Designlink International v Baulkham Hills Shire Council
[1999] NSWLEC 243
•10/22/1999
Land and Environment Court
of New South Wales
CITATION:
Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 243
PARTIES
APPLICANT
Designlink InternationalRESPONDENT
Baulkham Hills Shire Council
NUMBER:
10112 of 1999
CORAM:
Sheahan J
KEY ISSUES:
Development :- Development application - Class 1 appeal - 3 storey residential flat building
LEGISLATION CITED:
Environmental Planning & Assessment Act 1979
Baulkham Hills LEP 1991
SEPP 53 - Metropolitan Residential Development
DATES OF HEARING:
09/27/1999; 09/28/1999
DATE OF JUDGMENT DELIVERY:
10/22/1999
LEGAL REPRESENTATIVES:
RESPONDENT
APPLICANT
Mr B Goldsmith
Mr C Drury (Solicitor)
SOLICITORS
Phillips Fox
JUDGMENT:
IN THE LAND AND Matter No: 10112 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 22 October 1999
DESIGNLINK INTERNATIONAL
Applicant
v
BAULKHAM HILLS SHIRE COUNCIL
Respondent
JUDGMENT
Introduction
1. This Class 1 appeal concerns a proposal for the redevelopment of four residential allotments, namely 2, 4 and 6 Shirley Street and 4 Janell Crescent, Carlingford, being lots 28-30 in Deposited Plan 24777 and lot 6 in Deposited Plan 30115.
2. Consolidating the four lots will create an irregularly shaped site of 3,286.6 square metres, having a total street frontage to Shirley Street of 65.53 metres and to Janell Crescent of 17 metres.
3. The subject site is located conveniently close to both Carlingford Railway Station and Pennant Hills Road, at the south-eastern extremity of what is known as the “ Carlingford Precinct ” of Baulkham Hills Shire Council area, near the point where that Shire adjoins both Hornsby Shire and Parramatta City, namely “ Mobbs Hill ” at the intersection of Pennant Hills Road, Marsden Road and Carlingford Road.
4. Development application No.1566/99/HB was submitted to Council on 6 November 1998, and sought consent to construct on the subject site a predominantly three-storey residential flat building comprising 15 three bedroom and 8 two bedroom units, and 52 carparking spaces (38 for residents and 14 for visitors). It proposed retention of a large tree on the site, but removal of some substantial vegetation (conceded by the Council to be diseased) along the Shirley Street frontage.
5. Under the provisions of Baulkham Hills Local Environmental Plan 1991 (“ the LEP ”) a residential flat building is permissible on the subject site, as “ advertised development ”, requiring Council’s consent.
6. This appeal was commenced on 25 February 1999 against the deemed refusal of the development application, but Council proceeded to refuse it on 18 March 1999.
7. Many of the issues raised in the Notice of Refusal were repeated in the Amended Statement of Issues filed on 6 July 1999, but the revised plans tendered as Exhibit B2 apparently address to Council’s satisfaction many of its earlier concerns. Some matters of detail which remain of concern are covered by the Council’s suggested conditions (see Exhibits B6 and B12 ), with which the applicant is generally content.
8. Inter alia, the grounds of refusal relied upon by the Council included an assertion that the proposed development is “not consistent with the aims and objectives of [the LEP], specifically (a) and (d) and objective (b)”; “not consistent with the objectives of the residential 2(a) zone under the[LEP], specifically objective (b)”; “does not comply with the development objectives and standards of Development Control Plan 23 - Apartment buildings in respect to ” 16 headings.
9. The proposed development is a three storey pitched roof design with a frontage of 42 metres to Shirley Street. The site has a 5 metre rise to Janell Crescent, to which it is proposed to have a secondary pedestrian access. The Council’s case is essentially that this site is in an area suitable for single dwellings or two storey construction, and that a project such as this is unsuitable, due to the bulk and scale of the building on a site rising quite noticeably from its main frontage.
The locality
10. Figure 4 in the statement of evidence of Greg Hall, Council’s Town Planning Coordinator, ( Exhibit B1 ) gives a useful schematic picture of the immediate locality, and the surrounding area is also depicted clearly in the photographs in Exhibits B1 and B7 .
11. The Council describes its “Carlingford Precinct ” as “ predominantly a residential dormitory suburb ”. Shirley Street was referred to during the hearing as a “ typical suburban street” of “ predominantly single dwellings with some medium to high density development”. The subject site is zoned Residential 2(a), but between it and the railway line there is an area zoned 3(b) “ Special Business ”, some other land zoned 2(a) and some zoned 6(a) “ Public Open Space ”.
12. If allowed, this proposed residential flat building will be bounded to its south by the rear boundaries of the local Uniting Church and three cottages facing Pennant Hills Road, to its south-east and north-east by cottages facing Janell Crescent, and to its north-west by cottages Nos. 8 and 10 Shirley Street.
13. The church on the corner is a substantial building with a “ blunt ” brick wall which addresses Pennant Hills Road. The building height on the church property then slopes away towards No.2 Shirley Street.
14. On the opposite side of Shirley Street on the corner of Lloyds Avenue there is a substantial medium density development apparently approved in December 1985. Behind it, facing Boundary Street, there are a public library and a kindergarten. Opposite them on the western side of Boundary Street, within the 3(b) zone, is a very substantial residential flat complex.
15. On the same side of Shirley Street as the church and the subject site, there is at No.12, on a double block, another medium density development which presents to Shirley Street and to the site with a tennis court, adjacent to No.10, over the top of which runs high tension electricity wiring. On the view the court noted that the basement of No.12 protrudes above ground level.
16. Directly opposite the tennis court is the Shirley Street entry to an L-shaped open-space/recreational area which adjoins the railway line reserve. There is a pedestrian walkway alongside the railway line across the open space.
17. Janell Crescent is also mainly cottages but from the front of Nos.4 and 6, one can quite clearly see No.12 Shirley Street.
18. The government is currently investigating proposals to extend the nearby railway line beyond its current terminus at Carlingford as part of a project to construct a rail link between Parramatta and Chatswood via Epping and Macquarie University ( Exhibit A3 ). The proposal involves a below ground railway line between Carlingford and Epping. Current estimates are that the new rail service will be operating by 2006. Exhibit A3 indicates that a second track will be constructed adjacent to the existing single track to Carlingford and that improved pedestrian access to Carlingford Station will be constructed at Pennant Hills Road. One resident objector suggested that the station may be relocated to a site closer to the Carlingford Town Centre.
The planning and development regime
The 1964 Ordinance
19. The Baulkham Hills Planning Scheme Ordinance 1964 created two principal residential zones. Residential A and B zones were arbitrarily established with no apparent regard to the environment and character of the area. Essentially, residential A was applied to all residential development existing at that time, and permitted villas, townhouses and residential flat buildings. Areas released for development later or, more accurately, areas identified for future urban release, were designated residential B, a zone which did not permit - until the advent of dual occupancy policy - any form of residential development other than detached dwellings on lot sizes between 700 square metres and 900 square metres.
LEP 1991
20. The LEP was gazetted on 1 March 1991. Exhibit B3 is a reprint dated 6 September 1999 embodying some 71 amendments made up to and including 6 August 1999.
