Billgergia Pty Ltd v Willoughby City Council - [2000] NSWLEC 94

Land and Environment Court

of New South Wales

CITATION: Billgergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94

PARTIES: APPLICANT:
Billbergia Pty Ltd (ACN 008 645 136)
RESPONDENT
Willoughby City Council

FILE NUMBER(S): 10869 of 1999

CORAM: Sheahan J

KEY ISSUES: Development Application :- Class 1 appeal - multi-unit residential - SEPP 1 objections - bulk and scale - FSR - height - carparking - impacts on Bushland - s 94 contributiions - conditions of consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No.1
Willoughby Local Environmental Plan 1995

CASES CITED: Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435 ;
King and Campbell Pty Ltd v Hastings Shire Council [2000] NSWLEC 11;
Lavender View Regency Pty Ltd v North Sydney Council (No.3) (1997) 95 LGERA 420;
Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192;
Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65

DATES OF HEARING: 15/02/00-18/02/00, 2/03/00

DATE OF JUDGMENT:
05/12/2000

LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Webster (Barrister)
SOLICITORS
Le Compte Davey
RESPONDENT:
Mr A Galasso (Barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No.10869 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 12 May 2000

BILLBERGIA PTY LTD

Applicant

WILLOUGHBY CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an expedited appeal against a deemed refusal by Willoughby City Council of a development application to construct multi-unit residential buildings at 710 Mowbray Road, Lane Cove.

2. This proposal is Stage 3 of an approved development, and occupies 15,831m2 of a 3.674 ha site.

3. The masterplan approved for the entire development comprises a mixture of 98 two and three storey townhouses and 103 units within 5 four and five storey residential flat buildings with a total of 201 dwellings and associated facilities ( Exhibit W3 , p235).

4. Stages 1 and 2 are under construction.

5. Stage 3 involves construction of 100 dwellings, within 2 residential flat buildings (14A and 14B) and 7 townhouse buildings (13A, 13B, 15A, 15B, 16, 17 and 18), and associated car parking facilities.

6. In essence, the applicant has moved from the original masterplan and seeks approval to increase certain building heights within Stage 3, increase the number of bedrooms proposed, increase the overall floorspace ratio for the site and increase the amount of excavation proposed for erection of the buildings. Such a proposal results in an increase in the bulk and scale of the development. The specific changes include the height of building 14B to be increased by one storey (to RL 57.541), additional floorspace to be provided within 36 townhouses, and greater infringement of the bushland to be retained.

7. The applicant’s appeal is opposed by Council for reasons identified in the filed statement of issues ( Exhibit W8 ) but there are clearly three major issues:

8. The applicant has made State Environmental Planning Policy No. 1 (“ SEPP 1 ”) objections in relation to floor space ratio and height, on the basis that the development standards should not be applied, since their application would be ‘ unreasonable or unnecessary’, given the characteristics of the development.

9. In the Court’s consideration of such objections, the test adopted is whether a development, although not complying with the relevant standard, ‘ nevertheless satisfies the underlying purpose of such standard’ (see Lavender View Regency Pty Ltd v North Sydney Council (No. 3) (1997) 95 LGERA 420 at 423, 425, 426; Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202). As Cripps J stated in Legal & General Life Australia Ltd v North Sydney Municipal Council at 201, SEPP 1 is not to be used ‘ as a means to effect “general planning changes” throughout the municipality’ .

10. The Council contends that the applicant must persuade the Court that, notwithstanding the constraints imposed by the DCP, the exceedence of floor space and height are acceptable, as are their impact on the bushland areas and amenity considerations.

11. As Talbot J stated in Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65 (at par 35):

it is axiomatic that the Court is required to have regard to environmental and amenity impacts arising from the provision of additional floor space, irrespective of the DCP provisions. Indeed the obligation extends to all aspects of the development, notwithstanding the specific controls found in the DCP .

12. I record that I had the benefit of a site inspection.

13. I have concluded that, despite these changes to the original proposal, the development application should be approved, and the SEPP 1 objections upheld, on the grounds that the proposed development is reasonable in terms of its height, bulk, scale, and floor space ratio, and constitutes a reasonable use of the development site. Its impact on the scenic qualities of the locality is acceptable.

The site and its surrounds

14. No 710 Mowbray Road (“ the site ”), which is lot 1 in DP 864492, is located at the intersection of Mowbray Road West and Epping Road. It was formerly occupied by a major depot of the NSW Roads and Traffic Authority (“ RTA ”).

15. Located to the north of the site is the Chatswood War Memorial Athletics Field and Lane Cove River. To the west is the Starch Australasia industrial site, located on the western side of Epping Road. Adjoining to the south, is the Sydney Water property and the NUSS Removals building, accessed via Old Mowbray Road. The NUSS building, with a height of RL 56.97 and a building width of 30 metres, is a large, plain, bulky building, which dominates the skyline in this area ( Exhibit W9 ).

16. The impression of the site from the surrounding street system is characterised by its bushland setting. Views into the site are restricted by boundary topography and vegetation concealing the already considerable development ( Exhibit W2, p8). The combination of topography and road layout has resulted in a self-contained site, well separated from adjacent land uses ( Exhibit W2 , p13), with three distinct benched terraces excavated into the hillside, separated by landscaped batters acting to screen views of the site from the west and north-west. The retention of this significant vegetation has ensured that the site could be developed for a range of uses ,with little significant impact on adjoining uses in terms of view, loss of privacy, overshadowing, and other amenity related issues.

Relevant planning instruments and other documents

Willoughby LEP 1995 - Zoning Provisions

17. The Willoughby Local Environmental Plan 1995 (“ WLEP ”, Exhibit W5 ) contains various general provisions and a series of special provisions related to the subject site (Locality “ K ”, Mowbray Road West, Lane Cove West). The site is zoned 2 (c) “ Residential “C” Zone ”. In that zone, the objectives are as follows:

(a) To accommodate a variety of medium density housing, including such types as walk-up flats and townhouses, which are compatible with the scale and character of the surrounding residential area; and
(b) To enable the provision of appropriate communal recreation facilities for use by residents.

18. The proposed land use falls within the definition of “ Residential flat building ”, which means: “ a building containing two or more dwellings whether attached or detached and includes buildings commonly known as town houses and villa houses”.

19. The present zoning provisions were adopted following an amendment to the WLEP made on 2 April, 1997. The RTA no longer required the site for its public purpose, and, as a result, an application for the rezoning of the site was made in April 1996. Prior to this amendment, the site had been zoned as 5 (a) - Special Uses “ A ” ( Exhibit W2 , p20).

20. Under cl 6 of SEPP 32 - Urban Consolidation (Redevelopment of Urban Land) , the site was rezoned residential 2 (c) for the following reasons, as given in the rezoning report ( Exhibit W2, p24):

- infill residential development of surplus sites is consistent with State Government and Council policies on urban consolidation as reflected in SEPP No 32 and Council’s Housing Strategy;
- it is considered desirable to minimise heavy vehicle traffic generating activities in view of the grade of Mowbray Road from Epping Road and in view of adjacent residential development;
- a residential zoning would give an acceptable return to the RTA and thus the public.
- residential development could occur on the site in a manner that minimises adverse environmental impact on adjoining uses;
- residential development is compatible with the nature of surrounding development;

Council’s Housing Strategy

21. The Willoughby Housing Strategy ( Exhibit W2 , p21) has a number of goals, which include:

- to encourage the provision of a variety of dwelling types and residential environments in response to the lower occupancy rates and growing number of smaller households
- to identify areas where additional multi-unit housing might be appropriate having regard to the nature of the existing built environment, proximity to public transport and other services.

Development Control Plan No. 15

22. The “ Development Control Plan for Multi-Unit Residential Developments for 2(b), 2(c) and 2(d) zones ” (“ the DCP ”, Exhibit W6 ) was amended, by addition, on 12 March 1997, of locality “ K ”. The DCP is designed to “ provide more detailed planning controls and guidelines for multi-unit developments in the Willoughby Local Government Area and to complement the basic objectives and standards of..” WLEP. In particular, the DCP adopted special provisions for the site, including the identification of the areas of bushland to be retained, the areas suitable for residential development, and the vehicular access requirements.

23. SEPP No. 19 - Bushland in Urban Areas (Exhibit W2, p19 ) seeks to protect and preserve bushland within urban areas. Clause 10 relevantly provides that:

When preparing draft local environmental plans for any land to which this policy applies, other than rural land, the Council shall:
(a) have regard to the general and specific aims of the Policy; and
(b) give priority to retaining bushland, unless it is satisfied that significant environmental, economic or social benefits will arise which outweigh the value of the bushland.

Council’s Refusal

24. Council refused to give its consent to Stage 3 for the following reasons ( Exhibit W10 ):

(1) The proposed floor space ratio of 0.83:1 does not comply with the objectives of the 0.7:1 ratio under WLEP 1995 and will result in an unacceptable bulk, scale and intensity of development.
(2) The proposed 5 storey height of Building No. 14B does not comply with the 4 storey height control under WLEP 1995 and will adversely impact on the scenic qualities of the adjoining locality.
(3) The proposed heights of townhouse buildings 13A, 16 & 17 does not comply with the performance criteria under DCP 15 to reflect the height of the tree canopy cover and to maintain the scenic qualities of the locality.
(4) The proposed building heights do not meet the objectives of the 3 and 4 storey height controls identified by the BBC Consulting rezoning report and the specified RL heights for survey points 1 - 6 identified under the associated Viewpoint and Survey Point Study.
(5) The proposed location of building No’s. 13B, 14A, 17 and associated vehicular access points encroach within the bushland to be retained areas identified under DCP 15. This results in a non-compliance with the objectives of limiting development to the cleared parts of the site and protecting the bushland and maintaining its integrity as a screening device for development from Epping and Mowbray Roads.
(6) The proposed development makes inadequate provision for resident and visitor car parking.

Witnesses in this Appeal

25. Evidence on behalf of the council was presented by:

a) Mr N Ingham, Consultant Town Planner

b) Mr E V Stubis, Arborist & Horticulturist Consultant

c) Mr A Palagedara, Council’s s. 94 planner

d) Mr R Campbell, Resident, 741 Mowbray Road

e) Mr B S Shaw, Resident, 753 Mowbray Road

f) Mr P Movesesian, Resident, 745 Mowbray Road

26. For the applicant, evidence was presented by:

a) Mr B T Goldsmith, Consultant Town Planner

b) Mr J de Manincor, Design Architect

c) Mr E Wegman, Architectural Illustrator

d) Mr D B Draper, Tree and Bushland Management Consultant

e) Dr R Lamb, Environmental Consultant

f) Mr P M Price, Applicant’s s 94 consultant.

Major Issue 1: Floor Space Ratio

27. The first question for the Court is whether, by reason of its bulk and scale, the proposed development is an overdevelopment of the site. That is, at least in part, a product of the application of floor space ratio (FSR) proposed for Stage 3 of the development proposal and for the development as a whole.

