Castlefield Corner Pty Ltd v Waverley Council

[2020] NSWLEC 1208

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Castlefield Corner Pty Ltd v Waverley Council [2020] NSWLEC 1208
Hearing dates:	15 April 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court Orders: (1) The appeal is upheld. (2) Development Application No. 43/2019 for the demolition of the existing residential detached dwelling house and the partial demolition of two existing semi-detached dwelling houses and the construction of a three storey residential flat building that is reliant, in part, on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, over basement level car parking at 5, 7, and 9 Castlefield Street, Bondi is approved subject to the conditions in Annexure A. (3) The exhibits are returned with the exception of Exhibits A, B, 1 and 2.
Catchwords:	DEVELOPMENT APPLICATION – Demolition of an existing residential flat building and partial demolition of two semi-detached dwellings – construction of new residential flat building – parties agreed – public objections – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Waverley Local Environmental Plan 2012
Texts Cited:	AAAC Guideline for Apartment and Townhouse Acoustic Rating Apartment Design Guide Land and Environment Court of New South Wales, Practice Note Class 1 Development Appeals, (April 2018) Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Waverley Development Control Plan 2011
Category:	Principal judgment
Parties:	Castlefield Corner Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: M Seymour (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/157508
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Waverley Council (the Respondent) of the Applicant’s Development Application No. DA-43/2019. As amended the development application seeks consent for demolition of the existing semi-detached dwelling houses and construction of a three storey residential flat building over basement car parking. The residential flat building contains 11 units and relies, in part, on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The development is proposed at 5, 7 and 9 Castlefield Street, Waverley and includes the partial retention of the existing building fabric located on 5-7 Castlefield Street.

2. Following the termination of the conciliation, held pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act), the parties continued discussion on the form of development proposed for the site. On 18 March 2020, the Applicant, by way of notice of motion, was granted leave to rely on an amended set of architectural plans.

3. The Respondent is satisfied that the amended plans address the issues raised by them in the Statement of Facts and Contentions filed on 26 July 2019 (Exhibit 2).

4. The parties seek for the appeal to be resolved by the making of agreed orders. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy the parties agreed for the consent orders hearing to proceed via telephone and that no site visit was required. Evidence was also provided via telephone from a number of objectors who wished to address the Court and supplement their written objections.

5. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. The Practice Note - Class 1 Development Appeals (Practice Note) sets out the procedural requirements at para 99:

“Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.”

6. The Respondent has included in their bundle evidence of the provision of the information required by the Practice Note to the objectors. I am satisfied that the Respondent has given reasonable notice to all persons who objected of their intent to enter consent orders and the form of those orders.

Site and Locality

7. The site is made up of three lots legally known as Lot 2 DP 436858 (5 Castlefield Street, Bondi), Lot 1 DP 436858 (7 Castlefield Street, Bondi) and Lot 18 DP 4941 (9 Castlefield Street, Bondi). The site has a total area of 1024.5 m².

8. The site falls from south-west to north-west (diagonally from front to rear) and contains a detached single storey dwelling and two semi-detached single storey dwellings with trees located along the eastern (rear) boundary. There is an existing vehicle cross over on the northern side of the site providing vehicle access for the detached single dwelling.

9. The site is located within a heritage conservation area.

10. The site is also located within the R3 Medium Density Residential zone pursuant to Waverley Local Environmental Plan 2012 (LEP 2012).

11. Development adjoining the site consists of the following:

• To the south is 1 & 3 Castlefield Street, two semi-detached dwellings.

- 3 Castlefield Street has a first floor addition and shares its northern boundary with the subject site.

- 1 Castlefield is located on the corner of Castlefield Lane and is a semi-detached dwelling that is the pair to 3 Castlefield Street.

• To the north is 11 Castlefield Street, a residential flat building which presents as two storey to the street with four storeys at the rear.

• To the east is the rear of 44 Denham Street, a four storey residential flat building.

• To the west, on the opposite side of Castlefield Street is 4 Castlefield Street, a three storey residential flat building above at grade parking and 6 Castlefield Street, a two storey detached dwelling.

12. I am satisfied that on the basis of the material before me I am able to properly understand the context of the proposed development and the site in order to complete an assessment of the merits of the development application.