21. The LEP adopted the original 1964 residential zone boundaries almost without exception, due to the primary need at that time to bring together some 300 different LEPs and IDOs into one instrument. Residential 2(a) zones are located in a range of suburbs and localities, and townhouses and apartment buildings or residential flat buildings are permissible as advertised development with Council’s consent. “ Apartment buildings ” are not defined, but “ advertised development ” is dealt with in cl 35, which generally equates it to what is elsewhere referred to as designated development. Clause 4 includes residential flat buildings in “ advertised development” , and cl 5(1) defines ‘residential flat building’ as “ a building containing 3 or more dwellings”.
22. Clause 2 of the LEP sets out its aims and objectives and the following aims in cl 2(1) appear to be relevant to this matter:
…
(b) to create a broad framework of controls and allow the opportunity for more detailed provisions relating to matters of local significance to be contained in development control plans; and
(c) to promote the efficient utilisation of land, services and support facilities in existing urban areas …
(d) to facilitate and encourage development which is compatible with the environmental amenity and heritage of the Shire;…
23. The objectives in clause 2(2) include:
(a) to modify planning controls having regard to growth and change in the Shire; and
(b) to protect areas from inappropriate development and ensure that local amenity is maintained and enhanced; and
…
(k) to encourage a safe and efficient transport network connecting land use activities within the Shire and adjoining areas.
24. The zones are defined in cl 8 and their objectives, etc. in cl 9, which introduces the development control table. The following objectives are set out for the residential 2(a) zone:
(a) to make general provision for land to be used for the purposes of housing and associated facilities; and
(b) to provide for development for medium-density housing forms (including town houses, villas, cluster housing, semi-detached housing and the like) in locations close to the main activity centres of the Shire; and
(c) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; and
(d) to allow a range of developments, ancillary to residential uses, which
(i) are capable of visual integration with the surrounding environment; and
(ii) serve the needs of the surrounding population without conflicting with the residential intent of the zone; and
(iii) do not place demands on services beyond the level reasonably required for residential use.
The strategies
25. Council developed a Housing Strategy in 1995 and a Residential Development Strategy in 1997. The 1995 Housing Strategy recognised that the most significant and appropriate opportunities for an increase in residential densities occurred on land close to existing activity centres, public transport centres, employment centres and surplus M2 corridor land.
26. Based on the Housing Strategy and guidelines issued by the Department of Urban Affairs & Planning in October 1995, dealing with the government’s approach to urban consolidation, Council proceeded in 1997 to prepare a Residential Development Strategy . SEPP 53 - Metropolitan Residential Development was gazetted on 26 September 1997, designed to broaden housing choice, make better use of infrastructure, reduce land consumption on the urban fringe, and promote good design.
27. Council developed its Residential Strategy to demonstrate its commitment to achieving the objectives of the Metropolitan Strategy, and in September 1997 the Minister granted the Council an exemption from SEPP 53. Although the Council’s Residential Strategy was endorsed, the Minister indicated that insufficient commitment was being made to provide increased opportunities for raising densities in the established areas of the Shire. The Council was, therefore, required to undertake a review of its development controls and, in particular, plan for apartment buildings and investigate opportunities for increasing densities around transport nodes. ( Exhibit B5 , p2).
28. The Residential Development Strategy committed Council to actions including the following:
· Preparation of a draft LEP to rezone a number of target sites to enable multi-unit residential development.
· Exhibition of an amended Medium Density Development Control Plan.
· Preparation of a Development Control Plan for Residential Flat Buildings.
· Completion of urban capability studies in the Residential 2(a) zone.
DCP 23
29. On 20 May 1998 Council adopted Development Control Plan 23 - Apartment Buildings (“ DCP 23 ”) to control residential apartment buildings in the Shire. “ Apartment buildings ” are not defined, but the introduction says that the term includes residential flat buildings. The DCP provides that all such projects are to have “ minimum impact on the surrounding development and offer high levels of amenity, solar access and energy efficiency for future residents; and to provide opportunities for housing choice and affordability in order to meet the broader housing needs of the community ”.
30. The objectives of DCP 23 are set out in out in s 1.2 as follows:
·
to provide guidelines for the development of apartment buildings in the Shire;
· to ensure that all new apartment building developments have minimum impact on the surrounding development and offer high levels of amenity, solar access and energy efficiency for future residents; and
· to provide opportunities for housing choice and affordability in order to meet the broader housing needs of the community.
31. The DCP notes that Council:
has recognised the need for this form of housing in appropriate locations within the Shire. It is this Council’s position that appropriate development in or nearby to commercial centres would contribute to the State Government’s requirements for a more compact and sustainable metropolitan area. In addition there is a need to provide accommodation for a community that is requiring greater variety of housing types within established urban areas. This form of residential housing although not new within the Shire is likely to increase and this code has been designed to ensure that high quality design for apartment buildings is encouraged in the Shire.
32. The overview in s 2 deals with residential strategy in s 2.1, site analysis in s 2.2, design elements in s 2.3 and desired future neighbourhood character in s 2.4.
33. Section 2.2 says:
This Development Control Plan advocates a comprehensive approach to site planning, design and assessment of residential development. Initial assessment is required of a site to establish the characteristics of the locality, analysis of the site and what development is compatible within the locality.
To establish the appropriate form of development Council requires for each application a site analysis description for apartment buildings. It must be accompanied by, and in particular, it should be used to assess how future dwellings relate to their immediate surroundings and to each other. It should also be used to produce a design that minimises the negative impacts on the amenity of the adjoining residential development.
In addition, the site analysis should make reference to the desired future neighbourhood character as part of the site analysis and provide the context for which the design has been made. The desired future neighbourhood character is explained further in Section 2.4.A site analysis description is attached as Appendix 1 to this Development Control Plan. A site analysis description must contain information where appropriate about the site and its surrounds and should be in the form of a plan describing the site. The site analysis description should also be accompanied by a written statement explaining how design and development has regard to the site analysis.
34. Appendix 1 provides a comprehensive list of items and information that a site analysis “ should identify ”.
35. Section 2.3 deals with 8 headings of design elements and the Council took the court particularly to:
(a) Streetscape : The proposed development must:
(c) Solar Access and Design for Climate : The proposed development must:
(i) contribute to an attractive residential environment with clear character and identify (sic) ;
(ii) address the street and boundaries to the site with a building form compatible with adjoining development in terms of street elevation and preservation; and
(iii) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan.
…
(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space; and
(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation, solar heating and lighting.
…
(h) Visual bulk : The proposed development must maintain reasonable neighbour amenity and appropriate residential character by:
(i) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing;
(ii) using building form and siting that relates to the site’s land form;
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development; and
(iv) considering, where buildings are located on the boundary walls of neighbours.
36. During the hearing reference was frequently made to the following paragraphs from s 2.4:
To determine the locations for apartment buildings the general context of locational characteristics and neighbourhood character is explained taking on the broader issues of infrastructure, social and built environment impacts for increasing housing density.
It is Council’s position that higher density development within the existing urban areas should be located in close proximity to services such as shopping centres, schools and transport routes. While locations should also have regard to the built environment and be situated adjoining and adjacent or against commercial development.
The areas which enjoy higher accessibility to public transport, are well serviced with utilities and are in close proximity to both community and social services include retailing are more suited to higher density accommodation. The relationship between these elements can be simply shown in the diagram in next column.
Introducing higher density housing into established areas raises issues related to urban design, particularly in relation to context and physical form. It is for these reasons in this form of housing needs to have regard to the physical setting and elements of the neighbourhood to determine whether the development is compatible with the existing or developing character of the area.
For example, it is arguable that introducing three or four storey buildings into an established area comprising single and two storey dwellings may be considered to be contentious .