28. With respect to FSR, clause 2 of WLEP relevantly states the following aims and objectives:

(b) to allow development at a scale that is sensitive to environmental and planning constraints; and

....

(e) to ensure that residential development conforms with the scale and character of the individual residential development areas.

29. FSR is defined in WLEP as:

… the ratio of the total gross floor area of all buildings on the site to the total area of the site zoned for the purpose for which the building or buildings may be erected, exclusive of the area of any access handle.

30. Clause 23 (1) of WLEP states that:

The Council shall not consent to the erection or use of a residential flat building if the floor space ratio exceeds:
...
b) 0.9:1 within zone 2 (c) (except within Locality “K”); or
b1) 0.7:1 within Zone 2 (c) (Locality “K”).

...

31. Clause 25A of WLEP states that:

The Council shall not consent to development for the purpose of a residential flat building on an allotment of land within lot 1 in DP 864492 known as 710 Mowbray Road West, Land Cove West....unless the site area of the allotment is not greater than the area calculated by multiplying the number of dwellings in the building by 180 square metres.
(See also the DCP “ Density and Height ” ( Exhibit W6 , p74)).

32. “ Gross floor area ” is defined in the dictionary of the LEP as:

the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimetres above each floor level, excluding:
(a) columns, fin walls, sun control devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external wall; and
(b) lift towers, cooling towers, machinery and plant rooms, ancillary storage space and air-conditioning ducts; …

33. The FSR for locality “ K ” under the DCP ( Exhibit W6 , p 74) was stated as 0.7:1 (max.) for zone 2 (c). Yet the FSR given generally under 3.02 “ Density and Height ” ( Exhibit W6 , p11) for zone 2(c) was 0.9:1. Council wanted a lower density for locality “ K ” because of the individual nature of the site, and its desired outcome of a careful mix between low-medium scale development, as well as the topography and the retention of bushland, resulting in development being concentrated into smaller areas of the site ( Exhibit W2 , p132).

34. The applicant’s SEPP 1 objection ( Exhibit W9 , p8) seeking variation of the statutory FSR control said:

There are several factors that should be taken into consideration and in support of the requested variation to the standard as follows:

(a) most of the additional floor space (approximately 4,000 sqm) is contained within attics and these are areas specifically excluded from Council’s definition of ‘storey’ or height;

(b) there are no perceivable external environmental consequences that can be identified and the (sic) would result directly from the increased floor space (see also later discussion). There is no impact on adjacent properties by virtue of view impact, overshadowing, privacy, additional bulk or scale of development;

(c) any additional building bulk would only be perceivable within the subject site and there has been no decrease in site cover or landscaped area;

(d) there will be increase site excavation which will ensure minimal change to building heights;

(e) part of the increase in floor space is taken by additional service area requirements e.g. fire stairs, lift shafts, service rooms, etc.

35. There were conflicting calculations as to what actually is the correct FSR to apply to the proposed Stage 3 development.

36. Mr Goldsmith, who gave expert planning evidence for the applicant, summarised the following key statistics regarding FSR, prepared by Hassell Architects ( Exhibit B9 , p43):

A. Measured FSR of Approved DA Plans:
- Including Attics 0.79:1
- Excluding Attics 0.74:1

B Measured FSR of Current Plans Including as Constructed Stages 1 & 2
- Including Attics 0.74:1
- Excluding Attics 0.66:1

C FSR Stage 3 Area Only 0.77:1

37. Mr Goldsmith suggested that considering only the FSR for Stage 3 area is not a reasonable method of assessing this proposal, and that the FSR controls in WLEP apply to the whole of the site and cannot rationally be applied to individual areas or stages in isolation.

38. Mr Goldsmith submitted that the areas of building that are below natural ground level, or are attic areas, should be excluded from gross floor calculations as they do not, by definition, constitute a “ storey ” or “ floor ”. If this approach is accepted, then the FSR in this case would be well below the statutory 0.7:1.

39. On the other hand, Mr Ingham, who gave expert planning evidence for the Council, calculated the FSR at 0.75:1 (total floorspace 27,384.1m2) under clause 3.19 of the DCP. This clause allows Council to discount 20% of the FSR requirement as a result of dwelling units designed for adaptable dwellings and communal facilities by way of SEPP 1 objection to the FSR controls. However, without these discounts, the FSR would be calculated at 0.77:1 (total floorspace 28,054.1m2) for the masterplan site. Mr Ingham submitted that “ the proposed floorspace is clearly well in excess of both the floorspace deemed appropriate for the Stage 3 development and, the development of the Masterplan site,” and that the proposed development “appears to be loading Stage 3 of the development with the units and floorspace that were lost in Stages 1 and 2.”

40. Mr Ingham submitted that the applicant’s SEPP 1 objection “ does not provide any justification for why it is unreasonable or unnecessary to comply with the statutory floorspace control for the site” . WLEP and the “ masterplan consent ” issued for the site clearly stipulated that an FSR of 0.7:1 is the maximum permitted for this land, and that the additional floor space located in the attic space within the roof should, under the definitions, be included in the calculation of gross floor area, as this attic space contributes to the bulk and scale of the building.

41. For example, in the elevations in Buildings 14A and 14B, the majority of the roof form, within which this attic space is located, is up to 5.9 metres in height. Mr Ingham submitted that the addition of one storey to Building 14B is contrary to the objectives of the density and height controls specified for the site, and suggested that the additional floorspace will be perceivable from not only within the site, but externally to the site, including residential properties on the opposite side of Mowbray Road.

42. However, Council’s Scott Lincoln ( Exhibit W3 , p92) stated that this non-compliance should be accepted because the proposed amenities building (250m2), and the significant amount of floor space (660m2) contained within the roof area of the unit blocks, effectively reduces the bulk and scale of the building. The Council agrees that the amenities building does not result in unacceptable bulk and scale ( Exhibit W3 , p 101), given that it is located within an excavated area of rock in the centre of the site. If the amenities building and the provision of adaptable housing units complies with the objectives of the FSR controls, the applicant submitted that strict compliance with the standard is unreasonable and unnecessary in the circumstances.

43. Dr Lamb ( Exhibit B10 , p4) also submitted that there would not be any substantial visual impact with a development of this scale compared to another development that varies by a few percent in FSR, unless the configuration led to isolated and concentrated impacts in some sensitive location.

44. I believe that the SEPP 1 objection in relation to FSR is supportable. Although there will be an increase in some wall heights, and there will be slightly different forms of building and roof designs, this is not a sufficient ground to refuse consent.

Major Issue 2: Height

45. Both WLEP and the DCP are framed in terms of storey heights and their performance, rather than numerical standards.

46. Under the DCP, clause 4.03.01 “Density and height” for locality “ K ” provides for a maximum of 3 and 4-storey buildings. The DCP has four performance criteria which required that:

(1) Development must be designed to protect the landscape and scenic qualities of the locality.
(2) The building height must be designed to reflect the height of the tree canopy cover over the site.
(3) Buildings must be designed to maintain existing views over the site and provide for a reasonable sharing of such views.
(4) A landscaped buffer area along Mowbray Road West should maintain the views of the residents on the opposite side of Mowbray Road West and to provide a natural screen to development on the site when viewed from Mowbray Road West.

47. Height is defined and measured under the DCP (p13) as:

a) if the relevant provision of this plan specifies a maximum height as a number of storeys, the height of the building is to be measured as the maximum number of storeys that can be intersected by the same vertical line through the building,
b) ...
c) ...

48. The purposes of the “ density and height” control under clause 3.02 of the DCP were stated in the following terms:

- to encourage housing densities appropriate to the capacity of the site and its locality while minimising the impact of development on significant views from and solar access to adjoining residential properties
- to ensure that the height and scale of new development are not excessive and relate well to the local extent.

49. Clause 24 of WLEP states that:

(1) The Council shall not consent to the erection or use of a residential flat building if the height exceeds:
b1) if the building is on land within Zone 2 (c) (Locality “K”), the number of storeys should for the land on Sheet 2 of the map...

50. Clause 24 (5) states that for:

the purposes of determining the number of storeys in a residential flat building on land within Zone 2 (c) (Locality “K”), “storey” means the space between any 2 successive floors, or the space between natural ground level and any floor immediately above that level, or the space between any floor and its ceiling or roof above. This does not include an attic or a floor or level of the building used exclusively for foundation areas, car parking, storage, laundry facilities, workshops or the like or any combination of these uses, where the ceiling of that floor or level is less than 1 metre above the natural ground level at any point...

51. The DCP also defines “ storey ” in similar terms to cl 24(5), but adds (p13) the following:

Any such space that exceeds 3.5 metres in height is counted as 2 storeys. The following spaces are not to be treated as storeys for the purposes of this definition:

(a) ...

(b) ...

(c) in the case of a proposed building, an attic with a floor area that will not exceed 60% (including lift towers and plant rooms) of the floor area of the level of the building immediately below.

52. An “ attic ” is defined in WLEP as:

a habitable space totally within the roof space of a dwelling, or of a building including a dwelling, being a dwelling that occupies all or a substantial part of the level of the building immediately below the habitable space and of which dwelling the habitable space is part.

53. The objectives of the height controls on the site, in Mr Ingham’s opinion, are to protect the landscape and scenic qualities of the locality, ensure building heights are lower than the height of the tree canopy, maintain existing views over the site, and ensure that buildings reflect a height consistent with the locality ( Exhibit W9 , p14).

54. The applicant proposes to increase the amount of excavation in the Stage 3 area to ensure maximum building heights are reduced to levels similar to that already approved by Council. Stage 3 involves the redesign and rearrangement of the following buildings ( Exhibit W1 , p9):

Building 13A 5 townhouses
Building 13B 6 townhouses
Building 14A 16 apartments
Building 14B 36 apartments
Building 15A 6 townhouses
Building 15B 6 townhouses
Building 16 10 townhouses
Building 17 9 townhouses
Building 18 6 townhouses

55. The rezoning application report prepared by BBC Consultant Planners relevantly stated ( Exhibit W2, p27):

The tree canopy on the site is generally in the range of 12 - 16 metres with some individual trees up to 18 metres and down to 8 metres. Thus the tree canopy would be above a four storey building on the site. The layering of trees would ensure that buildings lower down the site would be seen against a vegetated background. Having regard to visual impacts of the site and the relationship with adjoining and adjacent uses, buildings at least up to four storeys would be appropriate on the site. Higher buildings may be appropriate subject to design and consideration of visual impacts from surrounding viewpoints.

56. This report also recommended the same building height as the DCP ( Exhibit W2 , p26). Dr Lamb in his report ( Exhibit B10 , p5) pointed out that this rezoning application report ( Exhibit W2 , p1) stated the buildings to be “ at least up to four storeys ”, and that this statement could be construed to mean that there is an opportunity for buildings taller than four storeys, although four storeys is preferred, but only if there is appropriate consideration of the visual impacts of the proposed development. Dr Lamb states that this potential increase in building height is reiterated under the new draft DCP (incorporated into the rezoning application report under Appendix D, Exhibit W2 , p116), where these heights were allowed because of the screening offered by the tree canopy both within and adjacent to the site.

