Beatty v Campbelltown City Council - [2004] NSWLEC 628

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Beatty v Campbelltown City Council [2004] NSWLEC 628

PARTIES:
APPLICANT
Anthony Beatty
RESPONDENT
Campbelltown City Council

FILE NUMBER(S): 10123 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Should the Draft Control Plan take precedence over the current control plan - site area - boundary setbacks - density - bulk and scale - internal amenity - privacy of neighbours - view preservation for neighbours - proposed trees would create leaf drop problem for neighbours pool - lack of information on plans for final levels of excavation and courtyards.

LEGISLATION CITED: Campbelltown (Urban Area) Local Environmental Plan 2002
Draft Campbelltown (Sustainable City) Development Control Plan
Campbelltown Development Control Plan No. 79

CASES CITED:

DATES OF HEARING: 08/06/2004

EX TEMPORE
JUDGMENT DATE : 06/08/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Seton, solicitor
SOLICITORS
Marsdens
RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

8 June 2004

10123 of 2004 Anthony Beatty v Campbelltown City Council
JUDGMENT

1 This was a class one appeal No. 10123 of 2004 between Anthony Beatty and Campbelltown City Council in regard to the refusal of an application for six townhouses on Nos. 2 and 4 Lachlan Place, Campbelltown.

2 The original development application was for seven townhouses some 16 months ago. The applicant had worked with council and the objectors to:

remove one unit and
to reduce units 2 and 3 to two bedrooms from three bedrooms
thus they were separated by single storey attached garages instead of having a full second storey and third bedroom over the garages.
also units 2 and 3 were lowered in height.

3 The final scheme before the Court was in the Exhibit A drawings.

4 The issues were:

Particulars :

Draft Campbelltown (Sustainable City) Development Control Plan

Particulars

(a) A rear setback of 1.1 metres is provided. The appropriate rear setback would be 5 metres in accordance with the Multi Dwelling Housing Specific Performance Criteria set out in Part 3 of the Draft Development Control Plan .

Draft Development Control Plan

3. The proposed development is unacceptable in that the bulk scale and height of proposed units 2 and 3 is out of character with the surrounding residential development.

Particulars

(a) The distance between proposed units 5 and 6 does not provide for sufficient visual and acoustic privacy for future residents of these units.

5. The proposed development will have an unreasonable impact on the streetscape.

Particulars :

5 The respondent’s evidence was heard on site from Mr P Willis, objector and resident of 6 Austin Avenue, a detached dwelling east of the proposal.

6 Various council reports and documents were tendered, including three other objections of adjoining and nearby residents and one objector concerned about the impact of a medium density development in the area and of this proposal.

7 The applicant’s evidence was heard from the various documents tendered. A Court-appointed architect and town planner, Mr S Layman, had prepared a report that both parties made submissions about. It was Exhibit B.

8 The proposal was permissible with consent in the Residential 2(b) Zone under the Campbelltown (Urban Area) Local Environmental Plan 2002.

9 The main basis for the council’s opposition to the proposal were the requirements of a Draft Development Control Plan referred to in the Issues that had been exhibited by the council in December 2003 but had not yet been adopted. It would set the minimum site area on a per unit basis and require 1900 m sq for this development application and the site was 1753 m sq.

10. The evidence was that under the current applicable controls the minimum site area requirement was currently well in excess of that required for the six units and, if the draft development control plan requirement was applied, there would be a non-compliance of only 7%. Mr Layman thought that this was a minor non-compliance in numeric terms.

11 It meant however under the council’s evidence that five units versus six on the site was appropriate. This would have certain benefits of reducing density further and perhaps the extent of buildings on the site and perhaps allowing Mr Willis less reduction of his minor view across part of the subject site.

12 The applicant submitted, and the Court agrees, that the Draft Development Control Plan cannot be given significant weight purely on its status in statutory terms and, when considering the merits of the development application as contained in the evidence, this conclusion is further supported.

13 Under the Campbelltown Local Environmental Plan 1992 the land is zoned Residential 2B and townhouse developments are permissible and are expected in this area which is currently predominantly detached dwellings. Therefore it is a reasonable conclusion that townhouse development of some form is expected to change the character of the locality to a certain extent in the future.

