warrant separate engineering approval pursuant to the Roads Act 1993. In relation to this consent an Engineering Construction Certificate and/or engineering approval pursuant to the Roads Act 1993 must be issued for the drainage works in Meacher Street prior to the issue of a Building Construction Certificate.

Council does not permit the private certification of works on existing public roads or reserves, or any land under the care and control of Council. In this regard, Council will not accept a Construction Certificate or Compliance Certificate from a Private Certifier for any works in Meacher Street.

Required Design Specification

34. All engineering works required by this consent must be designed and undertaken in accordance with the relevant aspects of the following documents, except as otherwise authorised by this consent:

(a) Blacktown City Council’s Works Specification – Civil (Current Version)

(b) Blacktown City Council’s Engineering Guide for Development (Current Version)

(c) Blacktown City Council Development Control Plan (Current Version)

(d) Blacktown City Council Soil Erosion and Sedimentation Control Policy
NOTE: Any variation from these design requirements must be separately approved by Council.

Soil Erosion and Sedimentation Control

35. Soil erosion and sedimentation control measures for road drainage/OSD works shall be designed in accordance with Council’s Soil Erosion and Sediment Control Policy. Details are to be included with the plans and specifications to accompany any Construction Certificate.

Drainage

36. Where the internal driveway cannot be drained to an internal pit a grated drain shall be provided at the property boundary.

Required Design Specification

37. A Traffic Control Plan shall be included as part of the Engineering Construction Certificate for road and drainage works to be carried out within public road reserves in strict compliance with the requirements of current Australian Standard 1742.3 (Traffic Control Devices for Works on Roads) and current RTA Traffic Control at Work Site manual. Any persons preparing such traffic control layout plans shall have the relevant RTA accreditation.

Other Matters

38. No work shall be undertaken within adjoining public lands without the prior written consent of Council. The applicant is to liaise with Council prior to commencing design works, and Council’s approval of design plans and consent in writing for the work on public land shall be obtained prior to issue of the Construction Certificate. All restoration work shall be undertaken by Council at the applicant’s expense unless otherwise approved in writing.

PRIOR TO CONSTRUCTION WORK COMMENCING

Toilet Facilities

39. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of 1 toilet for every 20 persons or part of 20 persons employed at the site.

Each toilet provided:

(a) must be a standard flushing toilet, and

Signs on Building and Demolition Sites

40. A sign must be erected in a prominent position on any work site on which the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the work is prohibited; and

(b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

This condition does not apply to:

(a) building work carried on inside an existing building; or
(b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

Protection of Public Places

41. If the work involved in the erection or demolition of a building:

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or

(b) involves the enclosure of a public place,

A hoarding or protective barrier must be erected between the work site and the public place. Such hoarding or barrier must be designed and erected in accordance with Council’s Local Approvals Policy.

Soil Erosion and Sedimentation Control

42. All measures specified in the Construction Certificate to control soil erosion and sedimentation are to be installed prior to the commencement of construction works. Infringement Notices, incurring a monetary penalty, may be issued by Council where measures are not provided or maintained.

43. A single vehicle/plant access to the development site shall be provided to minimise ground disturbance and transport of soil onto any public place. Such access shall be provided in accordance with the requirements of Appendix F of Council’s Soil Erosion and Sediment Control Policy. As a minimum, single sized 40mm or larger aggregate placed 150mm deep and extending from the street, kerb/road shoulder to the site is to be provided.

Notice of Work Commencement

44. At least 2 days written notice must be given of the commencement of engineering works. Such notice must be accompanied by evidence of the contractors Public Liability and Workers Compensation Insurances.

Notification to Council

45. Notices of Appointment of Principal Certifying Authority and Commencement of Building Work must be submitted to Council at least 2 days prior to work commencing on site. The Notices must be in accordance with the provisions of the Environmental Planning and Assessment regulation 2000.

DURING CONSTRUCTION (PLANNING AND BUILDING)

Compliance with Building Code of Australia

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

Excavations and Backfilling

47. All excavations and backfilling associated with the erection of demolition of a building must be executed safely and in accordance with appropriate professional standards. Such work is to be guarded and protected to prevent it from being dangerous to life or property.

Surveys

48. The buildings shall be set out by a registered surveyor to verify the correct position of each structure in relation to the property boundaries.

Noise Control

49. Any noise generated during the construction of the proposed development shall not exceed the limits specified in the Protection of the Environment Operations Act 1997.

50. The hours of work for any noise generating construction of the proposed development are to be limited to between 7am and 6pm, Mondays to Fridays inclusive, 7am to 1pm Saturdays or if audible on residential premises 8am to 1pm, with no construction activities to be undertaken on Sundays or public holidays.

Construction Inspections

51. Any additional Council inspection, beyond the scope of any Compliance Certificate package and needed to verify the compliance of any work will be charged at the individual inspection rate nominated in Council’s Fees and Charges Schedule.

Maintenance of Soil Erosion Measures

52. All required soil erosion and sediment control measures are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. Infringement Notices, incurring a monetary penalty may be issued by Council where the maintenance of measures is inadequate.