57. The applicant’s SEPP 1 objection on variations to the height controls ( Exhibit W3 , p102) says:

Compliance with the height control is considered unreasonable and unnecessary in the circumstances of the case. In summary, the objection made pursuant to SEPP No 1 in relation to no of storeys is made on the grounds that the revised arrangement - which exceeds the numeric height limitation along the southern edge of zones 2, 3 and 4 - achieves the performance criteria outlined in DCP 15. Indeed, it is argued that the scheme, which involves the vast majority of the site being developed as one storey less than that permissible, is more successful than a design which is adhered strictly to the maximum permissible height limits.

58. The DCP relevantly provides in the performance criteria of cl 3.02 (p11) that:

1. Habitable rooms within the roof space may be permitted with a SEPP 1 objection to the height control standard and not counted as a storey, providing that the attic space is part of the dwelling immediately below and the resultant roof will not:

- cause undue overshadowing of adjacent properties and open spaces;
- cause undue loss of significant views from adjacent residential properties; or
- be excessive in scale and bulk relative to the rest of the building.

59. A number of experts gave evidence on this issue.

60. Dr Lamb, an expert for the applicant, interprets these definitions to mean that the attics proposed in the development would not be counted as storeys. Due to the variation in the topography of this site, different height limits are proposed for the buildings by the LEP and DCP. Dr Lamb suggested that variation in the height limits correctly provide “ flexibility, in dealing with a complex site, with complex topography”, but criticises the use of general height performance standards. He submitted that RLs are a more accurate method, particularly in areas with excavated, retained or sloping areas ( Exhibit B10 , p 9).

61. Dr Lamb, therefore, challenged the Council’s submission that there has been a breach of storey heights, when the only evidence of the actual building heights has been shown in a series of photographs on which “ approximate RLs ” are shown against various view points, and were intended only to “ assist people on inspection to visualise Mr Brindle’s performance standards in an easily interpreted form” ( Exhibit B10 , p8). Dr Lamb submitted that numerical standards were never conceived and were never made into a form with any statutory force.

62. Dr Lamb ( Exhibit B10 , p 4) submitted that the development proposal in Stage 3 should be allowed because many of the buildings already approved had been reduced, while others were increased, so that the overall effect reduced the visual presence, height and visibility of the profile of the development, when compared with the scheme for which there is consent.

63. Mr Goldsmith also supported the development proposal by submitting, that except for Buildings 14A and 14B, the other buildings comply with the height controls (ie number of storeys permitted), and, in most instances, the proposed buildings are well below the permitted height. Mr Goldsmith submitted that the Council reports indicate that the height zones and DCP requirements would have to be altered or varied for this development to proceed in the way the Council prefers in any case, and that, therefore, this proposal is entirely consistent with their objectives and intentions.

64. The main issue is the height of Building 14B, which has been increased (in maximum height terms) from the approved RL 52.5 to 55.0 - 57.80. It will consequently be increased from a 3 - 4 storey building to 4 -5 storey building. The proposed Building 14B extends to a maximum height of RL 57.541, over 11 metres above the old RTA building, and above the ridge height of the nearby NUSS Building (RL 56.97).

65. Mr Goldsmith ( Exhibit W1 , p43) does not agree that this new level to Building 14B will have any adverse impact on the views of Mowbray Road residents, particularly with the landscaped buffer that will screen most of the development once it reaches maturity. Mr Goldsmith also argues that the absolute limit on height and the FSR controls regarding Buildings 14A and 14B are unnecessary, especially as most of the additions have been achieved through the incorporation of lofts and attics. Furthermore, the fact that Building 14B is of similar height to the NUSS Building provides a complete masking of the less visually interesting views of that building.

66. Mr Ingham, who gave expert evidence for the Council, contends that the NUSS building was never supposed to have relevance to the rest of the site and that Building 14B is well in excess of the height considered appropriate for development within this area of the site. He is of the view that Building 14B should not extend higher than the approved height of RL 52.50, particularly with regard to the impact of excessive height and bulk of development on the scenic quality of the locality, which is clearly evident in the case of the adjoining NUSS building. The apparent removal of the existing tree canopy (particularly Tree No. 6) for the proposed vehicle access, will clearly expose Building 14B to view from Mowbray Road. The building will also impede views over the site towards distant vegetated ridgelines, and it is submitted by Council that the development proposal therefore does not meet the performance criteria and special controls developed for Locality “ K ” through the planning controls ( Exhibit W9 ).

67. A number of nearby residents objected to the development proposal. Messrs Campbell, Movesesian and Shaw gave evidence of their concern with the visual impact of the height increase in Buildings 14A and 14B, so that these buildings will now be higher than the tree canopy. The impact on bushland, and consequent lack of privacy, has also been a concern, particularly with the proposed removal of mature trees close to Mowbray Road.

68. On the other hand, Mr Draper, an expert witness for the applicant, concludes that the heights of the buildings in Stage 3 are consistent with the Performance Criteria of the DCP in that they “ do reflect the height of the tree canopy cover over the site”, and that the development will exceed such requirements with the enhancing qualities of the new landscaping and bushland restoration works as approved by the Council.

69. Mr Draper also suggested that the minor changes proposed to the locations or height of the buildings in this stage will have no significant impact upon the existing and future height of the tree canopy cover on the site ( Exhibit B11 , p12).

70. Mr Goldsmith ( Exhibit B9 , p12) submitted that Buildings 14A and 14B have been positioned in the southern-most part of the subject land in order to provide an appropriate separation from the existing cottages on Mowbray Road, and to complement the bulk of the NUSS Building. This is in accordance with Council’s opinion, in that the southern end of the site provides the best opportunity to accommodate taller buildings.

71. Dr Lamb agreed, with Mr Goldsmith and Mr Draper, that the vegetation present on the site provides adequate screening, satisfies the performance criterion, and will ameliorate impacts on views from most properties in Mowbray Road West, and that the effectiveness of this “will increase in time, both as a result of vegetation growth in the restricted development area and in the interior of the development site” ( Exhibit B10 , p6).

72. Mr Wegman’s photo montages ( Exhibit W14 ) would also suggest that the profile of the proposed development would either be out of view or mostly screened by existing vegetation. Dr Lamb suggested that the main buildings with a direct view of the development are industrial and institutional buildings, and that the Stage 3 development would be mostly hidden behind Stages 1 and 2. He submitted that the proposed development would not have the effect of interrupting important view lines or result in any significant view loss.

73. On the other hand, Mr Stubis, an expert witness for the Council, submitted that the landscape plans will not achieve the canopy height suggested by Mr Draper because of soil type and proposed tree types ( Exhibit W11 ).

74. I acknowledge the various concerns that the additional building height could extend above the existing tree canopy, and, given the unique nature of the site and its surrounds, the appropriate height for Building 14B should be approached carefully. In approaching the question, I have taken into account the concerns raised by Mr Ingham and Dr Lamb, with particular regard to the fact that the proposed development is to be located in a primarily residential area, where the amenity of occupants is a critical factor.

75. However, I have concluded that, as the proposal complies with the objectives of the relevant controls, the SEPP 1 objection should be upheld.

Other Merits Issues

76. I turn now to consider several other merits issues canvassed during the hearing.

(a) Impact on Bushland

77. The DCP, in clause 4.03.02 “Bushland Protection ”, states the following aims:

- To encourage the protection of bushland on the site
- To ensure that new development is environmentally compatible with existing development in the locality
- To encourage the protection of landscape and scenic qualities of the area
- To ensure that access arrangements for the new development are adequate to meet the needs of the development.

78. The DCP proposes to fulfil these aims by having a “ Restricted development area ” in which council cannot consent to any development “ other than drainage, landscaping, gardening or bush fire hazard reduction ”( Exhibit W6 , p 75). Other development on land marked “ Bushland to be retained ” is restricted to “ small outbuildings...that do not involve the removal of mature trees being remnants of natural woodland vegetation or trees that make a significant contribution to the landscape and scenic qualities of the site”.

79. The “ performance criteria ” under this section of the DCP state that:

1. Development must be designed to protect the remnant bushland on the site from encroachment by new development as well as to provide a management plan for the bushland understorey.
2. The bushland is to be left as communal open space without encroachment by private open space areas. This is to ensure the protection of the bushland and to maintain it’s integrity as a screening device for development from Epping and Mowbray Roads.

80. Figure 9 of Mr Ingham’s report ( Exhibit W9 , p15) illustrates how the proposed development intrudes into the area identified as “ bushland to be retained ”, under the DCP, in a number of areas. The most significant intrusion occurs with almost the entire Building 14A extending into bushland area - 8.5 to 9 metres further than approved originally. The driveway access to Building 14A is now proposed within the bushland area, whereas, Building 17 also extends into areas of “ bushland to be retained ”, and could potentially damage a mature Blue Gum (Tree No. 30) 10 metres high.

81. The Council submitted that such removal of trees reduces the effectiveness of screening around and within the perimeter of the site, and, therefore, has a critical impact on the effectiveness of the planning controls. The extension of the development into these area identified as “ bushland to be retained ”, and the slope of the land in this locality, will substantially reduce the potential for appropriate landscaping and vegetation to be introduced into this area.

82. Mr Stubis suggested that the attempts by the applicant to ameliorate impact to existing significant trees is inadequate or non-existent and, as a result, there will be a reduction in existing canopy cover. Mr Stubis complained of a lack of adequate information, lodged with the Council, making it difficult to determine the full extent of the impact ( Exhibit W11 , p1).

83. Mr Stubis also pointed out that the proposal will result in direct and indirect construction/tree conflict with a number of trees nominated to be retained on the site ( Exhibit W11 , p5), many of which are contained in the Bushland Protection/ Restricted Development areas. These include trees numbered 21, 25, 24, 23, 18, 17, 16, 15, 14, 30, 13, 31, 11, 32, 33, 9, 8, 7, 6, 5, 4, A, and B. As Mr Stubis summarises ( Exhibit W11 , p6):

Apart from their environmental value, these trees are extremely important in screening or filtering the views of the development from the east. Their structure and spatial distribution is such that if any of these trees is lost it will negatively affect views into the development from nearby properties. Their screening function will not be replaced by proposed supplementary landscape treatment for a number of years.

84. In response, Mr Draper and Mr Goldsmith, for the applicant, submit that the map of the site indicating “bushland to be retained” in the DCP is flawed as it is very generalised and does not contain actual “bushland” , but varying types of vegetation, most of which is weed infested. The encroachment into Bushland Area 3 for the excavation of the western end of building 14A is considered minor, as only fill material and weeds are removed, and the bushland restoration works will be enhanced and hastened by such actions.

85. Mr Draper also submitted that the planting of trees around each building will deliver a net increase of 206 new trees. In particular, there will be 259 new and remaining trees in and around Stage 3, which will markedly improve upon the previous landscape. Mr Draper suggested that the minor adjustments to the height or locations of the building platforms is inconsequential when compared to the net improvement of the overall site. In any case, the applicant submitted that the previous excavation of the site by the RTA, and the resultant modification of the topography, have left little remnant vegetation on major parts of the site.