Designers need to have regard to all the design elements of the neighbourhood when establishing that apartment buildings may be suitable. It is not considered appropriate to introduce a 3 or 4 storey building into a flat and level neighbourhood characterised by single storey dwellings.
It is Council’s position that there should be a transition from single dwelling areas into the areas of three and four storeys which are located closer to commercial areas. The transition should have regard to the character of the area including built form, physical landform (including slope and topography) and vegetation feature (including significant stands of vegetation or trees). Special consideration needs to also be given to heritage issues including buildings and areas of conservation value.
The desired future neighbourhood character is best illustrated by the following diagram:
SEE HARD COPY FOR DIAGRAM
37. Without reading too much into the diagram, in comparison with the text, the court notes that this diagram depicts in residential 2(a) only apartment buildings and medium density development and that, at least pictorially, there would appear to be some recognition, if not emphasis, that apartment buildings in the zone are likely to be more dense than medium density projects and that they may generally be three storeys.
38. The DCP then goes on in s 3 to deal with “ Development objectives & standards ”. Section 3.1 deals with Density, 3.2 with Site Requirements, 3.3 Setback, 3.4 Building height, 3.5 Building Separation, 3.6 Open Space, 3.7 Solar Access, 3.8 Visual and Acoustic privacy, 3.9 Parking, 3.10 Driveways, 3.11 Streetscape & Building Appearance; 3.12 Energy Efficiency, 3.13 Utilities and Site Facilities, and 3.14 Access, Safety and Security. In this context, reference is made in the Council’s case to Items 3.1, 3.3, 3.7, 3.8 and 3.11-3.14.
39. As the major item of this list which remains a “ live issue ” between the parties is “ setback ”, the court notes that s 3.3.1 provides that the minimum front setback shall be 10m for all buildings, except where the allotment is a corner allotment and the setback shall be 10m and 6m for the secondary frontage”, and s 3.3.2 provides for a minimum side or rear setback of 6 metres, and that “ No balcony shall protrude into setback area ”. Section 3.3.2(b) provides a formula for calculating additional side and rear setbacks in the case of sloping sites.
The urban capability study
40. Exhibit B5 is a document entitled “ Draft Urban Capability Assessment of Residential 2(a) Zones in Baulkham Hills Shire ” (“ the Study ”), prepared by the Planning Services Group in 1999, to identify the suitability of land for redevelopment and housing types.
41. The Study notes that by the year 2011 the expected population of Baulkham Hills Shire, which is undergoing significant growth and change, is likely to be in the order of 175,000 people, and that:
A significant element of this growth is directly related to the opportunities to accommodate population increase, through not only the development of urban release areas such as the Kellyville/Rouse Hill release area, but also through redevelopment of existing and established urban areas.
42. The Study notes that urban growth is not brought about solely by development of undeveloped land, and that other factors include improved transport infrastructure and the demand for alternative forms of housing and location in the established areas.
43. The Study goes on to note that the more established precincts including Carlingford lost population in the period 1986-1996 while the Shire as a whole had experienced strong growth of 4%-6% per annum. Average occupancy of dwellings dropped from 3.52 persons per dwelling in 1986 to 3.28 in 1996.
44. The Study identifies that “ there are significant problems in the existing urban area principally arising from inadequacies in the arterial road system, limited public transport and with little scope for relief in the near future. More specifically, peak hour traffic congestion on the arterial road system is the major limiting factor affecting the capacity of the Residential 2(a) areas to accommodate further intensification of development ”.
45. The introductory section of the Study concludes:
The strategy that is developing as an outcome of this work is one which aims to focus higher density development to those precincts that have shown a capacity to accommodate further growth. These areas are:
· The town centres of Castle Hill, Baulkham Hills & Carlingford;
- …
46. The report on Precinct 3 Carlingford (p 35ff) notes that it is predominantly a residential dormitory suburb but contains a significant commercial/retail component, supplemented by transport nodes based upon Carlingford railway station and bus services operating from Carlingford Court shopping centre. The land use is predominantly single dwellings. Three and four storey buildings appear to have been concentrated in the Special Business 3(b) zones.
47. In s 5.6 on Housing, the report notes:
The existing dwelling stock ranged in age from 1950s development adjacent to Carlingford Railway Station to late 1970s and early 1980s development in the north of the precinct. Dual occupancy and townhouse development has occurred to a limited extent in the older portions of the precinct and, in more recent times, Council has granted development consent for residential flat buildings in close proximity to the Carlingford railway station.
48. The development potential of the residential 2(a) zone is summarised in a table on p 6 of the document. When the report turned its attention to the redevelopment opportunity, it identified 11 sub-precincts. Within Precinct 3 Carlingford, the areas identified as having “ high opportunities ” in terms of development potential were CF3, CF4 and CF5. It noted that growth needs to be controlled by a planned and deliberate strategy designed to make the best use of scarce resources and provide a framework for certainty in investment and lifestyle aspirations.
49. The subject site occurs in sub-precinct CF4, which is the area bounded by Boundary Road to the west, Post Office Road to the north and the Mobbs Hill intersection to the east.
50. In respect of sub-precinct CF4 the report notes as follows:
·
little capacity in the arterial road network
· the environmental capacity of some local roads has been reached
· redevelopment would require traffic measures to address the environmental capacity of the local road system
· redevelopment potential of some sites in the northeast corner is constrained by steep slopes
· a significant area within the sub-precinct is constrained by the presence of large mature trees
· redevelopment potential of some sites is constrained by an easement used for high voltage electricity distribution
· good opportunities for consolidation to form larger development sites
· good proximity to both the town centre and local public transport hub
51. In a “ rating ” system which gave “ one ” for lower urban capability opportunities, “ two ” for moderate, and “ three ” for high, the features of sub-precinct CF4 ranked 1 on none of the 9 criteria, 2 on only three of those criteria (topography, trees and electricity easements), and 3 on all 7 other headings (drainage, access to public transport, housing, open space and recreation, distance to centre, and distance to public transport hub).
Council’s view
52. The comprehensive report on the Council’s consideration of the draft study is in evidence as Attachment A10 in Exhibit B1 .
53. Council’s preferred option was to go down the path of amending its local environmental plan, development control plans and contribution plan, having due regard to transport proposals, emphasising residential 2(a).
54. Council’s position on residential apartment buildings, as presented in this case, is that there should be a “ transition ” from single dwellings into medium density/villa/townhouse development, and, closer to town centres, there should be areas of 3-4 storey development.
The issues
55. As noted in the Introduction, many of the Council’s detailed concerns with this proposal have been addressed by amendments and agreed conditions. However, a number of general and specific concerns remain.
General matters
56. Council concedes ( Exhibit B1 and Mr Hall’s oral evidence) that while the site is located in close proximity to services such as shopping centres and transport routes “ the development as proposed has not had regard to the built environment and physical setting and elements of the neighbourhood. The local neighbourhood character is generally single detached dwellings on larger allotments of land with several two storey townhouse developments and a church adjoining a portion of the site’s southern boundary. The development of a three level residential apartment building is not compatible with the existing or developing character of the area ” ( Exhibit B1 p9).
57. Council believes that the character, scale, size, bulk and design of this three storey development is not in keeping with the established neighbourhood character and streetscape of the locality and will have a detrimental impact upon the existing and future amenity of the neighbourhood. It is too broad, out of context, does not relate to, and overlooks, the neighbours, so that it is itself “ not a good neighbour ”.