14 The only objective of the LEP that the Court was taken to was cl 2(2)(b) that sought to protect areas from inappropriate development. If a satisfactory assessment of the merits occurred in regard to this application, this objective would not be contradicted.

15 The applicable control was Development Control Plan 79 and in regard to it the proposal complied comfortably. It had a floor space ratio of 0.29:1 when the maximum permitted was 0.4:1. The landscaped area was 200 m sq more than required. All of the private open space courtyards exceeded the minimum requirement, some by double the area. Solar access requirements were complied with on site. Shadows on neighbours were minimal and complied comfortably with the requirements laid down. Car parking on site was in excess of the normal requirement as indicated by Development Control Plan 79.

16 In cul-de-sacs it did state that additional car parking might be needed in the cul-de-sac, however, both the existing development control plan and the draft development control plan did not state how many additional car parks should be allowed. The proposal provided five on site visitor spaces when four were required, plus a single garage for each dwelling making a total of 11 car spaces.

17 Mr Layman and, for that matter, the council officers’ reports recommended approval of the proposal, and concluded that the streetscape appearance and density of the proposal was satisfactory.

18 The privacy concerns of Mr Willis were resolved by obscured glass windows on stairwells of units 2 and 3. When seen from Mr Willis’ home uphill of the proposal, a height pole, erected to show the height of the development, in particular locations, showed that his main view past units 3 and 4 would be unaffected. Units 3 and 4 would be silhouetted against a large tree on 19 Farnsworth Avenue that already blocked the view in that direction. A lowering of units 2 and 3 and the gap between them over the garages would allow partial and reasonable retention of Mr Willis’ lesser view. Also the large trees proposed in the landscaping plan were to be modified to avoid leaf and bark shedding problems for his swimming pool.

19 Another concern was the non-compliance with the boundary setback provisions but in each case this was shown to be at a point location only. Individual buildings were set at an angle to the site boundaries of this irregular shaped allotment. At those points there were either no windows or the windows concerned would be obscured glass, therefore it did not produce any privacy problems for the neighbours.

20 In most cases the points at which the intrusion into the side setback occurred was on a single storey section of the buildings, the second storey being set back further than the ground floor. This meant that the bulk of the buildings in proximity to the boundaries was lessened. It was also notable that the site was on a gradual slope and the setback intrusions were along what might be termed the rear setback of this irregular shaped allotment. Since the lot sloped upwards to the rear, the locations in which the buildings were closer than recommended to the site boundary, produced less bulk. The buildings were lower than they might otherwise have been in relationship to the level at the boundary and the neighbours who were elevated on their land further uphill.

21 Also Development Control Plan 79 provided exceptional clauses in such circumstances which would allow less than the normal setback. In this case, the council officers and Mr Layman recommended that the exceptional clauses could be activated without concern for adverse impacts.

22 The objections of the other persons, whose written objections were in evidence, could not be given significant weight as they had been suitably resolved by the amendments to the plans and the proposed conditions.

23 The Court became concerned that the details of retaining walls, paved areas in courtyards and final levels in the excavated and landscaped areas were not properly co-ordinated between the architectural and landscape plans and more detail was needed. The parties agreed this could be dealt with by deferred commencement conditions to require these details to be approved by council officers.

24 Overall the Court has come to the conclusion that there was nothing sufficient for refusal of the proposal, subject to appropriate conditions being imposed.

25 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred Development Consent is granted for 6x2 storey town houses at Nos 2-4 Lachlan Place, Campbelltown, as shown in drawings in Exhibit A of this appeal, all as annotated and as further amended by, and to be built in accordance with the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits 4, 6, A and C.

K G Hoffman

Commissioner of the Court

Annexure A

Conditions of Deferred Commencement Consent

Anthony Beatty v Campbelltown City Council

Development Application F140/2003 for 6 townhouses at

2-4 Lachlan Place, Campbelltown

Deferred commencement condition

Development Consent shall be deferred pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 until the Applicant submits a detailed landscape plan to the Council and Council has provided its agreement to it.

Amongst other conditions that may affect the landscape plan see Condition 7 herein.