86. Contained within the Rezoning Application, prepared by BBC Consulting Planners in April 1996, ( Exhibit W2 at Appendix ‘ A ’, p75) was a Flora and Fauna Investigation prepared by flora and fauna consultants, Connell Wagner Pty Limited, which made recommendations for the retention and management of indigenous species for the canopy and management for the understorey, and made the following observations:

… No threatened plant or animal species were observed or are reported to rely on habitat occurring in the study area for their survival. Any development of the site would not be likely to have a significant effect on the environment providing that the retention of native vegetation as recommended is adhered to…

87. I am satisfied that the proposed development is environmentally compatible with the bushland areas that are to be retained, and that the additional vegetation under the proposed landscape plan will greatly enhance the site and effectively reduce any visual impact of the development.

(b) Building Setback

88. The DCP provides in Clause 3.04:

Side and Rear Setbacks

4. Minimum setback from side or rear boundaries:

- for walls 3+ storeys in height:

3m for the ground floor level of the building with an increase of 1.2m for each storey of the building above the ground floor level.

setback = 3m + 1.2m/ storey above the ground floor storey.

89. A variation to the setback controls is permitted under the DCP, provided there is compensation in another part of the setback, and it complies with the objectives of the control, in particular, bulk, privacy and overshadowing. Mr Goldsmith submitted that the side boundary setback, on the southern boundary of the site, would be 6.6m from the land owned by Sydney Water. This land containing large mains close to the surface is considered to be almost impossible to build on and the 5m setback of Buildings 14A and 14B is considered reasonable, given this constraint on Sydney Water’s land.

90. I accept that the proposed building setbacks generally comply with standards and objectives required by the DCP.

(c) Car parking

91. The amount of visitor carparking provided was the subject of some discussion during the hearing, but the conditions in their final form (see Exhibit W12 , nos. 7-11) suggest 26 out of 215 spaces in Stage 3 are to be for visitors.

92. Mr Ingham submitted that, due to the nature of the site and the proposed road access into the site, private motor vehicles will be the predominant form of access to and from the site for residents and visitors alike. Mr Ingham criticised Building 18, which are all three bedroom townhouses, in that only a single garage is provided for each dwelling in contravention of the DCP, and, therefore, the provision for car parking is inadequate to serve the needs of the future residents ( Exhibit W9 , p17), particularly given the nature of this site, and the inability of Mowbray Road to accommodate overflow parking.

93. I am satisfied that, overall, the development satisfies the objectives of these controls and I would not refuse consent on the basis of the visitor car parking issue.

(d) Village Green

94. The approved masterplan for the site had a “ Village Green ”, approximately 580m2 in area, in a central location on the site. Amendments of the car parking layout are stated to require a reduction in the Village Green of approximately 160 m2.

95. The proposed development also seeks consent to setback Building 15A, which reduces the “ Village Green ” area to 295 m2. Overall, the area will be half the size shown in the original plans. Mr Ingham submitted that this reduced area is inadequate “ to serve the needs of a development with 100 dwellings, let alone a total development on the Masterplan site of 201 dwellings” .

96. The recreational “ Open Space” under clause 3.05 of the DCP is calculated as follows:

- townhouses 2 storeys by definition - 50% of the site;
- Apartments 4/5 storeys by definition - 55% of the site

97. As the Stage 3 development consists of 48 townhouses and 52 apartments, Mr Goldsmith for the applicant submitted that a reasonable interpretation of the control would be 53% of the site. Fifty-three percent of 15, 831m2 would be 8,390m2, and 9,582m2 has been provided (60%).

98. For townhouses, the control requires the provision of private open space either in the form of ground level courtyards, or in the form of balconies/terraces. Mr Goldsmith submitted that these requirements have been met and that the addition of open space and communal facilities provided on the total development site is well in excess of the requirements under clause 3.05 of the DCP.

99. I agree with the applicant’s contention that the open space requirements have been satisfactorily complied with.

Major Issue 3: Section 94 Contributions

100. The without prejudice condition No. 5, and the schedule related to it (original version, Exhibit W12 ), required s 94 contributions to be made as follows:

(a) Open Space and 2BR - 20 x $7453 = $149,060

Recreation facilities 3BR - 80 x $10122 = $809,760

(b) Road and Traffic/Transport U100 x $749.32 = $74,932

Management

Total Contribution due $1,033,752

101. The s. 94 plan itself ( Exhibit W17 , p9) notes the principles for testing the validity of a consent condition requiring a section 94 contribution as follows:

- the contribution must be for, or relate to, a planning purpose
- the contribution must fairly and reasonably relate to the subject development
- the contribution must be such as a reasonable planning authority, duly appreciating its statutory duties, could have been properly imposed.

102. These principles emphasise the importance of ‘ reasonableness’ both in terms of the public facilities for which contributions are sought and the level of contributions. The draft Section 94 Contributions Plan Open Space, Recreation and Community Facilities No. 1/99 in December 1999 also incorporated the principles of (1) fair apportionment, (2) reasonableness and (3) nexus.

103. The power of Council to levy a contribution under s94 relies entirely upon Council’s ability to establish a nexus between the proposed development and the need for increased public facilities. The three aspects of a nexus, namely causal, physical and temporal, must be identified when determining these contribution rates. Apportionment, which is the distribution of costs providing facilities between existing and incoming residents is calculated at 75:25 under Part 5 Calculation of Contributions.

104. For this new development, it is assumed under the s 94 plan, that the increase in resident and worker populations will place greater demands on existing public facilities, and will require a higher standard in the provision of public facilities. The plan also assumes that the growth rates will concentrate a large percentage of the incoming population in the Chatswood and St Leonards Commercial Centres, and in the existing and proposed medium high/density residential areas.

3.1 Open Space & Recreational Facilities

105. The Willoughby City Council Section 94 Contributions Plan for Open Space and Recreation Facilities was adopted in February 1997 and became effective in March 1997. The purpose of this plan is to “ satisfy the requirements of the Act and Regulation as to enable the consent authority to require contributions toward the provision, extension or augmentation of public facilities that will or are likely to be required as a consequence of development within the Willoughby Council area or that have been provided in anticipation of or to facilitate such development”.

106. The s94 Contribution Rate ( Exhibit W17 , p45) is determined by the following formula:

$C = $TC - $RCC + $RCC

IP IP + (EP) x AF

where:

$C = the initial contribution rate

per person

in dollars

$TC = the total cost of the Works Schedule over 12 years

$RCC = the total cost of the Recreation Centre and land acquisition over 12 years

EP = the

existing total resident and worker population

for Willoughby as at 1997

IP = the

anticipated incoming

resident and worker population for Willoughby for the period 1997-2008.

AF = Attendance factor is the estimated proportion of the total population attending the Recreation Centre and is projected to be 5.7%

107. The Council estimates under this formula that the initial contribution rate per person is established at $3,708 with the following contributions (on the left hand side of the table):

As Adopted by WCC As Determined by APA

Open Space Facilities $7,453 per 2 bedroom unit $2512 (max)

$10,122 per 3 bedroom unit $3768 (max)

$12,940 per 4 bedroom unit $5024 (max)

108. Mr Price, an expert for the applicant, criticises the contribution rates determined by Council compared to those determined by “ APA ” ( Exhibit B18 , p2) as there is a lack of information available as to how the contribution was “ properly ” apportioned with existing users. Mr Price submitted that this is a failure of nexus.

109. The contribution rate worked out from this formula under the s. 94 plan is on a $ per person basis, whereas the contribution rate for the apportionment under the Works Schedule is worked out as $ per bedroom. As Mr Price relevantly points out, “ the ratio of the number of dwellings or bedrooms to population are substantially different mathematically ratios to the census occupancy ratio ” ( Exhibit B18 , p10). Therefore, there can be no assumptions about the occupancy rate relating to the number of bedrooms and the demand generated by that population. Whatever the capital cost, the charge on a bedroom basis can only be derived by dividing that cost by the growth in new bedrooms (which the parties have agreed is 11,537). The parties have agreed that this rate per bedroom, rather than the occupancy rate (per person) methodology, is preferred as a more simple, accurate method of determination. Therefore, I will focus on the Works Schedule Apportionments outlined in Exhibit B19 .

110. The applicant submitted that the items in Exhibit B19 should be looked at specifically to determine how each item benefits the new residents and then to apportion the amount accordingly. The apportionments under debate have been summarised in the table below (taken from Exhibit B19 ):

Work Schedule:

Type/Area Cost Apportionmen t

(Applicant) (Respondent)

1) Bushland $2,635,000 50% 50%

2) Land Purchase $14,500,000 15.6% 50%

3) Chatswood RC $25,000,000 15.6% 50%

4) Administration $445,000 65.3% 100%

5) Chatswood CBD $6,295,000 15.6% 50%

111. The Works Schedule presents a wide range of works, which address deficiencies and emerging demand trends in the provision of open space and recreation facilities in the Willoughby LGA. The Works Schedule also considers the need to maintain the existing quality of public facilities, extend facilities where demand warrants such works, and provide new facilities, balanced by the issues of “ nexus ” and “ reasonableness ”.

112. Land acquisition involves the purchase of open space, which is zoned as Open Space Reservation, and/or is located adjacent to existing public open space areas. This land acquisition program is targeted in areas where the new population growth is expected, where there is additional demand for open space land. Council proposes to apportion 50% of the land cost to new residents as a reasonable portion, since the demand is mainly by new residents.

113. The apportionments determined by Council have been criticised by Mr Price as having shortcomings, particularly with regard to the introduction of “ worker population”. Mr Price argues that there is a lack of nexus for this addition and concludes that while the use of worker population may have “ some merit for assessing commercial development contributions, it cannot be used in the general apportionment with resident population as their needs are quite different”. The Council has given no basis for attributing the worker population to commercial development, and Mr Price considers such an approach “ very confusing”. He suggested that the percentages attributed and distributed to the workers and the residents should be dealt with separately. I agree with Mr Price’s approach as Council has not persuaded me to support its methodology.

114. Mr Price criticises the Council’s apportionment for the Chatswood Recreation Centre as it fails to take into account that it “serves the social needs of all the residents not just the new ones ”( Exhibit B18 , p6) and that this work is correcting a major deficiency that already exists in the hierarchy of recreation facilities available in Willoughby Council’s area.

115. Mr Palagedara, from the Council, argues that the Chatswood Recreation Centre is used by both incoming and existing residents, yet the existing residents have already paid some capital costs. Furthermore, incoming residents are the ones who create and increase the demand, and that because of this trigger effect they should pay half. Mr Palagedara suggested that the true cost of the Chatswood Recreation Centre is more than $25,000,000.

116. The applicant submitted that its apportionment figure of 15.6%, shown in Exhibit B19 , best represents the true proportion of the residential population growth as a result of this development. The applicant’s method of determining this representation is to add the total existing worker population and total worker population growth (51,855 persons) and then divide that figure by the residential population growth (9600 persons taken from table 11, Exhibit W17 , p 26). Mr Price submitted that, therefore, the applicant should contribute 15.6% of the capital costs such as Land Purchase, Chatswood Recreation Centre and Chatswood CBD.