Planning Controls

13. State Environmental Planning Policy No 55—Remediation of Land applies. Clause 7(1)(a) of SEPP 55 requires the Consent Authority to consider whether land is contaminated. I accept the position of the parties that the site has a history of residential use and does not require further specific investigation and that the land is suitable for residential use.

14. The application is pursuant to SEPP ARH as in-fill affordable housing. SEPP ARH applies to the subject land as: residential flat buildings are a permissible use in the R3 Medium Density Residential Zone (cl 10(1) SEPP ARH); and the site meets the definition of being within an accessible area in the instrument. The subject site does not contain a heritage item.

15. Applying cl 13(2)(a)(ii) of SEPP ARH, the percentage of total floor area within the development required to be affordable rental housing is 41% to achieve the additional 0.41:1 floor space ratio (FSR) proposed. Under LEP 2012 the FSR applicable to the land is 0.6:1. The proposed development has a FSR of 1.01:1 and is compliant.

16. Units: G03, G04, G05, 103 and 201 (totalling 425 m²) are nominated for affordable housing (Exhibit J). The conditions proposed by the consent orders include a condition requiring these units to be used for the purposes of affordable housing, and be managed by a community housing provider, for 10 years as required by c 17 of SEPP ARH.

17. The proposed development complies with the ‘do not refuse’ standards listed at cl 14 of SEPP ARH.

18. The parties submit that the proposed development is consistent with the character of the local area. In determining this application I have taken into consideration whether the design of the development is compatible with the character of the local area as required by cl 16A of SEPP ARH and I am satisfied the development meets this requirement.

19. State Environmental Planning Policy 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the development. The amended application is accompanied by a design verification statement (Exhibit H) as required by cl 50 of the Environmental Planning and Assessment Regulation 2000.

20. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004applies to the proposed development. The amended development is accompanied by BASIX certificate number: 967635M_02 in compliance with the instrument.

21. LEP 2012 applies to the site. The proposed development is compliant with the principal development standards contained in LEP 2012.

22. Given the sites location within the Imperial Avenue Conservation Area (HCA), cl 5.10 of LEP 2012 applies. Clause 5.10(4) operates to require the Court, as a mandatory precondition to consent, to consider the effect of the proposed development on the heritage significance of the HCA. If there is a finding that there is a detrimental impact, the consent authority takes that impact into consideration in the overall merit assessment of the application. The Applicant has provided a heritage impact assessment in support of the application. On the basis of the agreed expert evidence, I am satisfied that the proposed development will not have a detrimental impact on the significance of the HCA.

23. The site is not mapped as acid sulfate soils land or flood affected or containing terrestrial biodiversity, as such cl 6.1, 6.3 and 6.4 of LEP 2012 respectively do not apply.

24. In determining this application I have taken into consideration the matters listed under cl 6.2: Earthworks in LEP 2012.

25. The development is also required to have regard to the applicable provisions of Waverley Development Control Plan 2011 (DCP 2011). Where relevant these provisions are referred to in consideration below.

Consideration

26. Subsequent to the termination of the conciliation and based on the amended plans and supporting documents relied on in this appeal, the parties agree that the contentions raised in the Statement of Facts and Contentions filed by the Respondent on 26 July 2019 and tendered as Exhibit 2, are satisfactorily resolved. Those contentions related to: the bulk, form and scale of the development, overdevelopment of the site, aesthetics/ building design and streetscape, setbacks, heritage, visual privacy, solar access, acoustics and the public interest.

27. As the parties agree that the contentions are resolved and there are no jurisdictional issues relating to the proposed development. The parties seek for the Court to grant consent to DA 43/2019 in line with the agreed orders filed.

28. Notwithstanding, the Council agrees to the grant of development consent, I am required to carry out an assessment under s 4.15 of the EPA Act, including consideration of any submissions made, to determine if it is lawful and appropriate for the Court to grant consent.

Public Submissions

29. The Court heard from six groups of objectors at the commencement of the hearing. In addition, the Respondent’s bundle includes a number of objections received in response to the notification of the Council’s intention to enter consent orders. I have read and considered all of this material. The objectors raise the following concerns with the proposed development:

• The FSR exceedance impacts the adjoining properties amenity and provides a bulk and scale of built form that is out of character. These impacts have not been resolved by the amended plans.