58. The location of balconies on the northern elevation, such that they directly overlook adjoining properties Nos. 8 and 10, is quoted as support for the proposition that the design has had minimal regard to the impact on adjoining properties.
59. It is clear to the court, and conceded by the applicant, that this proposal, even as now amended, does not relate to the existing physical character of Shirley Street and Janell Crescent and the surrounding neighbouring context. The applicant concedes that Shirley Street is currently a “ quiet residential street ” and that there is “ nothing special ” about it.
60. However, the applicant contends that the development complies with the general planning policy and strategy applicable to the area. The thrust of the various planning documents acknowledges that an area such as this is one where change is desirable. In fact, it has been recognised, as an area of “ high opportunity ”, as distinct from high priority. The applicant has submitted an appropriate design for the site which is an ideal location for a three storey residential flat building. The bulk etc. of the project are inevitable consequences of what is a desirable use for this land, as the construction of residential flat buildings and apartment projects near railway stations, main roads and commercial centres is a significant and desirable planning policy direction. The site is adjacent to relevant rail and other services, parks, etc, and the design has regard to all the issues recognised in the planning instruments and other relevant documents.
61. The applicant also asserts that it has specifically addressed all minor non-compliances complained of.
Specific Matters
62. The proposed development has eight balconies that encroach into the 10 metre front setback of Shirley Street to a maximum of approximately 0.8 metres. Janell Crescent is a secondary frontage and requires a 6 metre setback. The north-eastern corner of the building encroaches into this setback to a maximum of 2.25 metres. Using the sloping site formula in s 3.3.2 of the DCP, the southern elevations involve encroachment by up to 1 metre. These encroachments are depicted in Figure 8 of Exhibit B1 .
63. In terms of overlooking, a total of 10 balconies on the first and second floor on the northern elevation overlook No.8 Shirley Street from a distance of about 6 metres from the boundary. The maximum height of the building above natural ground level is 11.5 metres, so it is contended that this has a significant impact on the privacy of No.8.
64. There is a dispute between the parties as to whether the “ roof ” of the underground carparking area protrudes above natural ground level. The evidence shows that if there is in fact any protrusion it is quite minor and not general in nature.
65. Paragraph 5 of DCP 23 sets out “ Information required for a development application ”, including a site survey plan, a site analysis plan, shadow diagrams and a landscape plan.
66. Council criticises the proposal for lacking a comprehensive site analysis, which the Council says it requires in order to assess the site in relation to the surrounding immediate neighbourhood in terms of existing built form, the character of the immediate area, and potential impact - the three tests against which Hall alleges this development fails.
67. Council’s objection to the inadequacy of the site analysis is really conceded by the applicant, at least in so far as it admits not having fully met the requirement set out in Appendix 1 of the DCP.
68. Mr Goldsmith for the applicant, says that the issue is “ whether or not the proposal is an appropriate response to site conditions ” rather than whether or not a document was submitted. In cross-examination he agreed that the site analysis submitted did not address the detail in the Appendix and he acknowledged that the erection of a three storey building in the area would be “ a significant change but contemplated by the planning documents ” and part of “ the evolution of the city ”.
69. The project as amended does not comply in respect of the frontage requirement to Janell Crescent, the setback from that frontage and the side setbacks specified (see Mr Hall’s evidence Exhibit B1 Volume 1 p 25).
Local objectors and traffic concerns
70. Among the issues raised by Council but not ventilated to any great extent in the hearing of the appeal were those involving traffic and parking. These were major concerns expressed by resident objectors, but they complain also that there are no shops that residents can use in the near vicinity for everyday items such as bread, milk, meat, fruit and vegetables. “ Carlingford Court ” is said to be a 15 minute walk from the subject site.
71. The court has examined and closely considered all the objections which comprise attachments A5 and A6 to Volume 2 of Exhibit B1 . All have a similar flavour but the court notes there is no objection from No.8. Many of the residents have been long term occupants of their properties which have “ a very low rate of turnover. Projects such as this should be in the commercial areas divorced from established residential homes ”.
72. Many objectors had the opportunity to participate and speak in a conciliation conference on 24 February 1999 to amplify their objections ( Exhibit B1 Volume 2 Attachment A7).
73. Many of them emphasised the narrowness of Shirley Street apart from its pavement conditions. One observed that Mobbs Hill is particularly steep at this point and Shirley Street has been cut into the eastern side so that the present one storey buildings on the eastern side tower a full storey above those on the western side. What is now proposed is a three storey building on such elevation. It is suggested that this may deprive those opposite of approximately two hours of morning sunshine in the winter months.
74. When the view took place on Tuesday morning 28 September 1999 at 9am the traffic volumes, including trucks, on Pennant Hills Road near the site could only be described as huge.
75. The Council’s Traffic Report from ERM Mitchell McCotter Pty Ltd dated September 1999 was tendered as Exhibit B8 and for completeness the applicant’s expert traffic reports were also tendered ( Exhibits A2 and A6 ).
76. The spokesperson for the residents, Donald Harker , attended court and gave oral evidence of his concerns. Mr Harker and his solicitors had made submissions in November/December 1998 before the amendment of the proposal, and then again in July 1999 ( Exhibit B1 Volume 2). He lives adjacent to the Uniting Church and, although his address is 29 Lloyds Avenue, his property fronts Pennant Hills Road, and backs onto No.2 Shirley Street.
77. Mr & Mrs Harker have resided there for 40 years “ when we purchased it was semi-rural and we have been forced to accept significant changes over the years. The aspect of our home to the north and east at least has been over other low level single dwellings contrasting to the high level church on one side. Our amenity has been challenged by the large building on one side but has been made more bearable due to the open aspect to the rear and to the east ”.
78. The main objections he expressed on behalf of his neighbours went to bulk, overshadowing and privacy. The proposal would not blend into the locality and he was concerned that it would become stage 1 of a redevelopment of the whole area, leading to the potential isolation of his property between the church and a series of substantial dense developments. He also complained that medium density developments were characterised by the failure of residents to take off the street their garbage bins.
79. Shirley Street was built in the 1940’s and now has “no standing” restrictions along the whole of its relevant side. Mr Harker testified to major increases in the number of cars parking in Boundary Road and Lloyds Avenue and the pressure that would be put to bear for parking on the western side of Shirley Street if the project goes ahead. He produced several sheets of photographs to illustrate his evidence about the pressure of traffic and parking ( Exhibit B14 ), indicating the blindness of the corners and the congestion in the street. Those photographs were taken on Saturday afternoon and Sunday morning.
80. He also gave useful evidence as to the volume of traffic on Pennant Hills Road and the difficulties experienced there in peak hour when more than 7 vehicles are wishing to make a right-hand turn out of Pennant Hills Road into Marsden Road. Those circumstances make it harder for even the existing population to exit Shirley Road.
81. He also complained that the pedestrian traffic approaching the station was forced by the current conditions to move in single file.
The Council’s case
82. Council relied upon the evidence of Mr Greg Hall , its Town Planning Coordinator, and its consultant Architect, Mr Greg Pickworth . Their comprehensive Statements of Evidence (Hall Exhibit B1, and Pickworth Exhibits B9 and B11 ) were supplemented by oral testimony, and by Pickworth’s computer graphic demonstration and printouts ( Exhibits B10, B13 and A4 ).
83. Mr Hall and Mr Pickworth assessed the proposal in the context only of what is now in place, and concluded that the development did not meet the requirements of the planning environment and was not compatible with the environmental amenity of the Shire. The local streets have a clear character and identity and this project is well out of step with them. It must be compatible with adjoining development, not some future prospective development.