117. Mr Price criticises Council’s general open space and recreation facilities estimate of 50%, in that it “ does not seem to represent a considered attempt at cost estimation” . Furthermore, he submitted that the determination of the population growth needed for these plans “ were essentially based upon community and Council planning perceptions of what work ought to be undertaken” without any specific analysis on how growth population and the proposed works schedule connection had been made ( Exhibit B18 , p8).

118. I agree with the applicant’s method of determining the contribution rate as the more accurate and reasonable rate. The Council has failed to establish a nexus between the capital costs and the residential development which would justify the contribution rates requested by them. Council has also failed to adequately explain its methodology to the Court and I will, therefore, allow the applicant’s suggested amendments (drawn from Exhibit B19) with respect to this component of s 94 contributions.

3.2 Traffic and Transport Management

119. The aim of the Willoughby City Council Section 94 Contributions Plan for Road and Traffic/Transport Management is as follows:

a) To permit the council to require a monetary contribution or dedication of land for road and traffic/transport management facilities and services when determining development applications;

b) To permit the Council to accept the dedication of land or provision of a material public benefit (or works in lieu) pursuant to section 94 (2C) of the Act;

c) to detail the manner of determining contribution rates for development, and the rates;

d) to provide work schedules for the expenditure of contributions;

e) to set out the council’s payment policies for contributions.

120. The s 94 contributions sought for Road and Traffic/Transport Management was $749.32 per unit. Council submitted that this figure was reached under the sections of its s 94 plan entitled “ Area other than catchment areas 1 - 4” ( Exhibit W17 , p 9) on the basis that the budget of $250,000 per annum shared among developments, on a per dwelling basis.

121. Mr Price notes that the RTA, at the time of rezoning, contributed $200,000 towards traffic facilities and management, and submitted that, therefore, the contribution by the current owner in respect of the local works must, therefore, be zero.

122. The decision of the Court of Appeal in Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435 relevantly decided, according to its headnote:

…
(2) Where part of the cost, recoupment of which the council seeks by condition pursuant to s 94 (2A), has been subsidised by arrangement with government the condition must exclude recoupment in respect of the subsidy.
..
(4) The cost referred to in s 94 (2A) is a once and for all cost crystallised at the time of construction and does not include cost of subsequent maintenance in respect of continuous provision.

123. Priestley JA relevantly stated (at 446):

...In cases where, by arrangement with the government, the Council was never liable to anyone for payment of part of the cost of the work, the power to impose a condition requiring contribution towards recoupment of cost cannot be referable to a cost not incurred by Council.

124. As I stated in King and Campbell Pty Ltd v Hastings Shire Council [2000] NSWLEC 11 (at par 35), the proper test, as established by Allsands , must be applied to those grants which have been specifically tied to the construction or upgrading of roads or other works which will experience increased demand as a result of the proposed development. From these cases, it is apparent that this Court must deduct any relevant RTA grants received by the Council prior to calculating the “cost to Council” .

125. Mr Palagedara for the Council, submitted that the RTA funding arrangement for road works in the Willoughby Local Government Area and the infrastructure funding under s94 scheme for transport management are mutually exclusive.

126. The evidence suggests that the $200,000 was not part of the normal RTA grants scheme, and I agree with Mr Price that the applicant is entitled to a reduction in contribution as a result of the RTA contribution.

127. Mr Price also submitted that the applicant should pursue a contribution from Council for the cost of works carried out in Mowbray Road from which existing development users will benefit. The traffic assessment indicates that the traffic generated by the subject site is 920 vehicles per day, while the existing development also generates approximately 920 vehicles per day. On that basis, 50% of the total cost of the works ($183,380) in Old Mowbray Road and Mowbray Road might be attributable to the applicant’s development. I agree with Mr Price that these costs are covered by the special RTA grant.

128. In terms of proposed work contributions, Mr Price submitted that the only works in reasonable proximity to the site are the LATM works for Chatswood Southwest LATM - $100,000. Mr Price suggested that the share of the cost can be apportioned based on the 1250 trips per day generated by the subject site compared to the 15,000 trips per day on Mowbray Road (ie 8% of the benefit). Therefore, the net cost would be $8,000 with the contribution rate at $50.00 per unit (assuming 201 units).

129. Mr Palagedara for the Council, submitted that the traffic and transport works listed in the plan amounts to $1,990,000. However, the plan has not been updated since March 1997 and, therefore, the subject site was not identified as a traffic generating development.

130. I agree with Mr Price’s submission regarding the shortcomings present in the plans including the shortage of information available on the methodology used and the explanation of conclusions reached by the Council under these plans. I agree with the applicant that the works contribution of $50.00 per unit is reasonable.

Conditions to be imposed

131. As is often the case the tendered “ Without Prejudice ” Conditions underwent several revisions during the hearing, and again during the subsequent written submissions period.

132. In the end, the court had final versions containing Schedule 1 (A) “ Deferred Commencement Conditions ” and Schedule 1 (B) “ Conditions of Consent ” ( Exhibit W12 ), and details of the applicant’s requests for changes which were not agreed.

133. In its final written submissions the applicant took issue with several proposed conditions. I need not repeat here the conditions, the suggested amendments, or the submissions, but I summarise my conclusions as follows:

Schedule 1 (A) Deferred Commencement Conditions (“D/C”)

134. D/C 1 Technical Services Requirements

The parties have agreed to reduce the period of lodgment to 14 days and I am content to impose the condition on that basis.

The Council submitted that the other amendments sought by the applicant, that is, requiring the Council to approve plans within a certain period of time, is to impose upon Council a condition which is onerous and beyond power.

The applicant argued that it is incorrect to say that a condition cannot impose an obligation on a Council, as s 80A does not limit the Court’s discretion in any manner. It argued also that it is important that its applications are dealt with expeditiously.

135. D/C 2 Landscape Plans

Again the parties have agreed to reduce the period to 14 days and I am content to impose the condition on that basis.

136. D/C 3 Landscape Drawings

Again the period will be reduced to 14 days, by agreement.

Council’s satisfaction

137. D/C 5 Pedestrian Link Path

The Council argues that the pathway, a valid condition of the prior consent, must continue through Stage 3 of the site to Mowbray Road.

138. D/C 6 Stormwater

The applicant submitted that this condition is already covered under Condition 4 of the main consent and, therefore, does not need to be included under the D/C conditions.

Schedule 1(B) Conditions of Consent

139. Condition 1 Hours of Work

I agree with Council that the conditions imposed by Commissioner Watts should continue to apply until the noise management plan is approved.

140. Condition 2 Excavation works

The applicant seeks to remove the words from the draft condition ‘ The plans submitted for approval must include a bulk excavation plan and a works-as-executed plan showing all excavation works that have already been carried out” .

The Council argues that these words are necessary because such a plan is appropriate in order for it to determine the amount of excavation required. This specific plan is also important in this case because of the impact such excavation can have on the existing vegetation.

141. Condition 3 Consent Plans and Details

The Council has no real objection to the suggested format of including a schedule of plans rather than list their numbers in the condition, although it would prefer to use the latter method as is the usual practice. I will allow the use of a schedule.

strictly

generally

strictly

142. Condition 4 Stormwater

The applicant argues that these works are unnecessary until the final occupation of the Stage 3 development is required and to use detention ponds in the meantime. Council submitted that these works form an integral part of the sedimentation and erosion control measures and, therefore, should be implemented prior to occupation.

143. Condition 5 Section 94 Contributions

The draft condition has been amended to reflect the terms of this judgment. A Bank Guarantee was included in the conditions for Stages 1 and 2 and the applicant suggested that amendment to the draft conditions here.

144. Condition 15 Waste Management

The applicant points out that requirement 2 refers to an intersection in Stages 1 and 2. The Council is happy to delete that requirement, but has suggested a slight clarification of wording to apply to the remaining terms of the draft condition specifically to Stage 3,and I have made that amendment.

145. Condition 120 Stormwater Management Controls

‘bushland contractor’

146. Condition 122 Linen Plans and 88B instruments

The Council submitted that the intention of its suggested condition was to ensure that all conditions of this development consent (if granted) are included in the s. 88B instrument and that Council had sufficient opportunity to ensure that that is so.

147. Condition 124 Pedestrian Link

I see no reason to vary the draft conditions. D/C Condition 5 also refers.

148. Condition 128 ESCP and Stormwater Management Plan

The applicant submitted that the suggested condition is unworkable, and imposes unreasonable obligations on the applicant.

The Council submitted that the first paragraph of the condition should be allowed as it merely requests that stormwater and sedimentation control be in accordance with what the applicant proposes and what has been approved. The Council also submitted that the second paragraph should be allowed because it simply requests that before any alteration to the Stormwater Management Plan be undertaken, that the alteration be subject to Council approval. Furthermore, the last sentence only states that before any discharge of water from the amended system is to take place, warning is to be given to the Council so that the situation can be monitored. The Council argued that this condition is logical and necessary for proper environmental control.

149. Proposed Condition 134 Inconsistency between these and earlier conditions

The applicant proposed that these conditions should prevail over those of the original consent (as modified) where there is any consistency.

Council suggested that it would be more appropriate to address any inconsistencies as they arise.

150. Proposed Condition 135 Accredited Certifier

The applicant suggested a further condition in these terms:

Where in this consent the approval of the Council is required such approval shall be deemed to be satisfied if made by an accredited certifier.

The Council submitted that it should be permitted to be the approving authority with respect to the various stages of this development in the interests of consistent environmental control, and that this condition would invite confusion and inconsistency in the approval process for this development.
I agree with Council that this condition is not appropriate to this consent.

Conclusion

151. The Court is satisfied that development consent should be granted, subject to the conditions attached to this judgment, now comprising schedules:

1(A) Deferred Commencement Conditions

1(B) Conditions of Consent

1(C) Relevant Plans and Drawings (Condition 3)

1(D) Contribution Payments (s 94).

Orders

152. The formal orders of the Court will be:

1. The appeal is upheld
2. Development application No.1999/1195 , being for Stage 3 of the development multi-unit residential buildings on lot 1 DP 864492 at 710 Mowbray Road, Lane Cove is determined by the grant of consent subject to the conditions attached.
3. The exhibits may be returned, except Exhibit W8 and Exhibit W12 .

WITHOUT PREJUDICE CONDITIONS

APPEAL NO. 10869 OF 1999

710 MOWBRAY ROAD, LANE COVE

CONDITIONS OF CONSENT

SCHEDULE 1(A)

DEFERRED COMMENCEMENT CONDITIONS

In accordance with Section 80A(3) of the Act this consent will not operate until the applicant has complied with the following conditions to the satisfaction of Council. Upon receipt of written information from the applicant indicating conditions in this schedule have been satisfactorily complied with and, if so, will nominate the effective date for the commencement of this consent.

