Carroll Properties Pty Ltd v North Sydney Council - [2004] NSWLEC 42

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Carroll Properties Pty Ltd v North Sydney Council [2004] NSWLEC 42 revised - 8/04/2004

PARTIES:
APPLICANT
Carroll Properties Pty Ltd
RESPONDENT
North Sydney Council

FILE NUMBER(S): 11301 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Refusal - Construction of a gravel car space including driveway entry - streetscape - tree preservation - landscaped area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 as amended
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002
State Environmental Planning Policy No. 1

CASES CITED:

DATES OF HEARING: 30/01/2004

EX TEMPORE
JUDGMENT DATE : 01/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Goldsmith, agent/advocate
RESPONDENT
Mr A Panuccio, solicitor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11301 of 2003
Hoffman C 30 January 2004 Carroll Properties Pty Ltd
Applicant
v North Sydney Council
Respondent Judgment

1. This was a class 1 appeal No. 11301 of 2003 between Carroll Properties Pty Ltd and North Sydney Council regarding refusal of car space in the front setback of No. 50 Young Street, North Cremorne.

2. The site had a pleasant old house which was to be retained. It was well setback from the street had two large trees in the front yard, a lawn, curved stone pathway and picket fence. The picket fence was to be replaced with a new picket fence to match one on No. 48 next door.

3. There was 10.6 m frontage that appeared as 13 m wide due to a landscape pedestrian access along that side to a house on the rear lane. Number 48 had a carport in the front setback with a narrow planter strip on the common boundary with No. 50.

4. The proposed car space was immediately beside that. This had the advantage of the two combined footpath crossings taking between them only one car space from the street parking. There was high demand 24 hours a day due to commuters, existing medium density development, existing old flats opposite the site and proximity to the shops, commercial uses and restaurants at Neutral Bay on Military Road about 200 m away.

5. The on site hearing was attended by:

6. The proposal had changed from the original development application in order to retain a mature Evergreen Alder Tree near the end of the car space. Instead of being excavated, the car space was to be in porus pavers at natural ground level, and there was to be a wheel stop to keep car tyres off the tree roots. Council was satisfied the tree roots would survive. The gate to the car space at the front boundary was to be a picket fence panel that would slide sideways and not obstruct the footpath. The amended issues in the case were:

North Sydney Local Environmental Plan

State Environmental Policy No. 1 Development Standards

SEPP 1

North Sydney Development Control Plan 2002

7. At the time of the hearing Issue 5 was resolved satisfactorily as previously mentioned.

8. The two key issues were: the streetscape impact and the SEPP 1 objection to the required landscaped area.

9. Dealing with the landscaped area, the proposal would reduce it to 46.14% of the site area when 50% was required. The consideration of SEPP 1 objection must look at the purpose of the objectives of the landscaped area. The respondent said the proposal would not achieve objectives in cl 20(1)(a), (b) and (c) of the North Sydney Local Environmental Plan 2001.

10. In regard to the characteristic landscape and streetscape the Court has concluded the subject property is perhaps the best example of a street front landscaped area in Young Street between Gerard Street and Sutherland Street, which is the section the parties agreed was the applicable streetscape. The present old house was perhaps Queen Anne or Federation Transition style. It sat nicely between the two trees and lawns and behind its picket fence.

11. The rest of the street was mixed old and new development with garages and carports in the front setback, high masonry fences at the street in some cases and visible front gardens in other cases. There were quite a few trees and shrubs in other front gardens but none as pleasant as the subject site.

12. When one looks at the Development Control Plan 2002 (DCP) and the Area Character Statements 2002, the latter had little to say that was adverse to this application. The North Sydney Cremorne Planning Area of the DCP, in the “Waters Neighbourhood” where the site was, said only that parking should not adversely affect the built form and quality of the residential streets.

13. The proposed car space would not be seen. It was at ground level behind the picket fence and the gate. When a car was in it, one would be aware, but the car would be partly screened by the fence and from uphill by the carport of No. 48. The proposal could not be said to affect the quality of streetscape sufficient for refusal.

14. In regard to the Local Environmental Plan cl 20, it seemed in regard to (a), the site and setting, even with the car space the street presentation of No. 50 would be superior to the characteristic landscape and streetscape existing. In regard to (b), the front yard area would remain as a space for the enjoyment of the occupants of the house. The clause applied to private open space, which the front yard was not. So the clause does not really apply. Even with the car space, the front garden would benefit the public domain with its pleasant appearance from the street. In regard to (c) the question of providing a 1.5 m planter strip alongside No. 48 was considered. On its side of the fence No. 48 had a planter strip and it contained a camphor laurel tree. The carport at No. 48 was most noticeable from the street. A ground level car space on the other side of the fence would be almost unnoticed. The applicant wanted to grow a creeper vine on the fence, which will give a green separation, and this was included in the amended draft conditions.