84. Mr Hall acknowledges that the subject site is in close proximity to services such as shopping centres and transport routes. He noted that the most recent changes in the immediate environment were two storey townhouses which he considers “ to be more in keeping with the existing built environment, when compared to the scale and bulk of the proposed three storey residential apartment building ”, and he says “ it is my opinion that a transition is beginning to be established [ie the transition outlined in DCP 23 from single dwelling areas into areas of three to four storeys located close to commercial areas] and that the areas of Shirley Street and Janell Crescent is more appropriate for two storey scale of development such as town houses …”.
85. In his Statement of Evidence, Mr Hall dealt with each issue in the Amended Statement of Issues. His opposition to the proposed development is based on assertions that it:
1. Is not in keeping with the established immediate neighbourhood character of Shirley Street and Janell Crescent.
2. Is an inappropriate form of development based on its character.
3. Is of a size/bulk which is not compatible with the existing built forms in the locality.
4. Will impact on the privacy of adjoining properties.
86. From these he concludes that the proposed development does not maintain or enhance the local and environmental amenity and is inconsistent with the aims and objectives of the LEP.
87. His statement analyses “ the established neighbourhood character and streetscape of the locality ” which he describes as “ its unique character of a small quiet unobtrusive residential street ”. He expects more two storey development in Shirley Street which is all that would be supported by the existing bulk, scale and form of buildings in Shirley and Janell Crescent.
88. The bulk and scale of the development will “ dominate and be out of character ”. It will present “ as an alien and unacceptable building form ”.
89. Mr Hall’s concerns regarding the DCP are summarised in a chart on p 25 of his Statement of Evidence.
90. Mr Pickworth has no planning qualifications, nor has he worked for Councils and assessed development applications, but he is an Architect with broad qualifications and experience. He asserts that Shirley Street and Janell Crescent represent part of a physical and social residential heritage of the Shire and that this environment will be significantly diminished by the proposal which fails to satisfy the aims and objectives in LEP 1991 and DCP 23.
91. The proposal is not sympathetic with the existing streetscape character of Shirley Street or Janell Crescent and accordingly will not contribute to defining the existing environment, nor facilitate acceptance of diverse housing form. The proposal will not contribute to the long established physical and social environment. In fact, it will diminish the streetscape environment by presenting an unattractive, unsympathetic building bulk, by reducing the amenity of the adjoining residence and by providing a precedent for similar undesirable development.
92. Pickworth identifies four specific concerns:
(a) excessive bulk in a fundamentally single storey environment
(b) adverse impact on 8 and 10 Shirley Street and 6 Janell Crescent
(c) social impact on their environments
(d) potential as a precedent
93. He regards the townhouse developments nearby as well designed within an established streetscape but this proposal as a poorly designed three storey walk up development. To bundle up three storey walk-ups and townhouses into one medium density group is not regarded as appropriate in planning terms.
The applicant’s case
94. The applicant was represented by Mr Bruce Goldsmith who was also its key witness. Mr Goldsmith was well aware of the contents and importance of the recent Practice Direction regarding expert witnesses and their duties to the court, and he submitted himself for cross-examination.
95. It is Mr Goldsmith’s submission that the development complies with the general planning policy and strategy for the area. It is an appropriate design in an ideal location for such a project. Its bulk is an inevitable consequence of the appropriate use of this land and the character of the proposal must be viewed against not only the existing streetscape, but the likely future environment.
96. The objectives of the zone must be read in conjunction with the range of permissible uses. As residential flat buildings are permissible in this zone it is illogical to suggest that this particular use should be broadly considered inconsistent with the zone objectives. If a use is broadly incompatible, it should be prohibited in the zone. Of the four residential zones in Baulkham Hills, residential flat buildings are allowed in only two and prohibited in the others. As the only other zone in which residential flat buildings are permitted is a tourist village zone, the primary purpose of residential 2(a) must be to provide the majority of residential flat buildings in the shire. The DCP makes specific reference only to the 2(a) zone.
97. Mr Goldsmith points out that the proposal complies with Council’s density, site, area, height, landscaped area and parking requirements. Reducing its bulk and scale would represent a significant underdevelopment of the site. It provides a good transition between the lower density development to the north and east and the higher intensity uses to the south and the west. Objections to it relate more to the Council’s planning controls, than the identification of any specific impact.
98. This proposal serves the wider public interest in that it provides for the efficient use of land zoned for medium density housing purposes, without unreasonably affecting the amenity of surrounding properties. It should not be penalised on the basis that it is not yet surrounded by medium density. It is likely that Nos. 8 and 10 will eventually be redeveloped, probably for townhouses, and there is redevelopment potential on the opposite side of the road as well. It is part of the developing character of the area.
99. He relies on the minor nature of the non-compliances in the setback area. The applicant is comfortable with all suggested conditions except No.51 and suggests minor amendment to the Janell Crescent elevation to improve the relationship between the proposal and existing housing in that street (Annexure 3.0 to Exhibit A1 ).
Consideration
100. The applicant is entitled to make an application such as this, but the zoning does not establish an automatic entitlement to have it approved. It is up to Council and the court to go beyond the simple “ticking of boxes” in respect of items in such documents as development control plans. (In this regard see the decision of the High Court in Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142).
101. The planning controls require the assessment of the application in its context. One issue is whether “the neighbourhood” is to be regarded as the neighbourhood as it currently exists or as it is seen as likely to exist in view of the planning instruments.
102. The situation faced by the Court in this case is to be contrasted with that dealt with by Bignold J recently in Ian Ross Constructions Pty Ltd v Blacktown City Council [1999] NSWLEC 235.
103. In that case His Honour refused consent to a proposal for two groups of two storey townhouses. Despite a longstanding objective of enabling “ sensitive infill development of … housing types ” other than single dwellings in a predominantly detached dwelling area, the relevant LEP sought to maintain that predominant single dwelling character by at the same time prohibiting residential flat buildings.
104. The Council has moved - in response admittedly to some State Government pressure, but nevertheless steadily - towards increasing density in areas identified in its Study as exhibiting “ high opportunity ” for such uses. [par 27]
105. While the Council evidence in this case urged that traditional single storey detached dwelling areas should undergo a phased and gradual “ transition ” to somewhat higher density, such as is currently occurring nearby this site, its documents go further.
106. In essence those documents identify the precinct surrounding the subject site, where population has been falling, as a “ high opportunity ” area for projects such as that proposed in this case. [par 41]
107. The Court thinks it is quite artificial to discount from “ neighbourhood ” those projects of a similar nature across Pennant Hills Road or around several nearby corners, and, likewise, artificial to draw too great a distinction between what could quite appropriately be built on this site and what has been built nearby, in Boundary Street, albeit within a different zone.
108. Some shortcomings (such as the pressure on the arterial road network) have been identified but this specific area was still rated virtually as high as it could be in the Study [par 44 ff]. In addition this sort of development in this sort of location is envisaged, supported and even called for by the DCP [par 31].
109. This proposal complies with the overwhelming majority of the specifications stipulated in DCP 23. Such discrepancies as there are, or are thought to be, namely intrusions into setback areas, and possible protrusion of the basement roof from the ground level, are minor.
110. The location is a classic fit to the parameters for the development of such a project - proximity to commercial and community facilities and transport nodes.