TECHNICAL SERVICES REQUIREMENTS

1. Sediment and Erosion Control measures are to be adopted during construction to prevent building materials and loose soil entering Council’s stormwater system, bushland and water courses. An Erosion and Sediment Control Plan (ESCP) and a Stormwater Management Plan for the whole site, including stage 3, are to be prepared by a suitably qualified person and written approval obtained from Council. The applicant must lodge the ESCP and Stormwater Management Plan within 14 days of the date of this consent. The ESCP and Storm Water Management Plan submitted to Council must include a time table for the carrying out of the works required by those plans.

LANDSCAPE ISSUES

2. A landscape plan or plans showing proposed final ground levels, proposed retaining walls and levels, treatment of earth / sandstone embankments and adjoining areas of excavation are to be submitted to Council within 14 days of the date of this consent. All proposed retaining walls are to be shown in relation to retained trees and the proposed amended landscape design.

3. Landscape drawings LHA WD 6-14 are to be amended and resubmitted to Council to the Council’s satisfaction within 14 days of the date of this consent to:

i) Substitute Dietes grandiflora with at least two different types of Australian Natives having a similar appearance.

ii) Substitute Gleditsia spp, with Banksia integrifolia and one other Indigenous native species having a similar height and spread.

iii) Specify the species mix of the seed proposed for use in the Hydromulched

iv) Provide species names for all street trees;

v) ensure that tree no. 30 is retained and protected at all times (with the

excavation and retaining wall design being amended to ensure this outcome);

vi) ensure that the Area 3 Bush Regeneration area to the west of building 14A is be revegetated and where native plants occur, regenerated, in accordance with the Bushland Regeneration Plan approved by Council and prepared by Frank Gaspaire and in accordance with the conditions of consent of DA 1997/0847;

Landscape plans

· The Plans do not show the following information:

· The plans do not show or identify retaining walls or their detail.

· The plans do not show or identify the location of planter beds

· The plans also do not match up when placed together - especially the location and extent of cut.

Landscape Specifications

· The specifications do not take into account excavation into sandstone. There is therefore no soil substrate.

· Specification 3.02-200mm soil for planter beds - no detail or provision for drainage medium has been provided

· Specification 4.01 - paragraph 4 - “Mass planted areas requiring excavation and backfilling with approved planting mixtures shall be excavated to a depth of 300 mm below finished levels. Break subsoil to a further 100mm prior to placing planting soil.” 75mm for mulch must be taken away from this and effective planting soil depth is 275mm, which is insufficient for large trees.

· Specification 4.02 - No specific tree planting specification but 4.02 (tree and shrub planting in grassed areas) allows for “planting holes at least 450mm square and dug to a depth of 75mm more than the depth of the root ball”. This is totally insufficient in depth, volume and area for viable tree growth into sandstone.

· Specification 5.01 - Agricultural Lines - “Lay where required in accordance with good horticultural practice”. All areas excavated into sandstone will have to be drained, especially tree planting holes. No details or logistics have been provided in this regard.

General

· To accommodate viable planting there will have to be further major excavation into the sandstone to accommodate sufficient soil depths, areas and volumes. If so, amend drainage details will need to be provided.

Tree and Plant Location

The location of the following major trees is inappropriate.

· Eucalyptus citriodora (EC) located within 1 metre of eastern wall of building 17.

· Angophora costata (AC), Eucalyptus haemastoma (THE) and Eucalyptus citriodora (EC) plantings approximately 2.5 metres from buildings (and even closer to structures) on southern side of building 17.

· Angophora costata (AC), Eucalyptus haemastoma (THE) and Eucalyptus citriodora (EC) and Eucalyptus maculata (EM) plantings located between approximately 2 to 3.5 metres from buildings [balconies] on northern side of building 16. The middle Angophora is within 0.5 of a metre from a brick wall.

· Magnolia grandiflora (MG) plantings are located mass-planted in small courtyards and under balconies located on the north side of building 16. These are large trees.

· Acmena smithii (medium to large trees) are double planted within small courtyard areas located to the north of building 15A.

Dwg No LHA-WD-7

· The street trees to the north of building 14B (GSH-Gleditsia “Shademaster”) are planted over or very near the plenum around this building.

· The Elaeocarpus reticulatus (ER) and Acmena smithii (AS) to be planted above the cut to the east of building 14B will not achieve their potential as their cultural requirements (protected location, moist heavier soils and semi-shaded when young) will not be met.

· There is doubt of the establishment into excavated sandstone, particularly on steeper sections, of the balance of the Elaeocarpus reticulatus (ER) and Acmena smithii (AS) to be planted to the east and south of building 14B.

4. This landscaping plan is to be submitted by a suitably qualified landscaping or horticultural consultant who shall include the following information: -

ii. Details of all proposed surface treatments and method of mulching and weed control;

iii. Full details of finishes proposed in respect of all retaining walls and other hard surfaces within the landscape area, it being noted that a high quality low maintenance finish of attractive appearance is required (e.g. stone or brickwork).

iv. Details of any fittings or structures proposed to be installed within the landscaped area, including fences, screen walls, children’s playground equipment, seating, lighting, letterboxes, etc. it being noted that such should be designed as an integral part of the landscape scheme;

v. Details of sub-soil preparation, drainage and soil depths in all areas where landscaping is to be established over the concrete roof slab or subterranean parking basements (in this regard, a minimum soil depth of 300mm is required in such circumstances where grass only is proposed).

vi. Details of the location of the proposed service lines, including the extent of the proposed trenching and associated works.

5. A design for a pedestrian link path through the site to the Epping Road underpass, together with a timetable for construction of that path, shall be submitted to Council for their approval. Such design to make provision, if necessary, for the location of the detention basins B&C, while they are in place. The link must be designed as both a meandering ramp for easy access, and as steps and path. Lighting is to be provided along the pathway and included in the design. The design and timetable shall be submitted to Council within 28 days of the date of this consent and timetable

6. A design for an energy dissipator and scour protection for the discharge of stormwater from the stage 3 site into Council’s reserve from Pit A1-4 is to be submitted and written approval obtained from Council. Such design is to include channel lining for 50 metres from the headwall A1-5.

SCHEDULE 1(B)

CONDITIONS OF CONSENT

1. (a) Hours of work on the site shall be restricted to:

Monday - Friday 7.00am to 6.00pm

Saturday 7.00am to 4.30pm

Sunday and Public Holidays 8.00am to 2.00pm

with the Council retaining the right to serve notice to vary these working hours in response to any complaints received, and either amend the hours or revert to Council’s Standard Prescribed Hours if deemed necessary or desirable.

(b) THAT the use of hydraulic rock hammers, vehicles or items of machinery producing noise levels of more than 20dB(A) above background levels at any residential boundary be restricted to within the hours of 8.30am to 5.00pm, Monday to Friday.

(c) THAT the allowable construction noise limits are to be graduated in a time scale in accordance with the acoustic consultant’s recommendations and the Environmental Protection Authority guidelines as under:

(Reason: Health and amenity)

42. Compliance with all relevant requirements of Part 3.8.6 "Sound Insulation" of the Housing Provisions in respect to walls separating two or more dwellings.

(Reason: Preserve amenity)

43. During building operations temporary toilet facilities shall be provided in accordance with Clause 78I of the Environmental Planning and Assessment Regulation 1994. NOTE: Portable toilet facilities are not permitted to be placed on public areas without prior approval having been obtained from Council.

(Reason: Health and amenity)

44. The stairway shall be constructed in accordance with the relevant provisions of Part 3.9.1 of the Housing Provisions.

(Reason: Safety)

45. The provision of protective balustrade(s) complying with the provisions of Part 3.9.2 of the Housing Provisions are to be erected along the decks, balconies, stairways and ramps and have a minimum height of 1000mm.

(Reason: Safety)

46. The building/development must comply with the requirements of the Disability Discrimination Act (DDA).

It should be noted that this approval does not guarantee compliance with the DDA and the applicant/owner should investigate their liability under this Act.

(Reason: Access)

47. The car parking spaces are to be physically identified on site and maintained free of obstruction. Under no circumstances are these spaces to be used for the storage of goods or waste products.

(Reason: Amenity)

48. Upon completion of the building work or part a Fire Safety Certificate shall be furnished by the owner to Council, and the owner must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be forwarded to the Commissioner of New South Wales Fire Brigades, and must cause a further copy of

the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building in accordance with Clause 80E(7) of the Environmental Planning and Assessment Regulation 1994 in respect to each essential fire safety measure included in the Schedule attached to the approval.

(Reason: Safety)

49. The building or part thereof SHALL NOT BE OCCUPIED UNTIL AN INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE HAS BEEN ISSUED in respect of the building or part in accordance with Section 109M of the Environmental Planning and Assessment Act 1979.

(Reason: Safety)

50. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY, AN INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE will not be issued unless the Principal Certifying Authority has received a Fire Safety Certificate for the building or part.

(Reason: Safety)

51. Attention is directed to Clause 80GB of the Environmental Planning and Assessment Regulation 1994 regarding the submission of an Annual Fire Safety Statement in relation to each essential fire safety measure implemented in the building or on the land on which the building is situated.

(Reason: Safety)

52. Building materials, plant and equipment and builder’s waste, are not to be placed or stored at any time on Council’s footpath or roadway adjacent to building sites.

(Reason: Safety)

53. Rubbish skips or bins are not to be placed on Council’s footpath or roadway unless prior written approval has been granted by Council.

(Reason: Safety)

54. The apartment building shall be erected in Type A construction for a Class 2 & 7 building in accordance with Section C of the BCA.

(Reason: Fire resistance)

55. Entrance doorways to all sole occupancy units at each floor level of the apartment building shall be protected by self closing -/60/30 fire doors complying with AS 1905.1

(Reason: Fire resistance)

56. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate for all fire doors, in the form prescribed by AS 1905.1, shall be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Fire resistance)

57. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate from the ceiling fixer stating that the ceiling immediately below the roof has been erected so as to have a resistance to the incipient spread of fire to the space above itself of not less than 60 minutes shall be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Fire resistance)

58. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , the installer of the lift shall furnish a certificate to Council to the effect that C3.10 of the BCA has been fully complied with PRIOR TO THE ISSUE

OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Fire resistance)

59. Openings for services in the floor, walls and ceilings shall be fire stopped in accordance with C3.15 of the BCA. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate to this effect shall be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Fire resistance)

60. Doorways shall be protected in accordance with the provisions of C3.11 of the BCA where such door provides access from a sole occupancy unit, or a room not within a sole occupancy unit, to other specified parts of the building.

(Reason: Fire resistance)

61. Bollards or other suitable barriers shall be provided at the (discharge of) exits and where necessary suitable barriers must be provided to prevent vehicles from blocking exits, in accordance with the requirements of Clause D1.10 of the BCA.

(Reason: Access and egress)

62. Attention is directed to D2.7 of the BCA in respect of the electrical cupboards situated in the exit corridors and the like.

(Reason: Access and egress)

63. The stairway shall comply with the relevant provisions of D2.13 of the BCA.

(Reason: Access and egress)

64. The balustrade to any access path, balcony, landing or the like shall have a minimum height of 1m and any opening must not permit a 125 mm sphere to pass through it, as required by D2.16 of the BCA.