• Height appears to exceed 9.5m which is the maximum height.

• The size of the apartments proposed is excessive. Whilst the amended plans removed an apartment this floor area was redistributed and has not resulted in a reduction of the bulk of the building.

• The adjoining residential flat building will be impacted by the noise of the car stacker.

• Concern about the impacts of vibration during construction.

• Provision of excessive visitor parking has had the effect of increasing excavation.

• The development application does not include an acoustic report that considers the impacts of the construction phase of the development. Residents expressed concern that there is no proposed monitoring of noise or vibration during construction.

• Concern for the potential impacts to adjoining structures from the construction of the development. Residents expressed a need for any consent to be accompanied by conditions requiring dilapidation reports and to specifically nominate all the proximate properties.

• There are privacy impacts from the proposed balconies which create the potential for overlooking into rear yard of the adjoining flat building (to the east) and potentially into some units balconies. Residents also expressed concern in relation to noise being generated on these proposed balconies impacting on their amenity in the evening.

• The proposed development will result in an erosion of the character of the precinct.

• The additional new building which is proposed around the retained semi-detached dwelling is inconsistent with the federation streetscape and will degrade the heritage appeal.

• The potential health impacts of commencing construction during the COVID–19 pandemic. A resident expressed specific concern that Bondi had already been identified as a hot spot and increasing visitors to the locality may raise infection rates.

• Concern that insufficient green space is provided by the development. Further, the limited rear setback reduces the existing green corridor at the rear of the properties.

• Resident’s expressed concerns about the solar impact from the development to their outdoor space and rear yard in winter. In particular, the resident adjoining the subject site at 3 Castlefield Street described the loss of sunlight to their living area, rear deck and yard as a devastating impact that will arise from the development. They note that the Applicants solar diagrams indicate they will receive no sunlight after 10am in mid-winter to their living area. Further, they raise concern that the solar impact does not comply with Control 2.6(a) of Part C of DCP 2011 and that if the proposal complied with the predominant building line, their solar access would be maintained.

• That the lack of sufficient side setback to 3 Castlefield Street will create visual and acoustic privacy issues, provides an overbearing sense of proximity and will impact on existing district views from the properties master bedroom and living room. Further, the proximity of the proposed structure increases the risk of excavation and potential for structural damage. The resident notes the side setback appears non-compliant with the requirements of the Apartment Design Guide (ADG) under SEPP 65.

• The lack of rear setback, and failure to comply with the predominant rear setback, further reduces solar access to the rear yard of 3 Castlefield and the ambience of the space and its outlook (dominated by a new brick wall).

• The development proposed a gate in the boundary fence to provide access to an existing Right of Way (ROW). This is objected to. The resident notes they intend to extinguish this ROW and that access had not been sought in the initial development application.

• Concern that the proposed conditions do not require dilapidation reports or that set limits for construction noise and vibration. They seek for conditions to be applied and the properties listed for which dilapidation reports must be prepared.

• Due to the proximity of the proposed excavation to 3 Castlefield Street the resident is concerned that there is potential for underpinning of structure. The resident has sought and received engineering advice in this regard. They seek for specific conditions to be imposed on the consent to address this concern.

Expert Evidence

30. The Court was assisted by expert heritage evidence from Mr Paul Rappoport (for the Applicant) and Mr Colin Brady (for the Respondent). The heritage experts agree that there are no remaining heritage contentions that warrant the refusal of the application. Their reasoning can be summarised as:

• The scale of the proposed development is acceptable in the HCA as it presents to the street as 2-3 storeys and retains key sight lines between the subject property and adjoining residences.

• The development has been improved by amendments to the front entry and changes to the proposed planters which will allow substantial tree growth.

• The proposal has been amended to include a schedule of finishes which are referential and respectful of the existing finishes in the HCA. These finishes are acceptable "on the proviso that the new development must maintain finishes closely related to the face brick and terra cotta tile defining the conservation area and the streetscape" (emphasis added) (Exhibit F). The report also notes that roof tiles for the retained residences at 5 and 7 Castlefield are to be unglazed terra cotta Marseilles tile.