111. The Council documents clearly contemplate aggregation of sites in such precincts to get to the requisite 3,000 square metres, but says to the court in this case that the residential development on the other side of Pennant Hills Road is not part of the neighbourhood because Pennant Hills Road is such a natural barrier.
112. The “ surrounding development ” to be considered pursuant to DCP 23 must be that of a traditional suburban area in transition to a higher density , not as it stood when Mr Harker moved there 40 years ago.
113. This site is within easy walking distance on a flat surface to Carlingford railway station, which looks like assuming greater importance in the transport infrastructure of the city.
114. While Shirley Street looks to me to be sorely in need of repair, it has easy access to Pennant Hills Road, except when the traffic conditions are poor, so access to and from a denser residential development in this area is clear. Alternative road access and egress are available.
115. The presentation by Mr Pickworth, contrary to its intent, highlighted to the court the obvious advantages of such a site for such a development, and the court must have regard to the planning environment sought and envisaged when the Minister exempted the Council from SEPP 53.
116. While this may become the first three storey residential flat building in this 2(a) sub-precinct, there will never be any if none is ever allowed as the first. One may well ask: If “ high opportunity ” is to be seized anywhere in the precinct CF4, on what ground would this site, as it will be appropriately aggregated, be excluded?
117. It is clearly in the public interest that some of this area be redeveloped to a higher density and I do not see how, despite its greater size, the “ presentation ” of this proposal will be in any way “ inferior ” to that of No.12 Shirley Street.
118. Accordingly, I have determined that the appeal should be upheld and development consent granted, on conditions agreed between the parties and amended as suggested by Mr Goldsmith. [par 99]
119. The orders of the court will be:
1. The appeal is upheld.
2. Development Application No.1566/99/HB is determined by the grant of consent to the proposal to construct an apartment building with associated parking on lots 28 to 30 in Deposited Plan 24777 and lot 6 in Deposited Plan 30115, on the conditions set out in attachment A to this judgment.
3. The exhibits may be returned.
120. There will be no order as to costs.
CONDITIONS OF CONSENT
2-6 SHIRLEY STREET & JANELL CRESCENT, CARLINGFORD
Matter No. 10112 of 1999
ADDITIONAL MATTERS AND ADVICE
1. The development being carried out substantially in accordance with the approved plans No. SA01, DA01C, DA02C, DA03C, DA04C, DA05C, DA06C and DA08D, except where those plans are to be amended by these conditions of consent.
2. The provision and maintenance thereafter of 52 off-street car parking spaces including 14 designated visitor spaces which are to be available at all times to visitors.
3. Submission to, and approval by, Council of a construction certificate. Plans submitted with the construction certificate are to be amended where necessary to reflect changes to the approved plans referred to in condition 1 required by these conditions of consent.
4. The provision of a garbage and recycling compound to the satisfaction of Council. In this regard the applicant shall liaise with Council’s Waste Management Officer prior to the preparation of Construction Certificate plans. The structure shall be located adjacent to the driveway area and suitably landscaped and mounded.
5. A formal subdivision application is to be submitted to Council in respect of any proposal to strata title subdivide the approved development.
6. Road and drainage construction works are to be provided by the applicant in accordance with;
i) Council’s “Design Guidelines - Subdivisions/Developments” (June 1997).
ii) Council’s “Works Specifications - Subdivisions/Developments” (August 1997).
and are to include:-
a) The removal of disused gutter and footpath crossings and the replacement of such gutter crossings with full kerb together with the restoration of the adjoining footpath area.
7. Footpath formation to the full frontage of the site, including the adjustment and/or relocation of services, as necessary, to the requirements of the appropriate Service Authorities. All costs are to be borne by the Developer.
8. Concrete footpaving 1.25 metres wide to the full frontage of the site in Shirley Street and Janell Crescent.
9. Medium duty gutter and footpath crossings at all points of vehicular access to the site. Construction is to be carried out in accordance with Council’s Specification For The Construction of Footpath Crossings (January 1997).
10. Heavy duty gutter and footpath crossings at all points of service and garbage truck access to the site. Construction is to be carried out in accordance with Council’s Specification For The Construction of Footpath Crossings (January 1997).
11. Sealed or concrete driveways, parking and manoeuvring areas. All parking spaces are to be designed and permanently marked in accordance with Council’s Development Control Plan No 102 - “Car Parking”. All driveways and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall. This pavement design must include the vehicular or garbage truck loadings referred to in the above conditions. Car parking spaces adjacent to solid walls are to be 300mm wider. The visitors spaces adjacent to the walkway to the pump/switch rooms are to have wheel stops.
12. Headroom is to be provided to all undercover carparking spaces in accordance with Australian Standard AS 2890.1 - 1993.
13. Carparking spaces for the disabled are to be provided in accordance with Australian Standard AS 1428.1.
14. Suitable grade transitions are to be provided to ramps and access driveways in accordance with Australian Standard AS 2890.1 - 1993 (Clause 2.5.3(c)).
15. In respect of the submitted plans:-
a) Garbage truck access and manoeuvring areas at operational grades are to be provided to the garbage areas, having compatible pavement and loading to the heavy duty driveway.
16. i) On-site stormwater detention is to be provided in accordance with Council’s adopted policy for the Upper Parramatta River Catchment and Council’s “Design Guidelines - Subdivisions/Developments” (June 1997). The stormwater outlet pipeline is to be connected and the existing stormwater pit in Shirley Street.
ii) A “Positive Covenant” under Section 88E of the Conveyancing Act, 1919 is to be established over the title of the property to ensure the maintenance of the on-site detention structure.
iii) A suitable “Restriction-As-To-User” is to be created over the on-site stormwater detention structure, that restricts development and/or the varying of the finished levels of the structure.
17. The entry driveway to be 6.6 metres wide with 6.0 metres between kerbs.
18. The grade of all pedestrian ramps, intended for use by disabled persons, is not to exceed a maximum of one (1) vertical in twelve (12) horizontal. Such ramps are to be designed in accordance with Australian Standard AS 1428.1.
19. In order to provide a consistent and accurate system of house numbering throughout the Shire, house numbering has been provided as a condition of this consent. The responsibility for house/unit numbering is vested solely in Council and as such, the house numbers as issued are to be displayed on all units resulting from this approval.
20. All engineering works associated with the development are to be carried out under the supervision of a practising Professional Engineer .
21. The demolition of the existing dwellings and outbuildings shall be carried out in accordance with Australian Standard AS 2601-1991: The Demolition of Structures. No demolition materials shall be burnt or buried on site. The person responsible for the demolition works shall ensure that all vehicles leaving the site carrying demolition materials, have their loads covered and do not track soil or waste materials onto the road. Hazardous and/or intractable wastes shall be disposed of to the satisfaction of Council's Manager - Environmental Protection. Should the demolition works obstruct or inconvenience pedestrian or vehicular traffic on an adjoining public road or reserve, separate application shall be made to Council to enclose the public place with a hoarding or fence.
22. The building shall be a minimum Type A construction in accordance with the Building Code of Australia, as applicable to a Class 2 building.
23. Emergency lighting and exit signs shall be provided in accordance with Clause EP 4.1 & EP 4.2 of the Building Code of Australia.
24. Fire hose reels to be installed in accordance with Clause EP1.1 of the Building Code of Australia.
25. Hydrants to be provided in accordance with Clause EP 1.3 of the Building Code of Australia.
26. Portable fire extinguishers to be provided in accordance with Clause EP1.2 of the Building Code of Australia.
27. Exit doors from the foyers are to swing in the direction of egress.
28. Required balustrades shall comply with Part 3.9.2 of the Building Code of Australia (Housing Provisions).
29. All stairs provided in the building shall comply with Part 3.9.1 of the Building Code of Australia (Housing Provisions).