(Reason: Access and egress)

65. Handrails shall be provided along the side of the ramp or flight of stairs in accordance with D2.17 of the BCA.

(Reason: Access and egress)

66. Swinging doors in required exits or forming part of required exits shall be installed in accordance with D2.20 of the BCA.

(Reason: Access and egress)

67. All doors in a path of travel to an exit shall have a latch fitted to comply with D2.21 of the BCA including a door handle having a single hand downward action or pushing action.

(Reason: Access and egress)

68. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a warning sign complying with D2.23(b) of the BCA shall be clearly displayed on the doors identified in D2.23(a) of the BCA PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Access and egress)

69. The provision of "Offences Relating to Fire Exits" notices in a conspicuous position adjacent to, but not within the fire isolated stairway, passageway or ramp shall be provided and such notices shall be in or to the effect of Form 15B, Schedule 5 of the Environmental Planning and Assessment Regulation 1994.

(Reason: Access and egress)

70. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , certification that the floors/pedestrian surfaces have a slip resistant surface to comply with AS/NZS 3661.1-1993 and AS/NZS 3661.2-1994 as required by Clause 23 of Council’s DCP No. 14 Access and Mobility SHALL BE

SUBMITTED TO COUNCIL PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Access and egress)

71. The building shall be provided with access for people with disabilities as well as toilets and other facilities for people with disabilities to comply with Council’s DCP No. 14 and all the requirements of Part D3 and Part F2 of the BCA and the relevant provisions of AS 1428 and in particular :-

a) The required carparking space/s shall be identified on the floor and

behind the space for use for people with disabilities and a series of signs are to

be provided from the driveway entrance to indicate the location of the said

space.

b) At least one required stairway or ramp must have handrails on each side complying with Clause 9.3 of AS 1428.1.

c) The passenger lift shall be installed to comply with the requirements of AS 1735.12.

d) Suitable identification signs and/or symbols, as well as necessary directional

signs, incorporating the symbol for access for people with disabilities shall be

provided to comply with Clause 14 of AS 1428.1.

e) The step at the front door being reduced to nil at the threshold by the provision

of a short ramp to facilitate access for people with disabilities.

f) Attention is directed to Clause 7 of AS 1428.1 in respect of the clear circulation space required at doorways.

(Reason: Access and egress)

72. The finished floor at the front door is to be in accordance with the DDA and wherever possible flush with and on the same grade as the existing footpath to facilitate access for people with disabilities.

(Reason: Access and egress)

73. Hydrants complying with Clause E1.3 of the BCA are to be installed throughout the building. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , details regarding the location of the hydrants shall be

submitted to Council for approval PRIOR TO THEIR INSTALLATION.

A certificate is to be submitted PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE CERTIFYING THE INSTALLATION.

(Reason: Safety)

74. Hose reels complying with Clause E1.4 of the BCA shall be installed throughout the building. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , details regarding the location of the hose reels shall be submitted for approval PRIOR TO THEIR INSTALLATION .

A certificate is to be submitted PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE CERTIFYING THE INSTALLATION.

(Reason: Safety)

75. The hose reel cabinets shall be identified to comply with the relevant provisions of AS 2441. Where a fire hydrant is also located in the cabinet the identification is to comply with the relevant provisions of AS 2419.

(Reason: Safety)

76. A sprinkler system complying with Specification E1.5 of the BCA shall be installed throughout the carpark levels of the apartment building. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , details of the system, including certification are to be submitted to Council PRIOR TO ITS INSTALLATION.

Certification of the installation is to be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Safety)

77. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate in the form prescribed in AS 2118 shall be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE for the automatic sprinkler system/internal or external wall wetting sprinklers.

(Reason: Safety)

78. Provision of an automatic fire detection and alarm system complying with Specification E2.2a of the BCA. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate is to be submitted PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE CERTIFYING THE INSTALLATION.

(Reason: Safety)

79. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY, a warning sign conforming to the details and dimensions of E3.3 of the BCA shall be erected in a conspicuous position near every call button for the passenger lift PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Safety)

80. Emergency lighting shall be provided in accordance with E4.2 and E4.4 of the BCA.

(Reason: Safety)

81. Illuminated exit signs having white lettering on a green background being provided to comply with E4.8 of the BCA and located adjacent to every required exit door at a height of between 2m and 2.5m above floor level. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , directional exit signs shall be provided in positions to be determined on site during a joint inspection with the Principal Certifying Authority.

(Reason: Safety)

82. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , mechanical ventilation/air conditioning details for the apartment building shall be submitted to Council for consideration and approval PRIOR TO THE COMMENCEMENT OF BUILDING WORK.

(Reason: Health and amenity)

83. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , a certificate from a practising mechanical engineer to the effect that the ventilation system has been installed and performs in accordance with the provisions of Part F4 of the BCA and AS/NZ 3666.2 shall be submitted to Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Health and amenity)

84. Where natural ventilation cannot be provided, the carparking area is to be mechanically ventilated in accordance with AS 1668 Parts 1 and 2. The times of operation can be confined to the periods of 7.00 am to 9.30 am, and 5.00 pm to 7.00 pm.

A durable sign located in a conspicuous location adjacent to the vehicular entrance/exit of the carpark shall be installed advising of these hours of operation.

(Reason: Health and amenity)

85. The main vehicular entranceway to the basement carpark, the openings on the external walls of the carpark, and all internal partitioning (including all individual garage doors) shall be screened with wire mesh or similar material to permit the free movement of air throughout the carpark at all times.

(Reason: Health and amenity)

86. All rooms shall be provided with ventilation in accordance with the requirements of Section F of the BCA. Mechanical Ventilation in accordance with AS 1668 Parts 1 and 2 shall be installed where natural ventilation cannot be provided.

(Reason: Health and amenity)

87. The sound level output from the equipment installed for the operation of the building shall not exceed 5dBA above the ambient noise level measured at the boundary of the property. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY , certification of the level of sound output is to be provided by a Consultant approved by Council PRIOR TO THE ISSUE OF THE INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE.

(Reason: Amenity)

88. The effluent air from the mechanical exhaust system shall be discharged in a vertical direction above the roof in a position approved by PCA, where no nuisance will be created.

(Reason: Health and amenity)

89. All internal sanitary compartments are to be ventilated in accordance with AS 1668 and the ventilation system shall be wired so as to be automatically activated by the compartment lighting system.

(Reason: Health and amenity)

90. Compliance with all requirements of Part F5 “Noise Transmission and Insulation” of the BCA in respect to walls dividing sole occupancy units; separation of soil and waste pipes and sound insulation of floors between sole occupancy units.

(Reason: Health and amenity)

91. Floor wastes are to be provided to all wet areas or public spaces located at any level above a sole-occupancy unit.

(Reason: Health and amenity)

BUILDING CODE OF AUSTRALIA

ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 1994

FIRE SAFETY MEASURES

92. In order to ensure the safety of persons in the building in the event of an outbreak of fire and pursuant to powers contained in Environmental Planning and Assessment Regulation 1994, Council requires the following essential fire safety measures to be installed in the building. The fire safety measures are to be capable of functioning at a standard of performance in accordance with the requirements of the Building Code of Australia or as indicated in the schedule.

SCHEDULE OF FIRE SAFETY MEASURES

1. Automatic smoke detection and alarm systems: C3.4; E2.2; Spec E2.2a; AS 1670 -1995 and AS 1851.8-1987.

2. Automatic fire suppression systems: C2.7; C3.11; Spec Cl.1-3.5; Spec Cl.1-3.9; and AS 1851.3-1997.

3. Emergency lighting: E4.2; E4.4; and AS 2293.2-1995.

4. Exit Signs: E4.5; NSW E4.6; E4.8 and AS2293.2-1995.

5. Fire dampers: C3.13; C3.15; AS 1682.2-1990 and AS 1851.6-1997.

6. Fire doors: C2.12; C3.4; C3.8; C3.10; C3.11; C3.13; C3.15; Spec C3.4-2; and AS 1851.7-1984.

7. Fire hydrant systems: E1.3; AS 2419.1-1994 and AS 1851.4-1992.

8. Fire seals protecting openings in fire resisting components of the building: C2.5; C3.15.

9. Smoke detectors and heat detectors: E2.2; AS 1670.-1995 and AS 1851.8-1987.

10. Smoke dampers: AS 1682.2-1990 and AS 1851.6-1997.

EXTRA CONDITIONS

93. Provision being made on the site for the installation of a “kiosk” - type electricity substation, in the event that Energy Australia are desirous of installing same, and any such “kiosk” is to be positioned in accordance with Energy Australia’s requirements and to the satisfaction of the Development Planner. Should the installation of a “kiosk” be required, such is to be allowed for on the required landscape plan and is to be set back from the street frontage and screened by the provision of appropriate planting.

94. The developer is to be responsible for the provision of additional street trees in the footpath area. Such planting is to be carried out PRIOR to the completion of the work and the species, number and final location of trees is to be to the satisfaction of Willoughby City Council having regard to the Landscape Plans.

95. All declared noxious plants listed for Willoughby City Council Local Government area are to be removed from all areas of the development site.

96. No additional soil level changes, paths, etc. are to be made other than shown on the attached approved plans without the written consent of Council.

97. Applicant shall ensure that there are a sufficient number of groundcovers, planted at appropriate distances and depths to eliminate all bare mulched garden areas within twelve (12) months of completion of all landscaping works.

98. Applicant shall ensure all landscaping is completed to a professional standard, free of any hazards or unnecessary maintenance problems.

99. All trees planted in turfed areas are to be double staked and mulched with 75-100mm of decorative mulch which is to be contained by treated timber or brick garden edging firmly secured to the ground.

100. Garden beds and trees planted in dish drains or detention basins are to have the decorative mulch substituted for decorative gravel.

101. Unhealthy, spindly, dying or root girdled plants are not acceptable and are to be substituted with healthy, vigorous, well-shaped plants free of root girdling.

102. All plants are to be maintained in such a way so as to ensure at least 300mm of new growth in the first six (6) months following planting.

103. All soil in the completed landscaped area shall be free of compaction, free draining and have a suitable “soil Ph” that promotes healthy plant growth. Any surface water following rainfall or irrigation is to be able to be drained or absorbed by the soil within 8 hours of the rainfall/irrigation concluding.

104. All declared noxious plants listed for Willoughby City Council Local Government area are to be removed from all areas of the development site.

TREE PROTECTION

105. Willoughby City Council has adopted a Tree Preservation Order under the Environmental Planning & Assessment Act 1979. This Tree Preservation Order protects:

a) Any trees including shrubs, whether endemic, exotic or introduced species, which have:

ii. A height exceeding 4 metres, and/or

iii. A trunk girth over 600mm or 200mm in diameter, measured at 1 metre above the ground, and/or

iv. A branch canopy width exceeding 3 metres.

b) Any locally rare of threatened plant species (list available from Council).