Upon Council confirming that it is satisfied with the landscaping plan the consent shall become operative subject to compliance with the Conditions that follow.

INSPECTIONS - BUILDING WORK

The following conditions have been applied to ensure that the development is inspected at each stage of construction.

The following stages of construction shall be inspected by an Accredited Person, Council or other suitably qualified person (as applicable), and documentary evidence of compliance with the relevant terms of the approval/standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction:

1. INSPECTION – BUILDING WORKS:

SITE FENCING - The installation of a safety fence around the perimeter of the work area, prior to work commencing.

FRAMEWORK - The framework including wind bracing and roof members when completed and prior to fixing of any internal linings.

WET AREA - The wet area damp-proofing and flashing before covering.
RAINWATER DRAINS - The rainwater drainage lines within the property boundaries when completed and before covering.

FINAL - The development is completed and before occupation or use is commenced.
NOTE: If Council has been nominated as the Principal Certifying Authority, all inspections required by this consent shall be carried out by Council, unless otherwise arranged. Work must not proceed until approval for each inspection has been obtained. Council is required to carry out the final inspection of the development to allow the issue of the Occupation Certificate.
It should be further noted that when final clearance is given by the Planning and Development Department for building work, a final clearance may also be required from the City Engineer's Road Restoration Overseer in regard to the condition of the kerb/gutter and footpath openings.

INSPECTION - CIVIL WORKS

The following conditions have been applied to ensure that the development is constructed in accordance with the development approval.

The following stages of construction shall be inspected by an Accredited Person, Council or other suitably qualified person (as applicable). A Compliance Certificate or other documentary evidence of compliance with the relevant terms of the approval/standards is to be obtained prior to proceeding to the subsequent stages of construction:

2. INSPECTION – CIVIL WORKS

VEHICLE CROSSINGS AND LAYBACKS - Prior to pouring concrete.
FINAL INSPECTION - All outstanding works.

THE SITE

The following conditions have been applied to ensure that the land and/or building will be developed so as to minimise impact on the amenity of the neighbourhood and environment.

3. PRESCRIBED CONDITIONS - For the purposes of section 80A(11) of the Act, the following conditions are prescribed in relation to this development:-

a) that the work (other than work relating to the erection of a temporary building) must be carried out in accordance with the provisions of the Building Code of Australia (as in force on the date the application for the relevant construction certificate was made).
b) in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force.

This condition does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4).

4. ROAD RESERVE - An inspection of any excavation within the road reserve is required to be carried out by Council to ensure proper restoration of the agricultural drainage line at the kerb in accordance with the attached schedule. (To ensure adequate protection of Council assets)

5. PUBLIC PROPERTY - The applicant or the applicant's agent shall advise Council of any damage to property controlled by Council which adjoins the site including kerbs, gutters, footpaths, walkways, reserves and the like, prior to commencement of any work on the site. Failure to identify existing damage will result in all damage detected after completion of the building work being repaired at the applicant's expense.

6. PLANT EQUIPMENT - Plant equipment or materials of any kind shall not be placed or stored upon the public footpath or roadway, which is open for use by pedestrians. (Local Government Act)

THE DEVELOPMENT

The following condition/s have been applied to ensure that the land and/or building will be developed so as to minimise impact on the local environment and to achieve the objectives of the relevant planning instruments.

7. APPROVED PLANS & DOCUMENTATION - The development shall be carried out in accordance with the following plans drawn by Techniplan, except where varied by the following conditions of consent

a) Drawing No AO615 Sheet 1 of 9 (Amemded 17/5/04)
b) Drawing No AO615 Sheet 2 of 9 (Amemded 15/5/04)
c) Drawing No AO615 Sheet 3 of 9 (Amemded 15/5/04)
d) Drawing No AO615 Sheet 4 of 9 (Amemded 17/5/04)
e) Drawing No AO615 Sheet 5 of 9 (Amemded 15/5/04)
f) Drawing No AO615 Sheet 6A of 9 (Amemded 15/5/04)
g) Drawing No AO615 Sheet 6B of 9 (dated 9/5/02)
h) Deleted.
i) Drawing No AO615 Sheet 8 of 9 (dated 19/12/02)

7A The 1.8m high brick fence which is proposed to extend from the front of Unit 5 to the northern boundary shall be reduced in height to 1.5m.

