CSA Architects Pty Limited v Woollahra Council - [2009] NSWLEC 1054

Land and Environment Court

of New South Wales

CITATION: CSA Architects Pty Limited v Woollahra Council [2009] NSWLEC 1054

PARTIES:
APPLICANT
CSA Architects Pty Limited
RESPONDENT
Woollahra Council

FILE NUMBER(S): 11119 of 2008

CORAM: Murrell C

KEY ISSUES: SECTION 97 APPEAL :- Development Application for demolition and consolidation of two lots and construction of Units, basement parking, swimming pools, landscaping and strata title.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1
Woollahra Local Environmental Plan 1995
Woollahra Development Control Plan 2003

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 29/01/2009

DATE OF JUDGMENT:
30 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
Instructed by John Lloyd and Co
RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 January 2009
11119 of 2008 CSA Architects Pty Limited v Woollahra Council

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

JUDGMENT

1 This is an appeal under s 97 against Woollahra Council’s imposition of conditions on a development application at the property known as 45-47 Spencer Street, Rose Bay. The proposal is: for the demolition of two dwellings which are currently on two separate titles; consolidation of the two lots, the erection of four 4 bedroom units, part two storey and part three storey with basement parking for nine vehicles, two swimming pools in a cental courtyard, landscaping and the strata titling of the proposed development.

2 By way of background. The appeal was originally lodged when the matter was a deemed refusal. Council subsequently granted consent and the applicant continued the appeal on the basis of the conditions that were imposed by the council which, in summary, required the proposal to be amended for all intents and purposes to generally comply with the 0.75 to 1 floor space ratio contained in council’s Local Environmental Plan. It is noted that there would not be full compliance as full compliance would require the deletion of some 49 square metres from the proposed development. The condition appealed has the effect of reducing the FSR by some 44.7 equating to an FSR of 0.753:1.

3 The council contends that the conditions as imposed by the council should be retained because the proposed development is excessive in its floor space and without the inclusion of the condition the proposed development would not have been approved.

4 The Court heard evidence for the respondent council from Eleanor Smith, a senior assessment officer with the council. On behalf of the applicant evidence was given by Mr Anthony Betros, a consultant town planner.

5 The site located on the eastern side of Spencer Street is rectangular in shape, yielding an area of some 1,235 square metres. The western frontage to Spencer Street is 25 metres and the boundary length is 26 metres and the rear boundary is some 30 metres. The northern side boundary has a length of 52 metres and the southern side boundary some 49 metres. The area is one that can be described as a streetscape undergoing change with a number of multi-unit developments built in approximately the last decade or thereabouts. As such it is in transition from what was previously single dwelling houses generally of single or two storeys.

6 The site and environs is as described in the council officer’s report.

7 The site is in the Rose Bay Precinct and is zoned Residential 2(b). To the north is a two storey dwelling house and to the south two storey dual occupancy building. To the west at 624, 626 and 628 Old South Head Road there are a number of one and two storey developments. The locality is characterised by a mix of dwelling houses and residential flat buildings of various architectural styles.

8 The Court met on site and had the opportunity of viewing the site and understanding the streetscape and the development within the the context of the area.

9 It is noted that under the Woollahra Local Environmental Plan 1995 there are a number of aims and objectives. More relevant ones to this development application are:

10 The objectives of the plan in relation to residential development include:

to encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations; and to encourage and promote sustainable development by extending the use of existing and new residential buildings through the provision of fully accessible and adaptable housing requirements.

11 The LEP contains a provision for definition and interpretation in for the ‘notes’ in the plans and the explanatory notes do not form part of the plan but are to assist in its understanding.

12 In terms of the 2(b) zone the objectives of relevance are: Particular to provide for areas of medium and high density residential development in appropriate locations; and to encourage a diversity of dwelling types and tenure. Other objectives relate more to the foreshore and non-residential uses in the residential zones.

13 The clause relating to site area and frontages is contained in 10(B) and subcl (2). The proposed development complies, that is the site is more than 930 square metres and more than 25 metres required for residential flat buildings containing more than four dwellings.

14 The floor space ratio in the LEP for the subject site is 0.75 to 1. It is noted that in the Rose Bay Precinct that land behind the subject site was an FSR 1:1 and also land opposite in Spencer Street was a floor space ratio of 1:1. The sites including the subject on the eastern side of Spencer Street have a lower floor space ratio of 0.75:1 but are within the same zoning.

15 I shall now go to the Development Control Plan of 2003. The description provided for the Rose Bay Precinct is:

“between Old South Head Road/New South Head Road and the precinct incorporates the hillside at the neck of the Eastern Suburbs peninsula and the lowest part of the Rose Bay basin. The street block system in the low lying area is generally rectilinear allowing for consistent regular building allotments. On the hillside an irregular street and block pattern occurs reflecting the landform. Prominent building types within the precinct include inter-war attached housing and art deco apartment buildings. Recent development particularly in Spencer and Carlisle Streets has seen the subdivision pattern altered to create large allotments for residential flat buildings and which has seen a change in local character. This character change is to be maintained in this location. A change of character is also envisaged along Old South Head Road with a view to providing greater intensity of development adjacent to the regional road transitioning to smaller development behind where a mix of residential houses and smaller residential flat buildings is envisaged.”