Surface Drainage

53. To prevent surface water from entering the building:

(a) the floor level shall be a minimum of 225mm above finished ground level;

(b) seepage and surface waters shall be collected and diverted clear of the building site by a subsurface/surface drainage system.
Note: Care is to be taken to ensure that no runoff is diverted to adjoining properties.

Building Materials and Wastes

54. Building and construction materials, plant, equipment and the like are not to be placed or stored at any time on Council’s footway or roadway.

55. Suitable and effective builder’s refuse and waste storage facilities are to be provided on the development for the duration of construction works.

Car Parking and Access

56. All required internal driveways and car parking spaces are to be line-marked, appropriately signposted to indicate their intended usage, sealed with a hard standing, all weather material and maintained to a satisfactory usable standard.

57. All internal driveways and other paved areas are to be graded to provide continuous surface drainage flow paths to approved points of discharge.

58. Off street car parking is to be encouraged by the placement of prominent signs indicating its availability.

59. Access to and parking for persons with disabilities is to be provided in accordance with Australian Standard 2890.1.

Tree Protection and Landscaping

60. Barriers, tree guards and other measures employed to protect existing trees on site are to be effectively maintained for the duration of construction works.

61. All landscaping and common open space embellishment is to be undertaken in accordance with approved plans/details. All turfed areas are to finish level with adjoining surfaces and shall fall evenly to approved points of drainage discharge.

62. The visitor car parking spaces and all internal driveways are to be constructed of brisk paving or other materials having a similar aesthetic effect (e.g. stamped concrete) and are to be linemarked and appropriately signposted to indicate their intended usage.

63. All common open space areas and internal driveways are to be appropriately illuminated by the use of bollard lighting or the like to provide for the safety of residential at night.

Ancillary Works

64. Each dwelling unit is to be provided with an open air clothes drying facility within its associated private courtyard or a mechanical facility within the unit.

65. The development is to be provided with fencing and screen walls at full cost to the developer as follows:

(a) Where a screen wall faces the road, pedestrian walkway, reserve or public place, that wall shall be constructed of the same brick as that used in the external wall of the building;

(b) Rear and side boundaries (behind the building line) and private rear courtyards are to be provided with walls/fences 1.8m high and constructed of timber (lapped and capped), colorbond or brick.

(c) The full length of the eastern and northern boundaries shall have a 300mm high lattice capping on top of the 1.8m high fence to provide extra privacy for the adjoining properties. This shall be metal lattice finished in a colour to match the fence to give a total fence height of 2.1m high.

66. Mail boxes are to be provided on site in accordance with the requirements of Australia Post.

Other Matters

67. Deleted.

68. Deleted.

DURING CONSTRUCTION (ENGINEERING)

Ancillary Works

69. Ancillary works shall be undertaken at no cost to Council to make the engineering works required by this consent effective. Such works shall include, but are not limited to, the following:

(a) the relocation of underground services where required by the positioning of new drainage and road infrastructure;

(b) the relocation of above ground power and telephone services;

70. All required soil erosion and sediment control measures are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. Infringement Notices, incurring a monetary penalty may be issued by Council where the maintenance of measures is inadequate.

71. Compliance Certificates are to be issued for works covered by the Engineering Construction Certificate at the completion of the following categories –

Soil Erosion and Sedimentation Control

Construction of Drainage Works

Footpath Works

Traffic Control

Final Inspections

General

72. PUBLIC SAFETY:

The applicant is advised that all works undertaken in a public place are to be maintained in a safe condition at all times. Council may, at any time and without prior notification make safe any such works Council considers to be unsafe, and recover all reasonable costs incurred from the applicant.

Building Materials and Wastes

73. Roads adjoining the site must be kept clean and free of all materials of any description, type or class whether excavated from, being transported to or being stored at the subject development.

Note: The definition of a road includes all that land defined within the appropriate registered plan including the footway and road carriageway areas.

Required Design Specification

74. All engineering works required by this consent must be designed and undertaken in accordance with the relevant aspects of the following documents, except as otherwise authorised by this consent:

(a) Blacktown City Council’s Works Specification – Civil (Current Version)

(b) Blacktown City Council’s Engineering Guide for Development (Current Version)

(c) Blacktown City Council Development Control Plan (Current Version)

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

Road Damage

75. The cost of repairing any damage caused to Council’s assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of an Occupation Certificate.

Note: Should the cost of damage repair work not exceed the road maintenance bond Council will automatically call up the bond to recover its costs. Should the repair costs exceed the bond amount a separate invoice will be issued.

Removal of Temporary Facilities

76. Any hoarding or similar barrier erected to protect a public place is to be removed from the site prior to the use or occupation of the development.

77. Any temporary toilet facilities provided during construction works are to be appropriately dismantled, disconnected and removed from the site.

78. All temporary soil erosion controls employed during construction are to be removed and other permanent measures in accordance with Council’s Soil Erosion Control Policy are to be implemented prior to the use or occupation of the development.

79. Any temporary site access provided for the purpose of construction works is to be removed and the kerb and gutter and/or previous roadworks reinstated in a manner satisfactory to Council. Should the reinstatement involve the provision of a new vehicular crossing, layback, kerb and gutter or road shoulder works the separate approval of Council’s Maintenance Section is to be obtained (and appropriate fees paid) prior to such works commencing.