7B The window in the stairwells of units 2 and 3 shall be of fixed obscure glass.

7C The proposed Eucalyptus Nicholli shown on the Landscape Plan in the rear yard of Unit 4 shall be replaced with a species that will grow to no more than 6 metres at maturity and that will not impact on the pool of the adjoining property in terms of leaf litter or bark shredding. The similar tree in the rear yard of Unit 3 is to be relocated to the west so that it is between the buildings of Units 3 and 4 and will not block views in the future from the back verandah of Lot 452 Austin Avenue.

8. COMPLIANCE CERTIFICATE - A compliance certificate shall be issued certifying that the development has complied with all the conditions of development consent prior to the use or occupation. (To ensure all conditions of consent have been complied with)

9. COMPLIANCE CERTIFICATES - Compliance Certificates (or reports from a Company or individual professionally experienced and qualified to give that evidence and containing documented authoritative evidence of compliance with the specifications, drawings, and development conditions) shall be obtained for the following prior to issue of the Occupation Certificate:

a) Service Authority Clearance - prior to vehicle crossing construction.
b) Road Restoration Clearance - from Council.

c) Conditions of Development Consent.

Two collated copies of any related plans, documents, reports, forms or other evidence shall accompany the above documents.

10. TREES - No trees are to be cut down, lopped, destroyed or removed without the written approval of consent authority. In this regard the applicant shall liaise with Council’s Manager Development Services to arrange a joint site inspection prior to commencing site works. (Tree Preservation provisions of Council’s Planning Instruments.

11. DESIGN AND INVESTIGATION BY COUNCIL - Where Council design and/or investigation is required for any works necessitated by the development, costs shall be met by the developer (Applied to ensure that the land or building will be developed in a way which will minimise impact on the local environment and achieve the objectives of the relevant Planning Instruments).

12. FOOTPATH AND VEHICULAR CROSSING LEVELS - Footpath and vehicular crossing levels are to be obtained from Council prior to the commencement of work. In this regard, an application should be lodged with Council on the prescribed form. (Applied to ensure that the land and or building will be developed in a way which will minimise impact on the local environment and achieve the objectives of the relevant Planning Instruments)

13. POLLUTION WARNING SIGN - Council's sign issued with the Development Consent, promoting the protection of our waterways must be displayed on the most prominent point of the building site that is visible to both the street and site workers. The sign must be erected on site prior to work commencing and maintained for the duration of work on the site. NOTE: The sign will be provided by Council free of charge, however, if lost or destroyed, it must be replaced at the cost of the applicant. (To ensure compliance with Campbelltown DCP No. 112 – Erosion and Sediment Control.)

14. CIVIL WORKS - A final engineering inspection and clearance is required for all civil works associated with the development prior to release of the Occupation Certificate. (Applied to ensure that the land and/or building will be developed in a way which will minimise impact on the local environment and achieve the objectives of the relevant Planning Instruments)

15. POLLUTION WARNING SIGN - Council's sign issued with the Development Consent, promoting the protection of our waterways, must be displayed on the most prominent point of the building site that is visible to both the street and the site workers. The sign must be erected on site prior to work commencing and maintained for the duration of work on the site. NOTE: The sign will be provided by Council free of charge, however if lost or destroyed, it must be replaced at the cost of the applicant. (To ensure compliance with Campbelltown DCP No.112 - Erosion and Sediment Control)

16. EROSION AND SEDIMENT CONTROL PLAN - An Erosion and Sediment Control Plan showing how erosion is to be minimised and sediment trapped for the purpose of minimising water pollution shall be submitted to and approved by the Principal Certifying Authority prior to initiating any activity that has the potential to disrupt the soil surface. (To ensure compliance with Campbelltown DCP No.112 - Erosion and Sediment Control)

17. WORK ON PUBLIC LAND - No work shall be undertaken within 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 inspections, approval and restoration of such work shall be undertaken at the applicant's expense unless otherwise approved in writing. (Applied to ensure that the land and or building will be developed in a way which will minimise impact on the local environment and achieve the objectives of the relevant Planning Instruments)