16 There are a number of desired future character objectives for the Rose Bay Precinct and these include:

to encourage development in scale in relation to the function and role of the streets they address; to reinforce a consistent building scale across both sides of the street; to ensure that new development reinforces the precinct’s topography to maintain the evolution of residential building styles through the introduction of world design contemporary buildings The desired future character performance criteria also included in the plan and it is to ensure that development respects and enhances the existing elements of the local neighbourhood character. This refers to the rich mixture of residential architectural styles and forms and the tree canopy from by both street and private yard plantings, the relationship of residential development to open spaces.

17 For side boundary setbacks included in C4.9.4 where the site width exceeds 18 metres at the front alignment, development is to have a minimum side boundary of 3 metres and the side setback is increased on a pro rata basis by 0.5 metres for each metre or part thereof, where the building exceeds 6 metres. It is noted in the diagram to maintain a reasonable separation between buildings and to avoid an unreasonable sense of enclosure side boundary setbacks are to be a minimum of 3 metres.

18 There are a number of controls including a maximum height of 9.5 metres. The proposed development complies with the maximum height of 9.5 metres. The two storeys control is exceeded because the proposal is 3 storeys in part. Council does not take issue with this as the development generally complies with the height limit.

19 Section 4 includes the properties that front Old South Head Road and some of the properties on the opposite side of the road and there are separate controls these allow for three storey development and in this portion the FSR is 1:1.

20 The council contends and its assessment is based on the fact that with the conditions as proposed by the council then the proposed development would be satisfactory.

21 At this point, I need to read the conditions that have been imposed. We should go to Exhibit 5 which contains the conditions because one has been subsequently excluded from the council officer’s report.

22 The conditions which the council has imposed relate to the issue of FSR and setbacks:

23 The SEPP 1 objection the council contends is not well founded. The development would only be approvable on the basis of a reduction of the FSR.

24 The applicant submitted a SEPP 1 objection and the SEPP 1 objection has become Exhibit D. This provides for an assessment in terms of the aims and objectives of the SEPP and the objectives of the standard.

25 The Court has the benefit of not only the SEPP 1 but the further assessments that have been carried out for these proceedings. In particular the joint report provided further assessment of the SEPP 1 objection and Mr Betros says that the SEPP 1 is well founded for a number of reasons because it is consistent with the objective of the zone “to set the maximum density for new development the density is consistent with or less than the predominant density associated with comparable developments along both sides of Spencer Street and appears the majority of developments have been constructed since the adoption of the 1995 LEP which demonstrates that council has consistently varied the FSR standard in this immediate locality.” He then states that a reduction to achieve numerical compliance would only serve to reduce the internal amenity and quality of the dwellings.

26 Mr Betros also addresses the objective of the standard to control building density bulk and scale and states that the two storey presentation to Spencer Street and the predominant compliance with setbacks ensure the bulk and scale is consistent with the form of development contemplated by the density provisions. In terms of objective (c) “to minimise adverse environmental effects on the use or enjoyment or both of adjoining properties” he states the difference between a development that complied with FSR setbacks and that sought would not have a discernible difference to surrounding properties in relation to sunlight privacy views, the variation sought to the side and rear setback controls are minor, of no impact to sunlight to surrounding properties, it has been demonstrated above that the proposal is acceptable, in relation to amenity impacts.

27 In respect of objective (d) “to relate new development to the existing character,” Mr Betros states the scale and density of the development is consistent with or less than comparable developments along both sides of Spencer Street while the predominantly compliant setbacks ensure desirable amenity outcomes to surrounding neighbours.

28 It is noted that Ms Smith contends that cl 11 of the LEP stipulates that a building shall not be erected where it exceeds an FSR of 0.75 to 1 and the officer’s recommendation was to approve the development subject to that reduction. She has also assessed the proposal with the benefit of Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 and the underlying purposes of the standard have also been set out.

29 Ms Smith is of the opinion that the reduction in the setbacks causes a sense of enclosure and that there should be greater setbacks for the height of the walls that are proposed. In terms of the FSR the applicant has not demonstrated that the proposal should not comply with the FSR, and that the control would be unreasonable or unnecessary. She is of the opinion that there are adverse impacts on the adjoining property to the south in terms of additional overshadowing which is caused by the reduced setbacks and the excessive FSR and she states that insisting on full compliance with the FSR will ensure consistency with the objectives of the development standard.

30 The Court has the opportunity of asking questions of the experts on the table that was provided in the council officer’s report which was also reproduced in the joint report and this table shows a number of approvals within the Spencer Street. In particular I will focus on those properties on the same side of the road as the subject site because the FSR is 0.75:1 as opposed to 1:1 and it is noted for 25-27 Spencer Street approved in 2002 it has an FSR of 0.99:1, the property at 37-39 approved 1999 also has an FSR of 0.99:1 and the property at 53-57 approved in 2001 has an FSR of 0.91:1. The other properties on the opposite side of the road are 1:1 or greater and the control allows for 1:1.