15. To move the car space over 1.5 m to provide a planter strip would take more space from the major portion of the front yard. Also it would mean the removal of the present curved stone pathway and other existing shrubs on the front boundary. There appeared to be little to be gained with the 1.5 m side boundary buffer. The camphor laurel tree and the Evergreen Alder created all the visual separation between No. 48 and No. 50 that might be wanted.

16. These findings on the objectives of landscaped area provisions have prompted the Court to uphold the State Environmental Planning Policy No. 1 objection, and the previous discussion of those objectives resolved Issues 1, 2, 3 and 4 in favour the applicant.

17. The parties had agreed on draft conditions including the replacement of the juvenile street tree that would have to be moved for the footpath crossing. Amended plans would need to be provided and specifications for them included. Overall the Court has decided there was nothing sufficient for refusal of the proposal.

18. Therefore the Orders of the Court are:

1 The appeal is upheld.
2 Consent is granted to an open car space at natural ground slope, and related new picket fence sliding gate, footpath crossing and other associated works at No. 50 Young Street, North Cremorne, in accordance with the plans in Exhibit C as amended by, and in accordance with the conditions in Annexure A hereto.
3 Annexure A shall comprise the annotated and combined Exhibits 6, 9 and A.
4 The exhibits are returned to the parties except Exhibits 6, 8, 9, A and C.

Appeal No: 11301 of 2003

Conditions of Development Consent

Annexure A

Carroll Properties Pty Ltd v North Sydney Council

For an open car space at natural ground slope, and related new picket fence sliding gate, footpath crossing and associated works at 50 Young Street, Cremorne

A. Conditions that Identify Approved Plans

Development in Accordance with Plans
A1. The development being carried out in accordance with drawing numbered 3084-01, dated May 2003, drawn by Back & Riggs Architects and received by Council on 8 July 2003, except where amended by the following conditions. These conditions require an amended design without the excavation of the car space proposed in the above drawings. See inter alia Conditions C11, C12, E3, and E4.
(Reason: Statutory)
Plans on Site
A2. A copy of the approved plans as amended by these conditions and specifications and documents (including the Construction Certificate if required for the work incorporating certification of conditions of approval) certification shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority.

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance)

C. Conditions that Require Subsidiary Matters to be Completed Prior to Issue of a Construction Certificate

Damage to Public Infrastructure
C1. The applicant shall bear the cost of all restoration works to Council’s property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property before commencement of the development. A dilapidation survey of Council’s assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the submission of an application forissuing of any Construction Certificate.

Note: This documentation will be used to resolve any dispute over damage to infrastructure. It is in the applicant’s interest for it to be as full and detailed as possible.

Design and Survey for Public Infrastructure
C2. The applicant shall engage an appropriately qualified person to undertake the survey, design and preparation of plans for all works located within Council’s property or all works that revert to Council’s care and control upon completion of the development. The design plans are to be certified by an independent appropriately qualified and practising civil engineer to confirm compliance with appropriate Australian Standards prior to the issue of a Construction Certificate.

(Reason: To ensure the provision of public infrastructure of an appropriate standard, and record keeping purposes)

(a) The vehicular access way shall be designed to comply with AS 2890.1 to ensure that a B85 vehicle will not scrape/strike the surface of the carriageway, layback, vehicular crossing or garage floor.

(b) The width of the vehicular layback shall be 3.5 metres (including the wings).

Bond for Engineering Construction Works – (Kerb and Gutter, Footpaths)
C4. A Bond of $2,000 shall be deposited with Council against any damage or failure to complete to the relevant specification the construction of kerb and gutter and footpath paving works prior to the issue of any Construction Certificate. (See schedule).

(Reason: To ensure appropriate security for works on public land and an appropriate quality for new Safety and Statutorypublic infrastructure)

Infrastructure Specification and Vehicular Access Application Guidelines and Specification

(i) Longitudinal section along the extremities and centre-line of each driveway/access ramp at a scale of 1:50.

(ii) Sections to be taken from the centre-line of the roadway through to the parking area itself and shall include all changes of grade both existing and proposed.

(iii) The sections shall show all relevant levels and grades (both existing and proposed) including those levels stipulated as boundary levels.

(v) A longitudinal section along the gutter line showing how it is intended to blend the vehicular crossing into the existing kerb and gutter.

(vi) All details of internal ramps between parking levels.

All details are to be certified by an appropriately qualified and practising Civil Engineer, as complying with Australian Standard AS 2890.1, Parking Facilities and Council’s standard specifications.

Porous paving
C7. The proposed (off street car parking spaces/paving) shall be paved with porous materials to allow stormwater infiltration to the substrate. Details demonstrating compliance are to be submitted with the Construction Certificate.