18. PUBLIC SAFETY - Any works undertaken in a public place are to be maintained in a safe condition at all times. In this regard, the applicant shall ensure that a safe fully signposted passage minimum 1.2 metres wide, separated from the works and moving vehicles by suitable barriers and lights, is maintained for pedestrians at all times and that traffic control is undertaken and maintained strictly in accordance with AS 1742.3 (1996), the requirements set out in the RTA manual “Traffic Control at Work Sites” 1998, all applicable Traffic Management and Control Plans and that any Work Cover Authority requirements are met. 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. (Applied to ensure that the land and/or building will be developed in a way which will minimise impact on the local environment and achieve the objectives of the relevant Planning Instruments.)

19. CONSOLIDATION OF LOTS - Lots 426 and 427 DP 27395 shall be consolidated into one holding. The plan of Consolidation is to be registered as a deposited plan prior to the release of the Occupation Certificate. (Environmental Planning and Assessment Act)

20. OCCUPATION CERTIFICATE - The building/s shall not be used or occupied BEFORE the Principal Certifying Authority has issued an Occupation Certificate. (Environmental Planning and Assessment Act)

21. Deleted.

22. LANDSCAPING BOND – Prior to the Principal Certifying Authority issuing a construction certificate, a cash bond or bank guarantee for the sum of $4200.00 is to be lodged with Campbelltown Council to ensure the effective establishment and maintenance of landscaping on site.

Twelve months after the issue of the final occupation certificate, and the satisfactory completion and maintenance of landscaping, the applicant is responsible for applying to Council for the return of the bond or guarantee.

Should no request be made to Council for the return of the bond or guarantee six years after the issue of the final occupation certificate, the applicant is advised that Council will surrender the bond or guarantee to the Office of State Revenue.

23. EXTERNAL FINISHES - A list and sample of external finishes is to be submitted to Council prior to approval of the Construction Certificate. All metal surfaces including the roof shall be of a colorbond finish. All surfaces shall be constructed with split-face brickwork, textured or ribbed concrete blocks or concrete pre-cast panels. All plain concrete surfaces shall be painted.

CONSTRUCTION

The following condition/s have been applied to ensure that the development complies with all technical requirements.

24. RETAINING - Before occupation all excavated and filled areas shall be battered to a slope of not greater than 45 degrees to the horizontal or similarly be retained in accordance with the approved retaining wall. (Environmental Planning and Assessment Act)

25. ENERGY SMART HOMES REQUIREMENTS - All energy efficiency requirements outlined by the plans, specifications and energy efficient scorecard or NatHERS report submitted with this application shall be installed and completed prior to final inspection.

26. COMPLIANCE CERTIFICATE (ENERGY REQUIREMENTS) - A compliance certificate or appropriate documentation from a suitably qualified installer shall be submitted to Council prior to the final inspection of the dwelling, certifying the installation of all measures relevant to the subject development, to ensure compliance with the energy rating requirement, which may include the following:

a) ceiling and/or roof insulation of the required R-value;
b) wall insulation of the required R-value;
c) floor insulation of the required R-value;
d) a hot water system with a greenhouse score of 3.5 stars or greater; and
e) any other requirements of the energy efficient scorecard or NatHERS report, i.e. glazing, floor coverings, landscaping, shading.

Note: Insulation of the required R-value must be installed in accordance with Australian Standard (AS) 3999 - 1993 for Bulk Insulation or Australian Standard (AS) 4200.2 - 1994 for Pliable Building Membranes.

27. DETAILS TO BE SUBMITTED WITH THE CONSTRUCTION CERTIFICATE - The following details of compliance with the provisions of the Building Code of Australia and relevant standards of construction are to be submitted with an application for a Construction Certificate.

a) Method of termite protection.
b) Four copies of building specifications
c) Details of sanitary compartments complying with Part 3.8.3.3 of the Building Code of Australia housing provisions
d) Details of the method of ventilating the ground floor sanitary compartment of Unit 3 in accordance with part 3.8.5.3 of the Building Code of Australia housing provisions.
e) The method proposed to achieve a sound transmission rating of Rw50 between Units 2 and 3.
f) A detailed workplan for the demolition in accordance with AS2601-1991.