31 The applicant contends that the proposed development satisfies the stated objectives of the development standard and as such it is unreasonable and unnecessary to strictly comply.

32 The applicant also referred to the fourth test, or fourth method I should call it, in the judgment of Wehbe v Pittwater Council [2007] NSWLEC 827, a judgment of the Chief Judge of this Court in December 2007. At paragraph 43:

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with the development standard is fixed as the usual means by which the relevant environmental planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary, it is achieved anyway, and unreasonable, no purpose would be served.

The fourth way is to establish the development standard has been virtually abandoned or destroyed by the council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable”.

33 The respondent states that the council has not abandoned the control as such and that this is not an appropriate way to assess the application. While not determinative the evidence to the Court would appear to suggest that the FSR has been flexibly implemented in this portion of the street for approved developments. However in my assessment this in itself is not a reason to uphold the SEPP 1 objection in this case and it is not a matter that I make comment on as to whether it has been virtually abandoned.

34 Clearly every development application must be assessed on its own merits and I turn to the traditional and first method of assessment in terms of the SEPP 1. That is are the objectives of the standard satisfied.

35 In this regard, I have the benefit of all the evidence to the Court and I must address these objectives. That is “to set the maximum density for new development” is a statement in itself and the LEP provides for an FSR of 0.75:1. We can see in this streetscape the FSR of 0.75:1 has been varied repeatedly. Council has used its discretion with the flexibility provided by SEPP 1.

36 Objective (B) is, “to control building density, bulk and scale in all residential and commercial localities in order to achieve the desired future character objectives of those localities.” In this regard it is appropriate to have regard to the development control plan as I cited earlier, for the character of the area. The character of the area is seen to be changing and this is clearly contemplated by the council in its development control plan for the Rose Bay P That is with the creation of larger allotments for residential flat buildings is seen as a pattern to be continued and encouraged. It is also noted that the future character objectives include, “to reinforce a consistent building scale across both sides of the street.”

37 There are different FSRs for both sides of this street, the proposed development will not nearly equate to development that is opposite in terms of the FSRs that have been approved. In fact the FSR for this proposed development is significantly less than many on this side of the street although this is not the test either, it is whether in fact the desired future character of the objectives of those localities are achieved and in this instance this objective is satisfied in my assessment and I agreed with Mr Betros.

38 Objective (C) is “to minimise adverse environmental effect on the use or enjoyment or both of adjoining properties.” Council considers the proposed development does not minimise adverse environmental effect. In my overall assessment having regard specifically to this objective, having regard to the character statement in the DCP, having regard to reasonableness in terms of adverse effects, I am satisfied the proposed development is one that fulfils the objective to minimise adverse environmental effect on the use or enjoyment of adjoining properties and that the exceedence in the FSR does not create adverse environmental effects that are unreasonable and in my assessment this objective is met.

39 Objective D is, “to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape.” Once again clearly from what has gone before the proposed development is one that will sit comfortably in the streetscape in terms of relating to new developments and it is not one that will create unreasonable adverse impact on adjoining development. As such the proposed development in my assessment satisfies objective D of the FSR standard

40 While the ‘note’ states that the permissible FSR is not of right on any merits assessment FSRs and height limits are not of right and every case must be assessed on its merits. But in terms of my assessment under SEPP 1 I am satisfied the proposed development meets the objectives of the standard and in terms of the aims of the policy, that is cl 3, the proposal fulfils this in that the policy provides flexibility in the application of planning controls where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objectives specified in the objects under section 5. In the instance of this case having regard to the objectives of the standard being fulfilled the FSR of 0.75:1 is unnecessary and for the flexibility envisaged by SEPP 1 is appropriate in the circumstances of this particular case.

41 Also in respect of an assessment under SEPP 1 on concurrence there are no issues of Sate or regional environmental planning. With respect to the issue of public benefit of maintaining planning controls, yes there is always a public benefit in maintaining controls and the individual assessment of every application must be considered against the framework of the planning controls and in this regard in my assessment the public benefit of maintaining the planning controls would not be undermined. That is it can be seen that Council has exercised flexibility in approving developments greater than the FSR in this locality.

42 I am satisfied the proposed development would be equal to one that is compliant in terms of the FSR and there are not adverse impacts. I recognise that the absence of environmental impact in itself is not a reason to uphold a SEPP 1 objection, one must go back to the objectives of the standard which are clearly articulated in cl 11AA of the LEP

43 In many respects the SEPP 1 objection overlaps with the merit assessment, or coincides with the SEPP 1 assessment. I have considered how a reduction in the FSR could be achieved. This could have been achieved in a number of ways. For example the central courtyards could have been enlarged and the overall extent setback to the rear boundary would remain as proposed. But the true test is to see whether the proposal satisfies the objectives of the FSR and one of those objectives clearly is that environmental impacts or adverse impacts are minimised. I am satisfied that the proposed development will not create unreasonable impacts and the location of the FSR at the point where council is requiring a reduction and a further setting back in my assessment is not required to satisfy the objectives of the standards.