Designated Tree Bond Within Site
C8. A Security Bond of $2,000 for protection of trees within the subject property shall be deposited with Council prior to the issue of a Construction Certificate. (See schedule below).

If any tree is removed or damaged, Council shall deduct from this Bond the reasonable cost of replacement with a tree of the same species and to the samea similar stage of growth it would have attained at the completion of the work.

In the case of any tree which cannot be replaced with a similar specimen, the Security Bond for that tree will be forfeited to Council.

SCHEDULE

(Reason: Protection of existing environment public infrastructure, community assets and significant trees)

Security Bond Schedule
C9. All fees and security bonds in accordance with the schedule below must be paid or in place prior to the lodgement of any application forissue of the required Construction Certificate:-

SECURITY BOND SCHEDULE
50 Young Street, Cremorne
DEVELOPMENT APPLICATION NO. 344/03

SECURITY BONDSAMOUNT $

Engineering Construction Bond
Tree Damage Bond2,000.00

2,000.00

TOTAL BONDS$4,000.00

(Reason: Compliance with the development consent)

Bonds
C10. Council will accept a bank guarantee for the purpose of any security bond imposed by these conditions of consent. Such bank guarantee shall be in a form acceptable to the Council and shall be in place prior to the issuing of any Construction Certificate and shall remain in place until the submission of the certificate required prior to the occupancy of the completed works.

(Reason: Information, Protection of infrastructure and the environment)

Carpark Design

C11. New Architectural Drawings be prepared reflecting an Amended Proposal (Proposed Open Carspace, 50 Young Street, Cremorne) to include a section indicating paving design and materials to be used and a gradient of 1:11 and a wheelstop 100 mm clear above ground positioned at 4.7 m from the front boundary.

(Reason: To protect Evergreen Alder tree)

D. Conditions That Must Be Addressed Prior To Any Commencement

Protection of Trees During Works
D1. All trees which are to be retained as a requirement of development consent, shall be maintained and protected during demolition, excavation and construction on the site. Protection methods shall be provided to the Principal Certifying Authority by an appropriately qualified person prior to commencement of any works on the site.

(Reason: To ensure compliance with the requirement to retain significant planting on the site.)

Appropriate fencing or barricades, not less than the distance shown in the schedule hereunder, shall be installed to the satisfaction of the Principal Certifying Authority prior to demolition or commencement of any building works and maintained for the duration of the works:-

Schedule
Description of Tree Distance

(Reason: To protect the trees to be retained on the site during construction works)

Excavation/Demolition
D3. No demolition or excavation shall be carried out until a Construction Certificate has been issued.

Inspection Fees
D4. Where Council is acting as the Principal Certifying Authority and where an inspection of building, civil or landscape work is required by these conditions, inspection fees and component certification fees must be paid to Council before Council will undertake any inspections. These fees may be paid at the time of submission of the required Notice of Commencement of works (Form 7). This condition applies regardless of whether a Certificate fee is also payable.

NOTE : The submission of a Notice of Commencement of works form ‘Form 7’ to Council at least two (2) days prior commencing works is a statutory requirement prior to the commencement of any works on site.

(Reason: Information with Section 608 (6) of the Local Government Act 1993)

Cigarette Butt Receptacle – Residential

(Reason: To ensure adequate provision is made for builders’ waste)

Note: Applications for hoarding permits, vehicular crossings etc will require evidence of insurance upon lodgement of the application.

E.

Conditions that Must be Complied With During Demolition and Building Work

Progress Inspections

Notes

1. Where North Sydney Council is acting as the Principal Certifying Authority for the project, notice is to be given by telephone to a Planning and Development Services Administration Officer and an appointment made for the relevant inspection. Failure to advise Council at the stages of construction identified above will result in fines being imposed.

Final Compliance Certificate
E2. Within seven (7) days of completion of the building works and prior to occupation or the issue of an Occupation Certificate a Certificate of Compliance under Section 109C (1) (a) of the Environmental Planning and Assessment Act 1979 must be provided by the Principal Certifying Authority. This Compliance Certificate must certify that the completed work complies with the relevant Plans and Specifications and with the following conditions of this development consent: F1, H1-H5.

Tree Protection

E3. The existing Evergreen Alder, Alnus jorullensis be retained and monitored during construction by a qualified arborist and reports before, during and after construction to be provided to the Applicant and the PCA (other/Council).

E4. The surface roots within 2.0 metre radius within the proposed carspace be exposed and highlighted. No roots greater than 50 mm to be cut within a 2.0 m radius of the centre of the tree. The finished levels of the permeable paving to be designed to retain all the roots greater than 50 mm within a 2 m radius of the centre of the tree. Finished level closest to the tree to be approximately 68.40 as seen on the survey plan by Kevin Brown and Associates Pty Ltd dated 26 May 2001 Ref: S-16106 in Exhibit C of this appeal.