30. The walls between sole occupancy units shall extend from the footings to the underside of the roofing material, and have a minimum fire resistance level of 60/60/60. Roof battens up to 75mm x 50mm may cross the separating wall subject to the gaps being fire stopped. At the intersection of the separating wall and an external brick veneer wall, the gap shall not exceed 50mm, and shall be fire stopped and flashed.
31. Noise transmission to be controlled between sole occupancy units in accordance with Part F5 of the Building Code of Australia.
32. A door in a required exit, forming part of a required exit or in the path of travel to a required exit must be readily operable without a key from the side that faces a person seeking egress, by a single hand downward action or pushing action on a single device which is located between 900mm and 1.2 metres from the floor.
33. Emergency lighting and exit signs shall be provided in accordance with Clause EP 4.1 & EP 4.2 of the Building Code of Australia.
34. Doorways that open to fire-isolated exits shall be protected by self-closing or automatic 60/60/60 fire doors in accordance with Clause CP8 of the Building Code of Australia.
35. In a building under construction, fire fighting equipment shall be provided in accordance with Clause EP1.5 of the Building Code of Australia.
36. Pools to be fenced in accordance with Section 7 of the Swimming Pools Act, 1992 and to Australian Standards 1926-1986. Such fence shall be provided with a self-latching and self-closing gate, opening outwards, capable of being opened from the pool side only and with provision for permanent locking when not in use. Refer Australian Standard 1926-1986.
37. The provision of a suitable poster showing details of resuscitation techniques shall be provided, such poster to contain the advice that "Young children should be supervised when using this swimming pool".
38. An automatic fire suppression system shall be installed in the building in accordance with EP1.4 of the Building Code of Australia.
39. Exit doors serving at discharge level are to swing in the direction of egress.
PRIOR TO ISSUE OF THE CONSTRUCTION CERTIFICATE
40. The provision of erosion and sedimentation controls. Details to be shown on plans submitted with the Construction Certificate.
41. Adequate natural or mechanical ventilation is to be provided to the basement car parking area. Details to be submitted with the Construction Certificate.
42. A plan (to scale) for the landscaping of the site in accordance with Development Control Plan No.107 (Landscaping) being submitted to, and approved by, Council or a suitably qualified landscape architect or experienced horticulturalist prior to the issue of construction certificate. Details shall include:-
In this regard the Deodar Cedar located in front of No. 2 Shirley Street and the Photinia hedge in front of No. 6 Shirley Street are to be retained and incorporated into the landscape plan.(i) all existing trees to be retained, landscape features and prominent structures.
(ii) a schedule of proposed planting, including botanic name, common name, expected mature height and staking requirements;
(iii) details indicating a minimum of 300mm of good quality topsoil to all garden beds;
(iv) details indicating a minimum of 150mm of good quality topsoil to all common open space areas;
(v) all garden bed areas to be clearly defined by brick, concrete or timber edging with its top edge finishing flush with the surface of adjacent grass areas.
(vi) provision of dense screen planting of tall shrubs at close centres in garden beds not less than 2.0 metres wide to the sides of the building.
(vii) provision of a continuous evergreen screen of trees capable of growing to 10 metres in height to the side boundaries of the site.
(ix) provision of an irrigation system to all landscaped areas on the site.(viii) provision of not less than 400mm depth growing medium to any proposed podium planter beds contributing a planted screen to adjoining residential areas.
43. Submission of a bond or bank guarantee in the amount of $5,000. for the protection of the following trees and shrubs:
a) Cedrus deodora (Deodar Cedar) in front of No. 2 Shirley Street;
The bond shall be refunded 5 years following final inspection providing the trees have been retained in good health.
44. Full details of boundary fencing shall be provided. Fencing shall provide an effective height of 1.8 metres and be of materials to Council’s satisfaction. All fencing shall be provided at the expense of the applicant.
Appropriate fencing shall be provided in accordance with the Building Code of Australia adjacent to any drop in surface level greater than one (1) metre.
45. All building material shall be compatible in type, colour and texture throughout the whole of the project. Details of colour and type of building materials to be submitted prior to the issue of a construction certificate.
46. A contribution ($76,906.85) being paid to Council prior to the issue of a construction certificate in accordance with Section 94 of the Environmental Planning and Assessment Act, 1979, to provide for the increased demand for public amenities and services resulting from the development.
The applicant is advised that the above contribution amount consists of $4,795.99 for each of the 3 bedroom units, $3,729.31 for each of the two bedroom units, less $6,216.87 for each of the existing allotments. Payments comprise of the following:-
Per 3Br Unit Per 2Br Unit Total
$ $ $
Open Space (Land) 4556.00 3543.00 96,684.00
Open Space (Embellishment) 134.67 103.27 2,846.21
Community Facilities 103.27 80.99 2,196.97
Studies 2.05 2.05 47.15
Total $101,774.33
Less existing allotments 24,867.48
TOTAL $76,906.85
The figures mentioned above are based on the current rates and applicants should be aware that the contribution will be based on the rates at the time of payment which will not necessarily be those mentioned above.
This condition has been imposed in accordance with Contributions Plan No.7.
Prior to payment of the above Section 94 contribution, the applicant is advised to refer to the Customer Service Centre for completion of the payment form. The cashier will only accept payments which are accompanied by this completed form.A copy of this plan may be inspected at the Customer Service Centre, of Council’s Administration Complex, corner of Carrington and Showground Roads, Castle Hill
between the hours of 8.30 am and 4.30 pm weekdays.
47. The submission to Council of detailed engineering plans prepared in accordance with Council’s “Design Guidelines - Subdivisions/Developments” (June 1997), that include the proposed construction works referred to above, together with payment of a Construction Certificate fee of $250 as prescribed in Council’s Schedule of Fees and Charges. Alternatively, should the nominated Principal Certifying Authority be other than Council, the fee shall be by agreement.
48. The lodgement of a suitable undertaking, under the common seal of the company (if work to be done by a company), to:-
i) Effect the consolidation of allotments, prior to occupation and/or operation of any part of the approved development.
ii) Complete all required engineering works within the site boundaries. Such works to be completed prior to occupation and/or operation of any part of the approved development.
49. The submission to Council of a Draft 88B/E Instrument/Request document, together with a $1,000 cash bond for the creation of a Positive Covenant and Restriction As to User, in respect of the on-site stormwater detention system and apartment building structures. Council will refund the cash bond upon registration of the 88B/E Instrument/Request document at the Land Titles Office.
50. The submission of a cash bond or acceptable bank guarantee in respect of construction works external to the site. The amount of such bond will be assessed on the submission of satisfactory engineering construction plans.
Please note: If submitting a Bank Guarantee:
1. The Bank Guarantee will only be accepted direct from the issuing bank.
2. The Bank Guarantee must have no expiry date.
3. The Bank must quote Council's reference (1566/99).
4. Should it be necessary for Council to uplift the guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken.
No Bank Guarantees will be accepted direct from the applicant.
51. The elevation to Janell Crescent is to be amended in accordance with the attached plan which was Attachment 3.0 to Exhibit A1 .