44 There are no impacts in terms of privacy and the separation distances there has been consideration given to the separation distances with the properties along Old South Head Road. One of the properties has a separation distance of some 34 metres from habitable living areas to habitable living areas and it is noted that the property with the three dwelling houses erected thereupon, or units, has a lesser separation but in my assessment this does not result in privacy/overlooking concerns or a sense of enclosure from the proposed building.

45 The proposal has a compliant setback in terms of the rear boundary setback and an additional setback on the northern portion of 0.5 metres is not required as the amenity of the adjoining dwelling on the northern boundaries in Spencer Street is not adversely impacted. The proposal has the benefit of a built form which is separated by a courtyard which will also benefit adjoining properties. The location of the FSR in the position contended by the council I have not been convinced would warrant refusal of the application on a merits assessment either.

46 It is curious, and I just say this by way of comment, there has been a rather unusual approach in the assessment of this development application. The assessment report is premised on a set of conditions and the assessment flows from those conditions as opposed to assessing the proposal before the council and then formulating any necessary conditions to overcome adverse impacts or recommending a refusal. In some respects it is working backwards to start with a condition for an FSR and then carryout the assessment.

47 The report in many places prefaces the assessment of matters/impacts by stating, “subject to conditions” these matters are okay as opposed to looking at the development application and saying that balcony or that wall has this impact and for that reason it needs to be reduced or needs to be set back further. It is important the focus of the assessment must be the development application before the council and the assessment report is, as I stated, premised on “there are conditions in the recommendation which require this reduction” and then the assessment flows from that.

48 It is always appropriate or important and essential to look at what the impacts are from the proposed development as shown in the development application. Clearly it must be assessed against any local planning regime and justification of variations must be given. In the circumstances of this case I am satisfied the proposed development is reasonable and there is justification in varying the council’s controls.

49 The setbacks must be assessed on the basis of whether there are any amenity impacts in terms of the development control plan provisions and its objectives. An increased setback to the side boundary is not warranted in the circumstances of this case in my assessment. It could be seen and was shown on plan by the experts that the 6 m wall height is exceeded by between 200 and 700 millimetres on one building, and between 200 and 910 on the other building and I am satisfied that this would not create a sense of enclosure for the adjoining property. Similarly the setback to the rear is as contemplated in council’s controls and the incursion of the 800 millimetre balcony at the upper level for bedrooms is not a matter that would warrant refusal. It is also noted that the balconies are not included in the FSR calculation and in my assessment there is no need for a further setback.

50 There can be appropriate landscaping to punctuate the building form when viewed from the properties at the rear that front New South Head Road as opposed to screening. The building will sit comfortably on the site and sit comfortably in the streetscape and this area is one that clearly is envisaged for redevelopment to residential flat buildings. The building presents itself in terms of design as appropriate and indeed the council officer’s assessment under SEPP 65 I endorse on the proposed ten principles that one must consider under SEPP No. 65.

51 The applicant has indicated that it would prepare an amended landscape plan both to have regard to the additional setback on the southern boundary and also having regard to the need to provide for appropriate canopy trees, shrubs of a size commensurate with the area in terms of the DCP requirement that I cited earlier.

52 The issues raised by objectors of privacy and overlooking have been covered in my assessment as I am satisfied the proposed development having regard to the relationship of windows, sill heights glazing et cetera does not create adverse overlooking/privacy concerns and there are appropriate separation distances habitable rooms to habitable rooms. The building height is compliant and I am also satisfied that there will not be a sense of enclosure created or that the height of the walls for the proposed development are such that they would be overwhelming on adjoining properties.

53 Accordingly, on the basis of my assessment the formal Orders of the Court on the receipt of an amended landscape plan satisfactory to council will be:

54 There was a motion at the beginning of the proceedings for the amended plans version E. I note the council did not object to these plans being the subject of the proceedings. As such it is also noted that there are no costs with respect to the amended plans.

___________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

CSA ARCHITECTS PTY LIMITED

-v-

WOOLLAHRA MUNICIPAL COUNCIL

A. General Conditions

A.1 Approved Plans and supporting documents

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp “Approved DA Plans” unless modified by any following condition. Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s)

HSP-01 Rev E
HSP-02 Rev E
HSP-03 Rev E
HSP-04 Rev E
HSP-05 Rev E
HSP-06 Rev E Architectural Plans CSA Architects 16/12/08
16/12/08
16/12/08
16/12/08
16/12/08
16/12/08

213473M BASIX Certificate Department of Planning 04/09/08

Job number 208-597 Flood Assessment Report Greenarrow Hydraulics P/L 05/09/08
Revision B

08/01466 Geotechnical Report Michael Adler and Associates 09/09/08

DA02 (Revision A) Landscape Plan Michael Zinn January 2009

Note:

Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan.

Note:

These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate.)