• The existing brick fencing to the street frontages of the properties at 5 and 7 Castlefield Street should be retained and the in a replicated form extend across the frontage of 9 Castlefield Street.

31. The agreements of the Heritage Experts are incorporated in the conditions of consent at Annexure A.

32. The Court was assisted by expert town planning evidence from Mr Anthony Rowan (for the Applicant) and Mr Matt O’Donnell (for the Respondent). The planning experts agree that there are no remaining contentions that warrant the refusal of the application. Their reasoning is summarised below.

Bulk and Scale

33. The previous concerns in relation to the buildings bulk and scale have been resolved as follows:

• The development has been reduced in scale on Level 2; has been setback further from the front boundary; has had side facing terrace areas to No.11 removed; and has provided an increased side southern boundary.

• The basement car park is setback appropriately from the southern side boundary.

• The central southern ground floor unit (G05) has improved amenity through the proposed increased front setback.

• The bulk and scale of the development is now acceptable, and the proposal is not an overdevelopment.

(Exhibit J)

Aesthetics

34. The experts are satisfied that this contention is addressed by the increased front setback, the provision of sufficient area to accommodate mature planting. Further, they are satisfied that ‘the modified density of the development can be accommodated with the streetscape setting’ (emphasis added) (Exhibit J).

Amenity

35. The experts agree that the modifications made by the Applicant in the amended architectural plans address the amenity concerns previously detailed by the Council in their contentions. In particular they note:

• The proposed windows oriented to the side boundaries are now required to have privacy screens to minimise overlooking and loss of privacy.

• The previous balconies that were oriented to the side boundary have been deleted.

• Side louvres have been incorporated to the north-facing windows, and terraces have been removed, overcoming any potential for cross-viewing to 11 Castlefield Street.

• The required ADG side and rear minimum boundary building separation distances are achieved, in accordance with Section 3F-1 of the ADG.

• With the additional planter treatments along the rear facing balconies in the development, there is no potential for downwards viewing to impact upon the internal amenity of the dwellings below in the development, or crossing viewing to No.44 Denham Street.

• The increases in side setback from the south, and removal of the external terrace areas, and balconies, to the north remove the perceived sense of enclosure.

• The adjustments to the rear setback provide an appropriate separation from development to the rear. There is no predominant rear setback control to adhere to under SEPP 65.

(Exhibit J)

36. The planning experts conclude in the joint report that: ‘The height satisfied the permitted height, based on survey level points.’ (emphasis added) (Exhibit J). The proposed development does not exceed the height standard in LEP 2012.

37. Following the oral evidence from the residents the planning experts were directed to undertake further joint conferencing on these and the written submission received on the consent orders. They were directed to provide their evidence on the concerns expressed. A supplementary joint report was tendered in the proceedings as Exhibit N.

38. The supplementary joint report states: ‘The planners have considered the issues raised in the objections, including those raised before to the Court at today’s date, and agree that they were satisfactorily considered and addressed in our earlier Position Paper.’ (emphasis added) (Exhibit N). Both experts maintained their position that the amended application warrants approval by the Court.

39. The planning experts provided some additional comments in the supplementary joint report to assist the Court in considering the objections of the public. In particular the planning experts note:

1. Whilst the parking exceeds the minimum requirement, there is no evident planning basis to reduce the number of parking spaces proposed as:

• The existing parking on-street on Castlefield Street is heavily utilised, therefore the provision of the additional on-site spaces will reduce demand on existing on-street spaces;

• all parking is out of sight, within a basement car park, such there is no external impact from its provision;

• removal of stacked spaces to meet the minimum requirement would not alter the bulk and scale of the development; and

• reliance upon on-street parking would still result in the same number of vehicle movements and add to on-street congestion.

2. The DCP provision for Landscaped Area requires 307m² landscaped area (30% of the site area). The development provides an area of 425m² (41.5% of the site area). The development complies.

3. The ADG requires 153.6m² (15% of the site area) for a deep soil zone of the site. The development provides 223m², or 21.8% of the site area. The development complies.