80. All temporary builders’ signs or other site information signs are to be removed upon the completion of site works.

Additional Inspections

81. Any additional Council inspection beyond the scope of any inspection package and needed to verify full compliance with the terms of this consent, will be charged at the individual inspection rate nominated in Council’s Fees and Charges Schedule.

Payment of Fees

82. All fees payable to Council as part of any Construction or Occupation Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full.

Surveys/Certificates

83. A certificate from a Chartered Professional Engineer/Registered Surveyor must be obtained verifying that the drainage system as constructed will function hydraulically in accordance with the approved design plans.

Works-As-Executed Plans

84. A work-as-executed plan (to a standard suitable for microfilming) under the hand of a Chartered Professional Engineer or a Registered Surveyor must be lodged with Blacktown City Council when the engineering works are complete. All Engineering Works As Executed plans MUST be prepared on a copy of the original stamped Construction Certificate or approved Engineering Plans.

Other Matters

85. All landscaping, fencing, signage, parking are to be completed to Council’s satisfaction.

OPERATIONAL MATTERS (PLANNING)

Car Parking and Access

86. All required off-street car parking spaces and internal driveways shall be maintained in a satisfactory useable manner.

General

87. Spillage of light, if any, shall be controlled so as not to cause nuisance to the amenity of adjoining land.

88. Emission of sound from the premises shall be controlled at all times so as to not unreasonably impact upon nearby owners/occupiers.

89. All landscaped areas are to be maintained at all times in a suitable manner.

90. Deleted.

PART A – ENGINEERING WORKS

Roadworks

91. Redundant gutter and/or footway crossing(s) must be replaced with integral kerb and gutter. The footway area must be restored by turfing.

Drainage Works

92. Overland flows up to the 1% AEP (100 year Average Recurrence Interval) event must be intercepted at the boundary of the site and conveyed through the site in a satisfactory manner.

Vehicular Crossings

93. Construction of Council’s standard commercial and industrial vehicular footway crossing with the following nominated width at the property boundary in accordance with Council plan A(BS)103.

94. The construction of 2 of Council’s standard residential footway and layback crossings to services dwellings No. 1 and 2 with a maximum width of 2.5m each at the street alignment in accordance with Councils Plan No. A(B5)102.

Footpaths

95. The footway area being fully turfed in an appropriate manner so as to be free draining to the street and of neat appearance.

Soil Erosion and Sedimentation Control

96. Soil erosion and sediment control measures shall be implemented in accordance with Council’s Soil Erosion and Sediment Control Policy.

Drainage Works

97. Where internal driveways cannot be drained to an internal pit a grated drain shall be provided at the property boundary.

98. Drainage from the site must be connected into the existing kerb inlet pit in Meacher Street.

NOTE: Inspection of the connection to Council’s system must be made by Council’s Engineering Development Supervisor who can be contacted by phoning 9839 6587 between 7:00am and 8:00am or 12:30pm and 1:30pm. A site inspection required prior to commencement of work. Twenty-four (24) hours notice must be given.

Drainage

99. Any drainage currently entering the site is to be collected and conveyed in an approved manner to the nearest appropriate point of discharge.

Finished Levels and Working Levels

100. Finished levels of all internal works at the road boundary of the property must be 4% above the top of kerb.

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Citations

Bathla Investments Pty Limited v Blacktown City Council [2008] NSWLEC 1506

Most Recent Citation

Nara Lounge Pty Ltd v Hurstville City Council [2015] NSWLEC 1167

Cases Citing This Decision

1

Nara Lounge Pty Ltd v Hurstville City Council [2015] NSWLEC 1167

Cases Cited

4

Statutory Material Cited

1

BAKER INVESTMENTS PTY LTD and CITY OF VINCENT [2016] WASAT 115

Eaglecorp Property Consultants Pty Limited v Wollongong City Council [2008] NSWLEC 1377

CITATION:	Bathla Investments Pty Limited v Blacktown City Council [2008] NSWLEC 1506
PARTIES:	APPLICANT Bathla Investments Pty Limited RESPONDENT Blacktown City Council
FILE NUMBER(S):	10964 of 2008
CORAM:	Murrell C
KEY ISSUES:	Section 96 Modification :- Threshold question whether substantially the same development. Objections concerns - privacy, overlooking, overshadowing, 2-storey rather than single storey, merit consideration.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Thomas v Pittwater Council (2003) NSWLEC 19 Vasic v Penrith City Council Motor Projects No 2 v North Sydney Council North Sydney v Michael Stanley (1998) 43 NSWLR 468 Eaglecorp Property Consultants Pty Limited v Wollongong City Council [2008] NSWLEC 1377 Tyagrah Holdings Pty Limited v Byron Bay Shire Council (2008) NSWLEC 1420
DATES OF HEARING:	09/12/2008
EX TEMPORE JUDGMENT DATE:	9 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G. Castellan, solicitor of Ritchie & Castellan RESPONDENT Mr T. O'Connor, solicitor of Houston Dearn O'Connor