Standard Condition: A5

A.2 Allotments

The survey plan has identified that the development site is comprised of separate allotments. These are to be consolidated into one lot and a new plan of subdivision prepared. Prior to the release of the Final Building Certificate a final Plan of Survey prepared and certified by a Registered Surveyor must be submitted and approved by the Accredited Certifier.

A.3 Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 (“the Act”) and the provisions of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act.

Standard Condition: A1

A.4 Definitions

Unless specified otherwise words have the same meaning as defined by the Act, the Regulation and the Interpretation Act 1987 as in force at the date of consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.

AS or AS/NZS means Australian Standard® or Australian/New Zealand Standard®, respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate.

Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney’s eastern suburbs (see the brochure titled “Local Native Plants for Sydney’s Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

a. The collection of stormwater,

b. The retention of stormwater,

c. The reuse of stormwater,

d. The detention of stormwater,

e. The controlled release of stormwater; and

f. Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site.

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act.

Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed.

Professional Engineer

has the same meaning as in the BCA.

Public Place

has the same meaning as in the Local Government Act 1993.

Road

has the same mean as in the Roads Act 1993.

SEE

means the final version of the Statement of Environmental Effects lodged by the Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

Work for the purposes of this consent means:

a. the use of land in connection with development,

b. the subdivision of land,

c. the erection of a building,

d. the carrying out of any work,

e. the use of any site crane, machine, article, material, or thing,

f. the storage of waste, materials, site crane, machine, article, material, or thing,

g. the demolition of a building,

h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,

i. the delivery to or removal from the site of any machine, article, material, or thing, or

j. the occupation of the site by any person unless authorised by an occupation certificate.

Note

: Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.

Standard Condition: A2

A.5 Ancillary Aspect of the Development (s80A(2) of the Act)

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the owner’s expense.

Note

: This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs.

Standard Condition: A8

A.6 Prescribed Conditions

Prescribed conditions in force under the Act and Regulation must be complied with.

Note

: It is the responsibility of those acting with the benefit of this consent to comply with all prescribed conditions under the Act and the Regulation. Free access can be obtained to all NSW legislation at Standard Condition: A30

B. Conditions which must be satisfied prior to the demolition of any building or construction

B.1 Establishment of Tree Protection Zones

To limit the potential for damage to trees to be retained, Tree Protection Zones are to be established around all trees to be retained on site. The Tree Protection Zones are to comply with the following requirements;

a) Tree Protection Zone areas

Council Reference No: Species Location Radius from Trunk (Metres)*

1
Lophostemon confertus (Brushbox) Council nature strip- front of number 45 Spencer street 2.5 metres

2
Lophostemon confertus (Brushbox) Council nature strip- between number 47 & 49 Spencer Street 2.5 metres

*NB:

Where this condition relates to street trees and the fence cannot be placed at the specified radius, the fencing is to be positioned so that the entire verge (nature strip) area in front of the subject property, excluding existing driveways and footpaths, is protected.

b) Tree Protection Zones are to be fenced with a 1.8 metre high chainmesh or weldmesh fence to minimise disturbance to existing ground conditions. The area within the fence must be mulched, to a depth of 75mm, irrigated and maintained for the duration of the construction works.

c) Trunk protection, to a maximum height permitted by the first branches, is to be installed around the trunks of the trees listed in the table below;

Council Reference No:

Species

Location

1
Lophostemon confertus (Brushbox) Council nature strip- front of number
45 Spencer street

2
Lophostemon confertus (Brushbox) Council nature strip- between number
47 & 49 Spencer Street

A padding material e.g. Hessian or thick carpet underlay, is to be wrapt around the trunk first. Harwood planks, 50x100mm and to the maximum possible length, are to be placed over the padding and around the trunk of the tree at 150mm centres. These planks are to be secured in place by 8 gauge wire at 300mm spacing.

d) A sign must be erected on each side of the fence indicating the existence of a Tree Protection Zone and providing the contact details of the site Arborist.

e) Existing soil levels must be maintained within Tree Protection Zones. Where excavation is undertaken adjacent such an area, the edge of the excavation must be stabilised, until such time as permanent measures are installed (e.g. retaining wall etc) to prevent erosion within the Tree Protection Zone.

f) Sediment control measures are to be installed around all Tree Protection Zones to protect the existing soil levels.

g) The storage of materials, stockpiling, sitting of works sheds, preparation of mixes, cleaning of tools or equipment is not permitted within Tree Protection Zones.

Site personnel must be made aware of all Tree Protection requirements, measures and any actions that constitute a breach of the Conditions of Development Consent with regard to tree protection on site during their site induction.

Standard Condition: B5

B.2 Recording of buildings with little or no heritage significance that are to be demolished:

A photographic archival record of the building and landscape elements to be demolished is to be submitted prior to the commencement of demolition work and prior to the issue of a Construction certificate.

The photographic archival recording is to be bound in an A4 format and is to include the following:

Site plan at a scale of 1:200 (or 1:500 if appropriate) of all structures and major landscape elements including their relationship to the street and adjoining properties.

Postcard sized photographs of:

a. each elevation,

b. each structure and landscape feature;

c. views to the subject property from each street and laneway or public space.