28. CONSTRUCTION CERTIFICATE - This development consent relates to the demolition of two dwellings and erection of six townhouses. In this regard construction work shall not commence until a Construction Certificate has been issued.

29. STRUCTURAL ENGINEERING DETAILS - No building work shall commence until details prepared by a practising structural engineer have been submitted to and approved by Council or an Accredited Person for concrete piers, floor slabs and structural steelwork (To ensure the structural adequacy of the building and compliance with the Building Code of Australia).

ROAD CONSTRUCTION

The following condition/s have been applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.

30. COMPLIANCE WITH COUNCIL SPECIFICATIONS - All design and construction work, lots and roads created shall be in accordance with Council's current standards and requirements as follows:

a) Guidelines of Engineering Conditions to be applied to Development and Building Applications (as amended)
b) Stormwater Management Policy (as amended)
c) Residential Development Policy - DCP No. 79
d) Managing Urban Stormwater - Soils & Construction', Department of Housing 1998 manual

e) All relevant Australian and State standards and publications.

31. FOOTPATH - The footpath area adjacent to the concrete paving and adjoining the subject land shall be regraded, topsoiled and turfed in accordance with levels to be obtained from Council. Footpath formation shall be carried beyond the boundary to provide an acceptable transition to existing footpath levels. (Applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.)

32. DRIVEWAY AND LAYBACK CROSSING - The battle axe lot shall be provided with a reinforced concrete driveway footpath crossing and layback to Council's Vehicle Crossing Specification. A separate application for this work, which will be subject to a crossing inspection fee, fixing of levels and inspections by Council, must be lodged with Council. Conduits must be provided to Service Authority requirements. (Applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.)

33. RESTORATION OF PUBLIC ROADS - Restoration of public road and associated works required as a result of the development shall be carried out by Council and all costs shall be paid by the applicant to Council prior to release of the Occupation Certificate. (Applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.)

34. PUBLIC UTILITIES - Adjustments to public utilities caused by the development shall be completed prior to occupation and all costs shall be paid by the applicant. (Applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.)

35. REDUNDANT LAYBACKS - All redundant layback/s shall be reinstated to conventional kerb and gutter to Council's Specification for Construction of Subdivisional Road and Drainage Works (as amended). (Applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic in accordance with Council's adopted Development Control Plans.)

STORMWATER DRAINAGE AND FLOOD MANAGEMENT

The following condition/s have been applied to ensure that stormwater drainage collected on and/or passing through the site is conveyed through a controlled system to prevent nuisance and damage to the subject land and adjacent lands and to minimise flood impact.

36. STORMWATER DETAILS - A plan indicating all engineering details and calculations relevant to site regrading and the collection and disposal of stormwater from the site, building/s and adjacent catchment, shall be submitted for approval with the Construction Certificate application. Floor levels of all buildings shall be above finished site levels and stormwater shall be conveyed from the site to the nearest drainage system under Council’s control. All proposals shall comply with Council's Stormwater Management Policy. (Applied to ensure that stormwater drainage collected on or passing through the site is conveyed through a controlled system to prevent damage and nuisance to the subject land and adjacent lands and minimise flood impact.)

SERVICES

The following condition/s have been applied to ensure that adequate utility installations are provided to the site to service the development and to satisfy the requirements of the relevant planning instrument.

37. INTEGRAL ENERGY CLEARANCE - The developer shall submit to Council a letter from Integral Energy stating that all its requirements and any conditions of this consent have been satisfied prior to release of the Subdivision Certificate. Application shall be made to 'Contestable Works, Network Projects, Integral Energy, PO Box 6366, Blacktown 2148'.

38. SYDNEY WATER CLEARANCE - The developer must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994 from Sydney Water stating that satisfactory arrangements have been made with Sydney Water for the amplification and/or reticulation of water and sewerage services to the land. To obtain the Section 73 Certificate, Sydney Water may require you to construct works and/or pay developer charges. Application must be made through an authorised Water Servicing Coordinator, for details see the Sydney Water web site or telephone 132 092.