The permeable paving should incorporate a suitable brick paver with minimum 3 mm gap or eco-loc type paver with regular sand/gravel filled gaps. The paver shall be laid on a gap-graded sand/gravel bedding layer with an underlying robust geofabric or geogrid to structural engineer's specification. Only hand removal of the existing turf layer and hand compaction of the underlying ground shall precede the paving. No cement or lime products shall be used in the subgrade preparation.

F. Operational Conditions imposed under EP&A Act and Regulations and other relevant Legislation

Building Code of Australia
F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(Reason: Prescribed - Statutory)

Home Building Act
F2. (1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority for the development to which the work relates:

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

(i) has been informed in writing of the licensee’s name and contractor licence number, and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

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

(i) has been informed in writing of the person’s name and owner-builder permit number, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

Note : The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.

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

(Reason: Prescribed - Statutory)

(3) Demolition work must be undertaken in accordance with the provisions of AS2601- Demolition of Structures.

(Reason: To ensure that work is undertaken in a professional and responsible manner and protect adjoining property and persons from potential damage)

Support for Neighbouring Buildings
F5. (1) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building, fence or ground level on an adjoining allotment of land, the person causing the excavation to be made:-

(a) must preserve and protect the building from damage;

(b) if necessary, must underpin and support the adjoining building in an approved manner; and

(c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

(2) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

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

(Reason: Prescribed - StatutoryTo ensure adjoining owner’s property rights are protected and protect adjoining properties from potential damage)

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

(b) (b) showing the name of the principal contractor )or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and.

(3) This condition does not apply to :

(Reason: Statutory requirement)

(2) Each toilet provided:

(a) must be a standard flushing toilet, and

(b) must be connected:

(i) to a public sewer; or

(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

(3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) In this clause:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Regulation.

approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

(Reason: Prescribed -To ensure adequate facilities are provided for workers on the site)

H. Conditions that Must be Complied with Prior to Final Completion

Certification- Civil Works
H1. An appropriately qualified and practicing Civil Engineer appropriately qualified person shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with thise consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.

(Reason: Compliance with the Consent )

Damage to Adjoining Properties
H2. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights and the need for owner’s permission must be observed at all times, including the entering onto land for the purpose of undertaking works. Where damage occurs to adjoining property all necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the occupation of the development or issue of a buildingan Occupation Ccertificate.

Disposal Information
H3. Upon completion of works and prior to occupation, the person entitled to act on this consent shall provide to Council the following information;

(a) the total tonnage of all waste and excavated material disposed of from the site, and

Such information shall be categorised in accordance with the forgoing and is required for waste research purposes.

(Reason: To assist in the collection of data for research purposes related to environmental management)

Utility Services
H4. All utility services shall be adjusted, to the correct levels and/or location/s required by this consent, prior to final completion and the issue of any occupation certificate.

Required Tree Planting
H5. Trees in accordance with the schedule hereunder shall be planted in Council’s nature strip/footpath prior to the issue of the final compliance certificate required on completion of works:-
Schedule

Tree Species	Location	Pot Size
Banksia serrata	Approximately 1m north of vehicle crossing, within grass verge	45 litre

The installation of such trees, their current health and their prospects for future survival shall be certified upon completion by an appropriately qualified horticulturalist.

Landscaping

(Reason To enhance landscape screening at the side boundary)

I. On-going Conditions that Must be Complied with at All Times

No Commercial Use

Restriction on Parking
I1. The parking space shall be used only for the parking of vehicles owned or used by residents of this dwelling, or visitors to the dwelling.

(Reason: To ensure car space used only in association with this dwelling)

Car Space Use

I2. No cars are to be parked at any time so as to protrude into/over the road reserve. The maximum size of the vehicle that may be accommodated with this space is a B85 vehicle.

(Reason: To ensure safety of the footpath.)

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Citations

Carroll Properties Pty Ltd v North Sydney Council [2004] NSWLEC 42

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CITATION:	Carroll Properties Pty Ltd v North Sydney Council [2004] NSWLEC 42 revised - 8/04/2004
PARTIES:	APPLICANT Carroll Properties Pty Ltd RESPONDENT North Sydney Council
FILE NUMBER(S):	11301 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Refusal - Construction of a gravel car space including driveway entry - streetscape - tree preservation - landscaped area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 as amended North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 State Environmental Planning Policy No. 1
CASES CITED:
DATES OF HEARING:	30/01/2004
EX TEMPORE JUDGMENT DATE :	01/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Goldsmith, agent/advocate RESPONDENT Mr A Panuccio, solicitor