Each photograph to be mounted, labelled and cross-referenced in accordance with recognised archival recording practice.

One original coloured photographic set and a coloured photocopy are to be submitted to the satisfaction of Council prior to the commencement of demolition work and prior to the issue of a construction certificate. The original will be retained by Council and the coloured photocopy will be provided to the Woollahra Local History Library.

Standard Condition: B4 (Autotext BB4)

B.3 Construction Certificate required prior to any demolition

Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.

Note:

See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

C. Conditions which must be satisfied prior to the issue of any construction certificate

C.1 Modification of details of the development (s80A(1)(g) of the Act)

The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail:

FSR and Setbacks:
a. In order to reduce the extent of the non-compliance with Council’s FSR development standard, the full length of the eastern elevation to unit three (3) and unit four (4) shall be set back a further 1.0m from the eastern rear boundary at the second floor level. The internal layout of the second floor level: bedrooms, walk in robes and en suites may be modified to accommodate this requirement.

b. In order to reduce the extent of the non-compliance with Council’s northern side setback control and FSR development standard, the full length of the northern elevation to unit one (1) shall be set back a further 0.5m from the northern side boundary at first floor level.

c. In order to reduce the extent of the non-compliance with Council’s northern side setback control and FSR development standard, the first floor northern elevation to bedroom two (2), the bathroom, and bedroom three (3) of unit three (3) shall be set back a further 0.5m from the northern side boundary at first floor level.

Fences

e. To ensure a satisfactory streetscape outcome, the front fence to the western boundary shall be a maximum height of 1.7m, with a minimum transparency of 50%.

f. To protect the amenity of the neighbouring properties, the height of any new side or rear boundary fences shall be a maximum height of 1.8m as measured from existing ground level.

Visual privacy

g. To protect the visual privacy of the adjoining properties, the first floor level windows to the southern elevation to unit two (2) shall either have a minimum sill height of 1.7m or shall be fixed and glazed with translucent glass to a height of 1.7m. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

i. To protect the visual privacy of the adjoining properties, the privacy screens to the first floor windows to the southern elevation to unit four (4) shall include vertical louvers, which are openable to a maximum of 45 degrees from the vertical plane of the window to allow sunlight access and views to the south east. The louvers shall be spaced to ensure that no views from the window are available to No. 43 Spencer Street; the adjoining property to the south.

j. To protect the visual privacy of the adjoining properties, the ground floor living room windows to the northern elevation of unit one (1) shall either have a minimum sill height of 1.7m or shall be fixed and glazed with translucent glass to a height of 1.7m. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

k. To protect the visual privacy of the adjoining properties, the ground floor WC window to the northern elevation of unit one (1) shall either have a minimum sill height of 1.7m or shall be fixed and glazed with translucent glass to a height of 1.7m. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

l. To protect the visual privacy of the adjoining properties, the first floor staircase window to the northern elevation of unit three (3) shall be fixed and glazed with translucent glass. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

m. To protect the visual privacy of the adjoining properties, the first floor bathroom window to the northern elevation of unit three (3) shall be fixed to a height of 1.7m and glazed with translucent glass. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

n. To protect the visual privacy of the neighbouring properties, the first floor bedroom two (2) and bedroom three (3) windows to the northern elevation of unit three (3) shall be fixed and glazed with translucent glass to a height of 1.7m. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

o. To protect the visual privacy of the neighbouring properties, a 1.7m high solid privacy screen shall be inserted along the northern side of the front (western) balcony to unit one (1).

p. To protect the visual privacy of the neighbouring properties, the upper level windows to the northern elevation of unit one (1) shall either have a minimum sill height of 1.7m or shall be fixed and glazed with translucent glass to a height of 1.7m. Alternatively, the windows can be awning type windows openable to a maximum of 125mm (restrictive stay) with translucent glazing to a height of 1.7metres.

Vehicle access:

q. The access to the driveway is to include splays to allow adequate site distance to traffic and pedestrians. The splays are to be 2.0m by 2.0m.

r. The full removal of the redundant vehicle crossing and the reinstatement of the K&G and grass verge to Council’s standard drawing RF3.

s. The footpath is to be reconstructed for the full length of the property’s frontage in accordance with Council’s standard drawing RF3.

Screen Planting:

t. Screen planting with a minimum height of 1.8 metres at planting stage is to be provided along the entire length of the eastern rear boundary. This requirement is imposed to ensure an adequate level of privacy to No. 626 and 628 Old South Head Road is maintained.

C.2 Payment of Security, Levies and Fees (S80A(6) & S94 of the Act, Section 608 of the Local Government Act 1993)

The person(s) with the benefit of this consent must pay the following long service levy, security, development levy, and fees prior to the issue of any construction certificate, subdivision certificate or occupation certificate, as will apply.

The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees. Specifically

a. prior to the issue of a construction certificate, where a construction certificate is required; or

b. prior to the issue of a subdivision certificate, where only a subdivision certificate is required; or

c. prior to the issue of an occupation certificate in any other instance.