39. TELSTRA - The applicant is advised to contact Telstra to satisfy its requirements in relation to services to the proposed development, particularly the provision of conduit and cabling for telecommunications services.

LAND USE

The following condition/s have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the Environmental Planning Instrument and Development Control Plans affecting the land and that the development is conducted so as not to be prejudicial to the amenity of the local environment.

40. LANDSCAPED AREA - The landscaped area shall be maintained in accordance with the approved landscape plans. (Environmental Planning and Assessment Act)

41. NEIGHBOURHOOD AMENITY - The development is to be conducted in a manner which does not interfere with the amenity of the neighbourhood. (Environmental Planning and Assessment Act)

42. CAR PARKING SPACES - Off-street car parking spaces and access driveways shall be made available at all times and maintained in accordance with the approved car parking plans. (Environmental Planning and Assessment Act)

PEST CONTROL

The following condition/s have been applied to ensure that the development is suitably protected from pests in accordance with AS3660.1.

43. TERMITE CONTROL - The building shall be protected for subterranean termites in accordance with AS3660.1 and Council's Termite Management Policy. (Building Code of Australia)

44. CERTIFICATION - Certification from a licensed pest controller shall be submitted to the consent authority certifying that the termite protection system installed in the building complies with AS3660.1 and Council's Termite Management Policy.

DEMOLITION

The following conditions have been applied to ensure that demolition works are carried out in accordance with the Australian Standard AS2601-1991 - The Demolition of Structures, the Waste Minimisation & Management Act 1995, Protection Of The Environment Operations Act 1997 and Development Control Plan No. 95 - Controls for Waste Management.

45. DUST CONTROLS - Dust controls shall be implemented on site prior to and during demolition. (Clean Air Act)

46. FENCING - Prior to work commencing, the work area shall be fenced to prevent access by unauthorised persons.

47. ASBESTOS - Should any asbestos be identified in the building, it shall be removed and disposed of in accordance with the requirements of WorkCover.

48. COVERED LOADS - All trucks/trailers entering or leaving the site shall have their loads adequately covered. A sign indicating this shall be placed at the entry to and exit from the site.

49. TOILET FACILITIES - Temporary toilet facilities shall be provided on the site until all demolition work is completed.

50. HOURS OF OPERATION - Demolition work on site shall occur between the following hours:

51. SOUND PRESSURE LEVELS - Sound pressure levels measured as LA10 15 minuted emanating from the site must not exceed the background levels at the nearest affected residence by the following criteria for the time interval specified:

52. DEMOLITION - All demolition work shall comply with the Australian Standard (AS) 2601-1991 - The Demolition of Structures.

53. DUST PREVENTION - Demolition is not to be conducted in high winds to ensure dust does not spread beyond the site boundaries.

54. LEAD REMOVAL - Should any lead contaminated materials be identified in the building, it shall be handled and disposed of in accordance with the NSW Environment Protection Authority's requirements.

a POLLUTION CONTROL - WASTE MANAGEMENT

The following conditions have been applied to facilitate a reduction in waste going to landfill in accordance with the Waste Minimisation and Management Act, 1995.

55. IMPLEMENTATION OF WASTE MANAGEMENT PLAN - The approved Waste Management Plan for construction shall be implemented and maintained during development. (To ensure implementation of the Waste Management Plan.)

______________________

K G Hoffman

Commissioner of the Court

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Beatty v Campbelltown City Council [2004] NSWLEC 628

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CITATION:	Beatty v Campbelltown City Council [2004] NSWLEC 628
PARTIES:	APPLICANT Anthony Beatty RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10123 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Should the Draft Control Plan take precedence over the current control plan - site area - boundary setbacks - density - bulk and scale - internal amenity - privacy of neighbours - view preservation for neighbours - proposed trees would create leaf drop problem for neighbours pool - lack of information on plans for final levels of excavation and courtyards.
LEGISLATION CITED:	Campbelltown (Urban Area) Local Environmental Plan 2002 Draft Campbelltown (Sustainable City) Development Control Plan Campbelltown Development Control Plan No. 79
CASES CITED:
DATES OF HEARING:	08/06/2004
EX TEMPORE JUDGMENT DATE :	06/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Seton, solicitor SOLICITORS Marsdens RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout