Duffmore Properties Pty Ltd v Wingecarribee Shire Council - [2004] NSWLEC 572

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Duffmore Properties Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 572

PARTIES:
APPLICANT
Duffmore Properties Pty Ltd
RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S): 10237 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition of existing dwelling and erection of 20 self-care dwellings - dwelling design - tree loss - neighbour impact - character of development.

LEGISLATION CITED: State Environmental Planning Policy No. 5
Wingecarribee Local Environmental Plan 1989
State Environmental Planning Policy (Senior Living)

CASES CITED: GPC No. 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

DATES OF HEARING: 15-16/09/2004

DATE OF JUDGMENT: 10/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
Moloney & Company
RESPONDENT
Mr D Wilson, barrister
SOLICITORS
B Bilinsky & Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

19 October 2004

10237 of 2004 Duffmore Properties Pty Ltd v Wingecarribee Shire Council

JUDGMENT

1 This appeal involves Development Application No. LUA03/1338 which is for the demolition of two existing dwellings and the erection of 20 self-care dwellings permissible under State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP 5") at Nos. 91 and 91A Kangaloon Road, Bowral.

2 The proposed two-storey dwellings have an average size of 222 m sq. and are contained in a number of separate buildings: one containing four dwellings; three containing three dwellings; one containing two dwellings; and two single detached dwellings. Each dwelling has a private courtyard associated with the internal living areas. There are to be provided 25 resident car parking spaces and three visitor parking spaces. The dwellings are mainly arranged on either side of a central access-way off Kangaloon Road, which provides both vehicular and pedestrian access.

3 The irregular shaped site comprises Lot 1 and 3 of DP 509 882 and has a total area of approximately 9,875 m sq. It is located on the southern side of Kangaloon Road with a frontage of about 33 m and an overall depth of approximately 200 m. There is a natural watercourse, which runs approximately parallel to and 60 m from Kangaloon Road.

4 Being much deeper than other sites in Kangaloon Road this site projects into the Bowral Golf Course and thus has common boundaries with the golf course to the north, west and south. Otherwise, and closer to Kangaloon Road, the site is located in a residential area comprising various forms of housing including detached, cluster and attached dwellings and town houses and a retirement village.

5 At its frontage with Kangaloon Road the site adjoins existing detached dwellings. The locality seems likely to be the subject of some further redevelopment with council presently considering a number of redevelopment applications in the vicinity including an aged care facility and another SEPP 5 proposal.

Statutory provisions

6 The site is zoned Residential 2(a) under Wingecarribee Local Environmental Plan 1989 ("the LEP"). In this zone cluster housing, dwelling houses and units not exceeding two stories for aged persons are, inter alia, permissible with development consent.

7 Clause 9 (3) of the LEP in effect requires that consent shall not be granted unless the proposed development is consistent with the objectives of the zone. The objectives of the 2(a) zone relevant to this application are:

(a) to maintain, and to provide for areas with a low density residential character;
(b) to ensure that any development will not have an adverse effect on the landscape or scenic quality of the area or the amenity enjoyed by residents located within the area.

8 There are no relevant development standards or other provisions in the LEP which are applicable to this proposal.

9 Also applicable to this site are Wingecarribee Development Control Plans Nos. 12, 39, 44 and 49.

10 There are a number of controls including development standards in SEPP 5 which are applicable to this proposal and which are complied with or more than complied with, including: facilities and support services; access generally; and building height site and frontage.

11 The threshold standards in cl 14 (which if complied with cannot form the basis of a refusal) including building height, density and scale, landscaped area and car parking are also more than complied with. In these circumstances it cannot be argued that the applicable zone objective seeking a low-density residential character is critically infringed.

12 It was nevertheless in dispute as to whether the proposal meets the Design of Residential Development requirements in cl 25 of SEPP 5 particularly as to whether the proposed development has given adequate regard to principles involving neighbourhood amenity and streetscape. These principles include an attractive residential environment with clear character and identity, as well as residential amenity aspects associated with setbacks, form and siting, building heights, landscaping, and relationship to boundaries and building line.

13 State Environmental Planning Policy (Seniors Living) ("SEPP SL"), which was gazetted on 31 Mar 2004, is not applicable to this application because cl 6(1)(a) provides that applications made under SEPP 5 but not finally determined before the commencement of SEPP SL continue to be subject to SEPP 5.

14 The application is for "integrated development" because a permit is necessarily sought under Part 3A of the Rivers and Foreshores Improvement Act 1948, the works here proposed being within 40 m of a protected water, comprising the abovementioned watercourse. In this regard, conditions have been included in the draft conditions of consent.

15 The application was advertised on several occasions and more than 20 submissions objecting to the proposal were received. Matters of concern raised in these objections include the following:

16 Whilst the application has not been formally determined by the council Council's Works and Planning Committee on 11 August 2004 resolved that the application should be refused for the following reasons:

· Placement of buildings does not allow for adequate truck turning;
· Compatibility of overall design;
· Plans do not show steps;
· Shadow diagrams are not correct;
· Share way is not satisfactory;
· Conflict between the plans submitted;
· Detention tank is not satisfactory for maintenance;
· Impacts upon significant trees;
· Some accessibility issues.