4. There is no predominant side setback control to adhere to under SEPP 65. The side setback of the development from 3 Castlefield Street is acceptable and reasonable as:

• The proposal has been modified to comply with the existing side setback of the existing retained dwelling of 5 Castlefield Street at ground floor level, The upper levels of the building have a side setback of up to 3m which is greater than what would be required for a first floor addition to the existing dwelling at 5 Castlefield Street if it were to be developed for such purposes;

• the Ground Floor Level will be wholly obscured from view by the existing boundary dividing fence with No.3;

• the Ground Floor Level of neighbouring No.3 is above the level of the proposed First Floor Level of the development;

• the wall height of the development above the fence line, over its upper two levels, is less than the height of the dwelling of neighbouring No.3;

• the dwelling at No.3 was approved with a side setback of 0.9m over all levels;

• the proposed development over its two upper levels provides a 3m setback, more than 3 times that which would be required for a dwelling house in the same location;

• the level of winter sunlight to No.3 to its living areas is considered acceptable. The modifications, and solar access diagrams, demonstrate that the existing levels of winter sunlight to the living rooms and private open space of No.3 meets the requirements of SEPP 65 regarding winter solar access (namely: a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter); and

• the site benefits from legal title to the right of way. The gate merely retains the current legal potential to use the right of way for access. Building a wall in front of the right of way would hinder potential to use the right of way. It is not intended in the DA to abandon the right of way.

(Exhibit N)

40. I accept the agreed evidence of the experts that the merit issues raised by the objectors have been appropriately considered. I am satisfied that on balance the application warrants approval, subject to more stringent consent conditions which I detail below.

Conditions

41. In their closing submission the Respondent accepted that further conditions were appropriate to address the concerns expressed by the objectors. The Applicant has agreed to the imposition of the following additional conditions:

“Condition 22: Noise Management Plan - Demolition, Excavation and Construction

A site specific noise management plan must be submitted to the Council for approval and comment prior to any works commencing on site and complied with during any construction works. The plan must be prepared by a suitably qualified consultant and must have input from a suitably qualified acoustic consultant. The plan must include but not be limited to the following:-

(a) Confirmation of the level of community consultation that has, is and will be undertaken with Building Managers/occupiers of the main adjoining noise sensitive properties likely to be most affected by site works and the operation of plant/machinery particularly during the demolition and excavation phases.

(b) Confirmation of noise, vibration and dust monitoring methodology that is to be undertaken during the main stages of work at neighbouring noise sensitive properties in order to keep complaints to a minimum and to ensure that noise from site works complies with Council's noise criteria.

(c) What course of action will be undertaken following receipt of a complaint concerning site noise, dust and vibration.

(d) Details of any noise mitigation measures that will be deployed on site to reduce noise impacts on the occupiers of neighbouring property to a minimum.

(e) What plant and equipment is to be used on site, the level of sound mitigation measures to be undertaken in each case and the criteria adopted in their selection taking into account the likely noise impacts on the occupiers of neighbouring property and other less intrusive technologies available.

Condition 25: Geotechnical Engineers Report

The Geotechnical Engineers Report shall be updated to provide details regarding the stability of the subject site and methodology to minimise the potential for damage to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.”

(Exhibit 3)

42. I accept these conditions are warranted. Further, in response to the submissions of the residents I have made the following amendments to the proposed consent conditions to ensure impacts from the development are acceptably managed. I am satisfied these amendments are warranted on three grounds: firstly to implement the agreement of the heritage experts; secondly given the age of the adjoining property and the depth of proposed excavation; and finally in response to resident’s concerns about the operation of the proposed plant. The amendments are noted below:

• Amended Condition 2: General Modifications:

“…

(b) any roof tiles for the retained residences at 5 and 7 Castlefield are to be unglazed terra cotta Marseilles tile.

(c) The existing brick fencing to the street frontages of the properties at 5 and 7 Castlefield Street should be retained and in a replicated form extend across the frontage of 9 Castlefield Street.”

• Amended Condition 24: Details of Bulk Excavation, Shoring or Pile Construction

“A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of any bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works.

The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of any Construction Certificate or the commencement of demolition on site.

The report must specifically address how the risk of excavation in proximity of 3 Castlefield Street is to be managed to ensure protection and support for that property during excavation works.

Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.”

• Amended Condition 51: Dilapidation Reports

“Dilapidation surveys must be conducted and dilapidation reports prepared by a practising professional engineer (structural) of all buildings, (both internal and external), including ancillary structures located on land adjoining the site and of such further buildings located within the likely “zone of influence” of any excavation, dewatering and/or construction induced vibration. The survey must identify which properties are within the likely 'zone of influence'. At a minimum the dilapidation report must include the structures on all private properties whose title boundary abuts the site.

The dilapidation reports must be completed and submitted to Council and the Principal Certifying Authority with or prior to the Notice of Commencement and prior to the commencement of any development work. The adjoining building owner(s) must be given a copy of the dilapidation report for their building(s) prior to the commencement of any work.

Please note the following:

(a) The dilapidation report will be made available to affected property owners on request and may be used by them in the event of a dispute relating to damage allegedly due to the carrying out of the development.

(b) This condition cannot prevent neighbouring buildings being damaged by the carrying out of the development.

(c) Council will not be held responsible for any damage which may be caused to adjoining buildings as a consequence of the development being carried out.

(d) Council will not become directly involved in disputes between the Developer, its contractors and the owners of neighbouring buildings.

(e) In the event that access for undertaking the dilapidation survey is denied the applicant is to demonstrate in writing to the satisfaction of the Council that all reasonable steps were taken to obtain access to the adjoining property. The dilapidation report will need to be based on a survey of what can be observed externally.”

• Amended Condition 104 and 105: Mechanical Plant

“104. Car Stacker Maintenance

The car stacker including all plant and equipment shall be regularly maintained by a suitably qualified expert to ensure that it remains effective and compliant with Condition 105.

105. Noise - Mechanical Plant

Noise associated with mechanical plant shall not give rise to any one or more of the following:

(a) Transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy.

(b) A sound pressure level at any affected property that exceeds the background (LA90, 15 minute) noise level by more than 5dB(A). The background noise level must be measured in the absence of noise emitted from the use. The source noise level must be assessed as a LAeq, 15 minute.

(c) Notwithstanding compliance with (a) and (b) above, the noise from mechanical plant associated with the premises must not be audible in any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am.

(d) A Certificate is to be submitted at the completion of all work and prior to the issue of an Occupation Certificate, from a suitably qualified Acoustic Engineer. The Certificate is to certify all plant and equipment complies with the terms of approval in relation to noise.”

43. These amendments have been incorporated in the consent conditions at Annexure A.

44. In their closing arguments the Applicant objected to the requirement in proposed Condition 106 for a “Noise Attenuation Certificate” to be provided prior to the issue of an Occupation Certificate. I have considered Mr Seymour’s submissions in this regard but I am persuaded that the condition is warranted and will provide certainty to future occupiers of the premises that the apartments, as completed, have been tested and comply with the 5 Star Rating under the AAAC Guideline for Apartment and Townhouse Acoustic Rating. On this basis I have applied the conditions in the form sought by the Respondent.

Outcome of the appeal

45. Notwithstanding the parties agreement to Consent Orders in determining this matter I have carefully considered the evidence and objections, the submissions and the documents tendered in the proceedings. Having carefully considered the experts report and the public submissions, I am satisfied in my evaluation under s 4.15 of the Act that the amended proposal warrants approval.

46. In undertaking the assessment of the application I have considered the effect of the proposed development on the heritage significance of the HCA in accordance with cl. 5.10(4) of LEP 2012. I am satisfied that the proposed development will not have a detrimental impact on the significance of the HCA.

47. The Practice Note requires: evidence that the approval is lawful and appropriate; satisfaction that any objections have been properly taken into account; and confirmation that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly consent is granted to the development in accordance with the consent orders signed by the parties and subject to the conditions of consent annexed to this judgment.

48. By consent the Court orders that:

1. The appeal is upheld.

2. Development Application No. 43/2019 for the demolition of the existing residential detached dwelling house and the partial demolition of two existing semi-detached dwelling houses and the construction of a three storey residential flat building that is reliant, in part, on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, over basement level car parking at 5, 7, and 9 Castlefield Street, Bondi is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits A, B, 1 and 2.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (319 KB)

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Amendments

08 May 2020 - Correction to Coversheet - No substantive change to the Judgment

Decision last updated: 08 May 2020