PRIOR TO ANY WORK COMMENCING ON THE SITE
52. The preservation of trees in accordance with Council’s Tree Preservation Order which prohibits the ringbarking, cutting down, topping, lopping or wilful destruction of trees except with the prior approval of Council. All trees to be retained are to be protected by paraweb fencing, firmly staked four (4) metres from the trunk of the tree and 2m from the base of the photinia hedge. This staked area is not to be used for the stockpiling of any material or vehicular and pedestrian access that will compact the soil.
53. Any excavated material not used in the development is to be disposed of to the satisfaction of Council. Details of sites for the disposal of the excavated material, are to be submitted and approved by Council prior to the commencement of construction works.
54. The submission to Council of a certificate from the Principal Certifying Authority or an Accredited Certifier, that all erosion and sedimentation control devices have been satisfactorily installed.
55. The submission in writing to Council of the name, address and contact telephone number of the supervising professional engineer or registered surveyor.
56. The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council’s Schedule of Fees and Charges.
57. An approved temporary closet connected to the Sydney Water Corporation, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.
58. Duplicate copies of Structural Engineer's details of footings, concrete beams, slabs and stairs, retaining walls, structural steelwork, roof timbers and roof construction to be submitted to the Principal Certifying Authority prior to work commencing.
The details shall also include certification of the required FRLs of the structural members in accordance with the Building Code of Australia.
59. Notification in writing of the builders name, address, telephone and fax numbers to be submitted to the Principal Certifying Authority prior to work commencing.
DURING CONSTRUCTION
60. The Principal Certifying Authority or Accredited Certifier will submit to Council satisfactory certificates for the following:-
a) Erosion and Sedimentation Control
b) Final Inspection
c) Concrete footpaving in Shirley Street and Janell Crescent inspection
61. Work on the project to be limited to the following hours:-
Monday to Saturday - 7.00am to 5.00pm;
The builder shall be responsible to instruct and control his sub-contractors regarding the hours of work. Council will exercise its powers under the Noise Control Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.No work to be carried out on Sunday or Public Holidays .
62. The following inspections are required to be carried out during the construction of the building and Pool.
Building:
(a) Pier holes prior to the placing of concrete;
(b) Steel reinforcement in position for footings or slabs prior to the placing of concrete;
(c) Full frame work and brick work complete prior to the fixing of internal linings;
(d) Wet area flashing;
(e) Stormwater drainage lines and disposal trenches prior to covering;
(f) Building complete prior to occupation.
Pool:
a) Pool excavation completion (for fibreglass or fibrecrete construction).
OR
b) Steel reinforcement in position in accordance with approved details.
- c) Completion of pool safety fencing before filling with water.
d) Completion of pool prior to use.
You are advised that Council provides the service of carrying out the above inspections. Council may also issue a Compliance Certificate. (Each of the above shall be at a charge of $55.00). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work.
It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work. NOTE : No building shall be occupied or used prior to a satisfactory final inspection being carried out.
63 The wet areas in the building shall be impervious to water as required by P2.4.1 of the Building Code of Australia (Housing Provisions). On completion of the waterproofing of the wet areas, the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the materials used are suitable for the situation, and that the application and/or installation has been carried out in accordance with Australian Standard AS 3740-1994: Waterproofing of Wet Areas in Residential Buildings.
64. A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Soil Conservation Services and the Department of Conservation and Land Management.
65. An automatic fire detection and alarm system, designed to ensure the occupants are given adequate warning so they can evacuate the building in an emergency, shall be installed in the building in accordance with Part 3.7.2 of the Building Code of Australia (Housing Provisions)/Clause E2.2 of the Building Code of Australia.
66. Additional erosion and sedimentation controls may be required on site as directed by Council's appropriate officer.
67. Your attention is drawn to Clause 78G of the Environmental Planning & Assessment Act Regulation 1997 which requires the following:-
1. The erection of suitable fencing or other measures to restrict public access to the site and building works, materials or equipment when the building work is not in progress or the site is otherwise unoccupied.
2. The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours contact name and telephone number.
68. The building shall be protected from attack from subterranean termites in accordance with Australian Standard AS 3660.1-1995: Protection of Building From Subterranean Termites - New Buildings. ( Note : Council does not permit hand spraying as a stand alone method of termite protection.)
On completion of the installation of the barrier, the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the barrier complies with AS 3660.1.
A durable notice shall be permanently fixed to the building in a prominent location, such as the meter box or the like indicating:-
i) the method of protection;
ii) the date of installation of the system;
iii) where a chemical barrier is used, its life expectancy as listed on the National
Registration Authority label; and
iv) the need to maintain and inspect the system on a regular basis.
69. Light and ventilation to all rooms shall comply with Part F4 of the Building Code of Australia.
70 Survey Certificate to be submitted to the Principal Certifying Authority at footings and/or form-work, such certificate shall set out the boundaries of the site, the actual situation of the buildings and include certification siting levels comply with the approved plans.
71. Details of the proposed mechanical ventilation system shall be submitted to, and approved by the Principal Certifying Authority prior to installation.
72. Submission of a Certificate to the Principal Certifying Authority from a practising Mechanical Engineer (showing name, address, telephone number and initials of qualifications) to the effect that when completed the mechanical ventilation and/or air conditioning installation will meet the requirements of AS 1668.
73. Pool not to be filled with water until a safety fence inspection has been carried out and approval given by the Principal Certifying Authority.
PRIOR TO THE ISSUE OF OCCUPATION CERTIFICATE
74. The completion of all engineering works in accordance with the conditions of this consent.
75. The submission to Council of works as executed plans in accordance with the requirements of Council’s “Design Guidelines-Subdivisions/Developments” (June 1997).
76. The submission to Council of a Compliance Certificate and works-as-executed drawings for the completed on-site stormwater detention system, prepared at Australian Height Datum and certified by the Design Consultant.
77. The submission to Council of a Certificate of Structural Adequacy for the completed on-site stormwater detention structure, prepared by a practising Structural Engineer, qualified for membership of The Institution of Engineers Australia.
78. Provide evidence of registration by the Land Titles Office of the consolidation of allotments.
79. You are advised that the following schedule of "Essential Fire Safety Measures" (services and equipment for life safety purposes) has been attached to this application in compliance with Clause 80C of the Environmental Planning & Assessment Amendment Regulation 1998 "Fire Safety Schedules", so as to ensure the safety of persons in the building in the event of any outbreak of fire. On completion of the erection of the building, the owner shall submit to Council a Fire Safety Certificate. A Fire safety certificate is to state, in relation to each essential fire or other safety measure implemented in the building or on the land on which the building is situated:
(a) That the measure has been assessed by a properly qualified person, and
(b) That, as at the date of the assessment , the measure was found to be capable of performing to a standard not less than that required by the schedule to the relevant approval.
Thereafter the owner shall submit annually to Council a Fire safety statement attesting to the satisfactory maintenance and state of the essential services.
Essential Fire or other Fire Safety Measures :
1) Automatic fire detection and alarm systems
2) Automatic fire suppression system
3) Emergency lighting
4) Exit Signs
5) Fire Doors
6) Fire hydrants systems
7) Hose Reel systems
8) Portable fire extinguishers
80. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council’s Landscaping Development Control Plan.
81. Certificate from a practising Structural Engineer to be submitted to the Principal Certifying Authority on completion, certifying that the work has been carried out in accordance with the structural details approved by Council and is structurally stable.
82. A street number is to be prominently displayed in a conspicuous position on completion of the building.
83. Submission of a Subdivider/Developer Certificate under Section 73 of the Water Board (Corporatisation) Act 1994 prior to the issue of an occupation certificate.
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