Description Amount Indexed Council
Fee Code

LONG SERVICE LEVY
under Building and Construction Industry Long Service Payments Act 1986

Long Service Levy
Use Calculator: Contact LSL
Corporation or use their online calculator No

SECURITY
under section 80A(6) of the Environmental Planning and Assessment Act 1979

Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates. $52,470.00 No T115

Tree Damage Security Deposit –
Making good any damage caused to any public tree as a consequence of the doing of anything to which the consent relates. $5,200.00 No T114

DEVELOPMENT LEVY
under Woollahra Section 94A Development Contributions Plan 2005
This plan may be inspected at Woollahra Council or downloaded from our website .

Development Levy (S94A) $25,231.19 + Index Amount Yes, quarterly T96

INSPECTION FEES
under section 608 of the Local Government Act 1993

Public Tree Management Inspection Fee $160 No T95

Public Road and Footpath Infrastructure Inspection Fee $375.00 No T45

Security Administration Fee $175.00 No T16

TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $83,611.19
Plus any relevant indexed amounts and long service levy

Building & Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act, 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate.

Note: The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation’s website or by telephoning the Long Service Payments Corporation on 13 14 41.

How must the payments be made?

Payments must be made by:

a. Cash deposit with Council,

b. Credit card payment with Council, or

c. Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:

a. the guarantee is by an Australian bank for the amount of the total outstanding contribution;

b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first;

c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and

d. the bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

How will the section 94A levy be indexed?

To ensure that the value the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2005 sets out the formula and index to be used in adjusting the s.94A levy.

Do you need HELP indexing the levy?

Please contact our customer service officers. Failure to correctly calculate the adjusted the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).

Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005

Where the applicant makes a written request supported by reasons for payment of the section

94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:

a. the reasons given;

b. whether any prejudice will be caused to the community deriving benefit from the public facilities;

c. whether any prejudice will be caused to the efficacy and operation of this plan; and

d. whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected.

Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where:

a. the guarantee is by an Australian bank for the amount of the total outstanding contribution;

d. the bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid.

Standard Condition: C5

C.3 Road and Public Domain Works – Council approval required

This development consent does NOT give approval to works or structures over, on or under public roads or footpaths excluding minor works subject to separate Road Opening Permit.

Detailed plans and specifications of all works (including but not limited to structures, road works, driveway crossings, footpaths and stormwater drainage) within existing roads, must be submitted to and approved by Council under the Roads Act 1993, before the issue of any Construction Certificate.

Specific works include:

Full width vehicular crossings having a width of 4.0m in accordance with Council’s standard drawing RF2.

The full removal of the redundant vehicle crossing and the reinstatement of the K&G and grass verge to Council’s standard drawing RF3

The footpath is to be reconstructed for the full length of the property’s frontage in accordance with Council’s standard drawing RF3.

A design longitudinal surface profile for the proposed driveway must be submitted for assessment. The driveway profile is to start from the road centreline and be along the worst case edge of the proposed driveway. Gradients and transitions must be in accordance with Clause 2.5.3, 2.6 of AS 2890.1 – 2004, Part 1 – Off-street car parking. The driveway profile submitted to Council must be to (1:25) scale (for template checking purposes) and contain all relevant details: reduced levels, proposed grades and distances

Access levels and grades to and within the development must match access levels and grades within the road approved under the Roads Act 1993.

All public domain works must comply with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions. This specification can be downloaded from .

Note: To ensure that this work is completed to Council’s satisfaction, this consent by separate condition, may impose one or more Infrastructure Works Bonds.

Note: Road has the same meaning as in the Roads Act 1993.

Note

: The intent of this condition is that the design of the road, footpaths, driveway crossings and public stormwater drainage works must be detailed and approved prior to the issue of any Construction Certificate. Changes in levels may arise from the detailed design of buildings, road, footpath, driveway crossing grades and stormwater. Changes required under Road Act 1993 approvals may necessitate design and levels changes under this consent. This may in turn require the applicant to seek to amend this consent.

Standard Condition: C13

C.4 Utility Services Generally

The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must demonstrate that all utility services (telecommunications, electricity, gas, water and waste water) will be provided underground. All service ducts, pipes and conduits must be provided within the fabric of the building (excluding stormwater down pipes).

Where telecommunications and electricity are provided from existing poles in the road they must, in accordance with the relevant suppliers’ requirements, be carried to the site underground directly to the main switch board within the fabric of the building.

Note: Where adequate provision has not been made for an electrical sub-station within the building, this may necessitate the lodgement of an application to amend this consent under section 96 of the Act to detail the location, landscape/streetscape impacts and compliance with AS2890 as applicable.

The location of service poles and substations required by the relevant suppliers must be shown upon the plans submitted with any Construction Certificate application together with a letter from each relevant supplier setting out their requirements.

Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building unless expressly shown upon the approved DA plans. Details confirming compliance with this condition must be shown on the Construction Certificate plans and/or detailed within the Construction Certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on the Construction Certificate plans.