This Tree Preservation Order applies within the Willoughby Local Government area and includes plants on this and adjoining sites and only those plants referred to in the condition below listing the plants approved for removal, are not to be retained and protected.

106. Approval is granted for the removal of the following trees and protected plants:

i. Any trees growing within the building footprints of the approved structures.

ii. Any declared noxious plant. The applicant, builder and all contractors are to ensure that all noxious plants are properly identified, controlled and removed on this site without injury or death of any protected plants.

iii. Any tree species listed in clause 4.2 of Council’s Tree Preservation Order

iv. Any of the plants recommended for removal in the Arborist report supplied by Danny B Draper and dated 3 June 1998 with the exception of trees numbered 70, 71, 80, 100.

107. The applicant shall accept all responsibility for the accuracy of the information provided to the accredited certifier for assessment. If any trees to be protected and retained which are threatened by building or construction work through accidental omission or unforeseen construction requirements, the approving authority is to be notified immediately before such work is commenced so a resolution of these problems can be authorised.

108. Any work carried out on or around the subject protected plants during construction and bond period shall comply with Australian Standard AS-4373-1996 “Pruning of Amenity Trees” and British Standing BS-5837:1991 ‘Guide for Trees in relation to Construction’.

109. A qualified Arborist shall be retained and regularly consulted throughout all clearing and construction work/the bond period to ensure protection of the trees retained and compliance of all pruning work with Australian Standard AS 4373-1996 “Pruning of Amenity Trees” and British Standard BS 5837:1991 “Guide for Trees in Relation to Construction”. In this regard a quarterly report will be supplied to the approving authority by the consultant Arborist, at no cost, on the overall health and condition of these protected trees and all maintenance works carried out on them, for the consideration by the approval authority. Should problems arise involving trees this Arborist should be consulted prior to contacting the approval authority.

110. The approving authority or a qualified Arborist acting as their representative, are to inspect all protective fencing and compliance with the conditions of consent PRIOR to commencement of all building work or clearing of the site and shall be carried out to the satisfaction of the accredited certifier. Additional inspections may be carried out without prior notice, throughout the construction and bond period

111. The required landscaped areas are under no circumstances to be used for the parking of motor vehicles, the storage of goods or waste materials or any other commercial or industrial purpose unless otherwise approved in the Development Consent. Suitable kerbing or barriers are to be constructed adjacent to separate any driveways, parking areas, etc. to the satisfaction of the accredited certifier.

112. Plantings of trees and shrubs over concrete slabs of basements, roofs, balconies, etc. shall have a minimum soil depth of 750mm. The detail of the soil mix to be used and subsoil drainage with suitable filters to prevent pollution to waterways, which shall connect to stormwater management systems, is to be supplied with any landscaping details.

BUSH PROTECTION

113. The entire regeneration area is to be fenced with sturdy 1.8m high protective fencing with provision for suitable sediment controls. The fence is to be erected prior to any development of the site and maintained for the life of the development’s progress. A buffer zone between boundary fence and development is to be established using silt fences. These works are to be inspected and approved by the accredited certifier or their nominee.

114. All protective/exclusion fencing is to be erected prior to commencement of the site bush regeneration works and is to remain in place until completion of all site works are completed.

115. All soil levels within the bush regeneration area are to be maintained at existing natural levels. Dumping of fill or excavations are prohibited in these areas unless stated otherwise in the Development Approval conditions.

116. All indigenous native plants in the agreed bush regeneration area are to be protected during construction from any deliberate or accidental damage. No access to the subject site will be available through these areas. A buffer zone between development site and the bushland is to be constructed using fencing.

117. Vegetation/weeds removed from the site during regeneration works will be disposed of properly and not dumped into adjoining sites.

118. All efforts will be made during the regeneration program to maintain native animal nesting and shelter sites or provide alternatives to these should this prove unavoidable. Any stressed, injured o orphaned animals are to be relocated by the NSW NPWS or their authorised representative.

119. The indigenous native trees, and other plants contained within the site, are to be retained on site until sufficient propagation material or viable seed is collected over a number of seasons to ensure the replacement indigenous native plants planted on the development site maintain the local genetic diversity, free of contamination and that guarantees the long term survival of their species. If necessary consideration should also be given to the collection of suitable propagation material within the catchment area following consultation with Council Officers.

120. Stormwater Management Controls

Stormwater and drainage from the development, both during the construction phase and on completion of the development, is to be chanelled to the Council’s existing stormwater system or appropriate water course, in accordance with detailed designs approved by the Council and in accordance with the guidelines related to sediment and erosion control contained in the document entitled “Management of Urban Stormwater: Soils and Constructions” (1998) prepared by the New South Wales Department of Housing, using the following criteria with minimal damage to surrounding bushland:

i. Construction of a rock lined sediment basin on development site to reduce sedimentation and erosion to bushland. Guidelines for construction are given in strategies for Stormwater management : The City of Willoughby (Morse McVey 1994).

ii. Channeling of stormwater constructed and lined with sandstone rocks removed from development site during excavation for approved works. Large rocks and detention ponds to be used for energy dissipation.

iii. Piping of stormwater to suitable watercourse or stormwater drain.

iv. Stormwater sedimentation plans must have the agreement of Council’s hydrological engineer and nominated bushland contractor.

120A. Sediment and erosion control measures on the site for each Stage of the development must be constructed and implemented in accordance with the Erosion and Sediment Control Plan and Stormwater Management Plan for the site required pursuant to deferred commencement condition 1 above.

121. A restriction on the use of the land and a positive covenant is to be created to protect the Approved Landscaping works (in stage 3) , any recognised species of tree planted as part of the approved landscaping works, any bushland or conservation zones, any approved bush regeneration or Management Plan associated with the approved landscaping works and remnant bushland, occurring within the site. The 88B Instrument required for such is to be created in association with the subdivision and is to be in accordance with the conditions of Development Consent. Provision is to be made for the Accredited Certifier to sign the document and it is to be appropriately noted on the Linen Plan of subdivision.

122. The 88B Instrument referred to in condition 121 above is to be lodged with the Council prior to that instrument being lodged at the Land Titles Office, and the contents of that instrument are to be to the Council’s satisfaction prior to release of the linen plan of subdivision. That section 88B instrument is then to be lodged at the Land Titles Office at the same time as the linen plan of subdivision is lodged.

123. The landscape designer is to supervise the construction of the approved Landscape design and any amendments to the design. On completion of the approved Landscape Drawing, the Landscape designer is to certify that it complies with the approved plans and specifications and any conditions of approval prior to final inspection by Council. Evidence of the log detailing the time date duration and details of the Landscape supervision is to be supplied with the certification.

124. The applicant is to construct a pedestrian link to Epping road underpass in accordance with the plans and timetable submitted pursuant to deferred commencement condition 7 above. The applicant is required to create a right of way through the site for public pedestrian access over the pathway from Mowbray Road to Epping Road. at no cost to Council. All adjustments to public utilities mains and services as a consequence of the development and associated construction works are to be at full cost to the applicant.

125. For all on-site detention (OSD) systems, including roof guttering and downpipe systems, a Positive Covenant and Restriction on Use of Land shall be required to be placed on the Certificate of Title in favour of Council created under Section 88B of the Conveyancing Act 1919 for newly created lots or by application to the Land Titles Office using FORM 97-11(R) for existing Titles under S588E of the Conveyancing Act prior to the release of the Linen Plan. The purpose of this is to ensure that the registered proprietor has care, control and maintenance obligations of the OSD system including the guttering and downpipe systems. A copy of Council’s draft terms for the above is available on request. (Reason: Legal requirement)

126. A plaque measuring no less than 400 mm x 200 mm shall be in some way permanently attached and prominently displayed within the immediate vicinity of the OSD device. This plaque shall advise occupiers of the property of the existence of the OSD device and also that the device is not in any way to be tampered with or changed without prior written consent of Willoughby City Council. (Reason: Legal requirement)

127. The constructed OSD installation must be appropriately certified by a suitably qualified and experienced consulting engineer (generally CP Eng. qualification) who must state that it complies with Council’s OSD policy, all relevant codes and standards and also that it is generally in accordance with the approved plans.

Upon completion of the OSD works, work-as-executed (WAE) plans shall be submitted by the consulting engineer/registered surveyor to verify that the volume of storage has been attained and that critical water and floor levels are in accordance with design requirements. Any changes or variations to the approved plans shall be highlighted in red .

Certification on the standard form for On-Site Detention Record of Installation issued by Willoughby City Council and WAE plans shall be submitted together with the Compliance Certificate. (Reason: Public record)

128. All Erosion control measures required shall be maintained in accordance with the approved ESCP and Stormwater Management Plan during the course of the construction works.

A revised ESP and Stormwater Management Plan is to be submitted to Council for approval at least two weeks prior to any proposed alteration to the approved ESCP. The applicant is to give 24 hours written notice to Council prior to discharge of ‘Final Filtered Water’ into RTA and Council stormwater systems.

The applicant is to submit monthly written reports from a suitably qualified person stating that all requirements of the approved ESCP have been met and maintained. The reports are to be submitted on the first day of each month until Council issues the Certificate of Occupation for Stage 3. (Reason: Legal requirement, Sediment and Erosion Control)

129. Application is to be made to Council’s Technical Services Division for the following approvals and permits as appropriate:

130. Compliance Certificates shall be issued by Accredited Certifiers certifying that all works where required by Council including construction of footpath, vehicular crossings, internal driveways, kerb and gutter, road works, drainage and OSD systems etc. have been carried out in accordance with Council policies and specifications upon completion of the works and prior to the issue of the Occupation Certificate . (Reason: Protection of public asset)

131. The applicant shall lodge a Security Deposit in the sum of $30,000 prior to the issue of the Development Consent against possible damage to Council’s property during the course of the building works. (Reason: Protection of public asset)

133. OCCUPATION AND SUBDIVISION BY STAGES

It is intended that this consent will operate so as to permit progressive occupancy of each building and/or stage of the project as they are completed such that the community title plan of subdivision for individual buildings or stages shall be released (in a form registerable at the Land Titles Office) concurrent with Council’s certificate for occupancy.

CITATION:	Billgergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94
PARTIES:	APPLICANT: Billbergia Pty Ltd (ACN 008 645 136) RESPONDENT Willoughby City Council
FILE NUMBER(S):	10869 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Development Application :- Class 1 appeal - multi-unit residential - SEPP 1 objections - bulk and scale - FSR - height - carparking - impacts on Bushland - s 94 contributiions - conditions of consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No.1 Willoughby Local Environmental Plan 1995
CASES CITED:	Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435 ; King and Campbell Pty Ltd v Hastings Shire Council [2000] NSWLEC 11; Lavender View Regency Pty Ltd v North Sydney Council (No.3) (1997) 95 LGERA 420; Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192; Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65
DATES OF HEARING:	15/02/00-18/02/00, 2/03/00
DATE OF JUDGMENT:	05/12/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Webster (Barrister) SOLICITORS Le Compte Davey RESPONDENT: Mr A Galasso (Barrister) SOLICITORS Mallesons Stephen Jaques