Note: The intent of this condition is that the design quality of the development must not be compromised by cables, pipes, conduits, ducts, plant, equipment, electricity substations or the like placed such that they are visible from any adjoining public place. They must be contained within the building unless shown otherwise by the approved development consent plans.

The Construction Certificate plans and specifications, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the replacement of all private sewer pipes between all sanitary fixtures and Sydney Waters sewer main where they are not found by inspection to be UPVC or copper with continuously welded joints.

: This condition has been imposed to ensure that where private sewer pipes are old, may leak or may be subject to root invasion (whether from existing or proposed private or public landscaping) that existing cast iron, concrete, earthenware or terracotta pipes be replaced with new UPVC or copper continuously welded pipes between all sanitary fixtures and Sydney Waters sewer main, such that clause 25(1) of WLEP 1995 be satisfied. Further, leaking sewer pipes are a potential source of water pollution, unsafe and unhealthy conditions which must be remedied in the public interest.

Standard Condition: C20

C.5 Soil and Water Management Plan – Submission & Approval

The principal contractor or owner builder must submit to the Certifying Authority a soil and water management plan complying with:

a. “Do it Right On Site, Soil and Water Management for the Construction Industry” published by the Southern Sydney Regional Organisation of Councils, 2001; and

b. “Managing Urban Stormwater - Soils and Construction” published by the NSW Department of Housing 4th Edition” ('The Blue Book').

Where there is any conflict The Blue Book takes precedence. The Certifying Authority must be satisfied that the soil and water management plan complies with the publications above prior to issuing any Construction Certificate.

Note: This condition has been imposed to eliminate potential water pollution and dust nuisance.

Note: The International Erosion Control Association – Australasia lists consultant experts who can assist in ensuring compliance with this condition. Where erosion and sedimentation plans are required for larger projects it is recommended that expert consultants produce these plans.

Reason: This condition has been imposed to protect the amenity of neighbours and limit the obtrusive effects of outdoor lighting in public places.

: This condition has been imposed to control the obtrusive effects of outdoor lighting.

Standard Condition: I42

I.7 Noise from mechanical plant and equipment

Noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest lot boundary of the site. Where noise sensitive receivers are located within the site, noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest strata, stratum or community title boundary.

Reason: This condition has been imposed to protect the amenity of the neighbourhood.

: Words in this condition have the same meaning as in the:

NSW Industrial Noise Policy

)
ISBN 0 7313 2715 2, dated January 2000, and
Noise Guide for Local Government ( )
ISBN 1741370671, dated December 2004.

Standard Condition: I53

J. Miscellaneous Conditions

None relevant.

________________________

ljr

CITATION:	CSA Architects Pty Limited v Woollahra Council [2009] NSWLEC 1054
PARTIES:	APPLICANT CSA Architects Pty Limited RESPONDENT Woollahra Council
FILE NUMBER(S):	11119 of 2008
CORAM:	Murrell C
KEY ISSUES:	SECTION 97 APPEAL :- Development Application for demolition and consolidation of two lots and construction of Units, basement parking, swimming pools, landscaping and strata title.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 Woollahra Local Environmental Plan 1995 Woollahra Development Control Plan 2003
CASES CITED:	Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827
DATES OF HEARING:	29/01/2009
DATE OF JUDGMENT:	30 January 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister Instructed by John Lloyd and Co RESPONDENT Mr P. Rigg, solicitor of Deacons

Reference	Description	Author/Drawn	Date(s)
HSP-01 Rev E HSP-02 Rev E HSP-03 Rev E HSP-04 Rev E HSP-05 Rev E HSP-06 Rev E	Architectural Plans	CSA Architects	16/12/08 16/12/08 16/12/08 16/12/08 16/12/08 16/12/08
213473M	BASIX Certificate	Department of Planning	04/09/08
Job number 208-597	Flood Assessment Report	Greenarrow Hydraulics P/L	05/09/08 Revision B
08/01466	Geotechnical Report	Michael Adler and Associates	09/09/08
DA02 (Revision A)	Landscape Plan	Michael Zinn	January 2009

Council Reference No:	Species	Location	Radius from Trunk (Metres)*
1	Lophostemon confertus (Brushbox)	Council nature strip- front of number 45 Spencer street	2.5 metres
2	Lophostemon confertus (Brushbox)	Council nature strip- between number 47 & 49 Spencer Street	2.5 metres

Description	Amount	Indexed	Council Fee Code
LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy Use Calculator:	Contact LSL Corporation or use their online calculator	No
SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates.	$52,470.00	No	T115
Tree Damage Security Deposit – Making good any damage caused to any public tree as a consequence of the doing of anything to which the consent relates.	$5,200.00	No	T114
DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded from our website .
Development Levy (S94A)	$25,231.19 + Index Amount	Yes, quarterly	T96
INSPECTION FEES under section 608 of the Local Government Act 1993
Public Tree Management Inspection Fee	$160	No	T95
Public Road and Footpath Infrastructure Inspection Fee	$375.00	No	T45
Security Administration Fee	$175.00	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$83,611.19 Plus any relevant indexed amounts and long service levy