17 Having failed to determine the application the appeal came to the Court on the basis of a deemed refusal.

18 On behalf of the respondent Council expert evidence was provided by:

· Mr R Smyth - town planner
· Miss K O'Donnell - access consultant
· Mr P D’hondt - arborist

19 On behalf of the applicant expert evidence was provided by:

· Mr D Brindle - town planner
· Mr G Pindar - traffic engineer
· Mr T Lydon - arborist
· Mr T Greer - architect of the proposal
· Mr C Thomas - drainage engineer
· Mr M Relf - access consultant

20 The hearing began on-site and as part of the Court’s inspection of the site and its environs the following residents gave evidence:

21 As part of the case management of this matter the Senior Commissioner determined that the relevant issues were:

22 The Senior Commissioner also identified a number of matters requiring further consultation:

· Detention;
· Disabled access;
· Shadow diagrams/solar access;
· Energy efficiency information (BASIX/Nathers).

23 Having reviewed the evidence provided in relation to these consultation matters and taking into account changes to the proposal and the proposed conditions of consent I have been able to conclude that these matters have now been satisfactorily resolved. Similarly the issues involving the driveway, particularly the turning circle, the share-way and the driveways’ articulation have also been resolved to my satisfaction.

Internal dwelling arrangements

24 A number of the proposed dwellings have their living areas or their main bedrooms at the first floor level and this was criticised as being inappropriate in a development comprising housing for the aged or disabled. The architect explained that his approach was to provide a range of dwelling arrangements with some having an outlook over the golf course. This matter has been considered by the access consultants and is no longer of concern. Taking this evidence into account together with the modifications to several ground floor arrangements, this issue has also been resolved to my satisfaction.

Tree loss

25 In relation to the loss of trees on the site I note that there continues to be some disagreement between the two arborists particularly in relation to trees numbered 47 and 63. The disagreement involves the likely lifespan of these trees taking into account the physical consequences of the proposed development particularly in relation to their root zone. I am nevertheless satisfied that these trees are likely to survive for many years and that together with the other remaining trees and the proposed additional plantings, the landscape scheme as proposed for the site will be satisfactory.

Impacts on neighbour

26 The site adjoining at No. 93 Kangaloon Road to the south will be in close proximity to the proposed driveway and proposed houses 1, 2 and 3 and the owner was concerned about noise impacts and privacy. The closest of the proposed three houses will be more than 16 m away from the existing house at No. 93 and given that there are no bedrooms or living room windows facing to the south, visual and aural privacy should not be a problem.

27 These three houses however have their incorporated garages with south facing garage doors and the vehicle movements associated with these garages together with the vehicle movements generated by the remainder of the development could cause noise and headlight elimination problems. However taking into account that this entire development will only generate up to 3 vehicle trips per hour, the proposed boundary fence and landscaping, this matter cannot warrant any critical concern.

28 Similarly, the proposed fence and landscaping will sufficiently mitigate any impact that might arise as a result of the visibility of houses 1 - 3. Also, proposed house 17 will be separated from No. 93's rear boundary by the 15 m wide riparian zone, which includes the existing watercourse, and there can be no serious concern with this relationship.

29 The remaining issue for the determination of the Court is:

30 As referred to above the relevant objective of the 2(a) zone seeks the protection of the landscape or scenic quality and the amenity of the area.

31 Whilst I accept that the Seniors Living Policy does not apply to this application I see no reason why cl 31 thereof, being within an environmental planning instrument pursuant to s 79C of the Environmental Planning and Assessment Act 1979, cannot be taken into consideration. Clause 31(a) and (c) provides that "the desirable elements of the location's current character" should be recognised and that "appropriate residential character" should be maintained.

32 Clause 25 of SEPP 5 relevantly provides in effect that consent must not be granted unless the proposed development demonstrates that adequate regard as being given to the principles of neighbourhood amenity and streetscape including an attractive residential environment with clear character and identity; appropriate setbacks and wall heights; appropriate building form and siting relative to existing land form; building heights of a compatible scale; and sympathetic planting.

33 Taking all of these requirements together it is appropriate to understand the existing character of the relevant area surrounding the site and to consider the character of the proposal in this context and to thus determine its appropriateness or otherwise. In examining both existing character and the character of the proposal it is necessary to take into account those elements that contribute to and makeup character. Such elements include the following: the nature of the land use; the bulk, scale and physical form of the buildings; the colours and materials used; the settings of buildings including landscaping. However it must be borne in mind that, on the basis of cl 14 of SEPP 5, this application cannot be refused on the grounds of building height, density and scale, and landscaped areas.

34 In taking of these matters into account the extent to which the site and the existing or proposed development on it is able to be seen from the public domain or indeed from neighbouring properties is an important consideration, more so than the notion of character generally.

35 In GPC No. 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268, Roseth SC set out the planning principles for considering the issue of compatibility between a SEPP 5 development and surrounding low-density residential areas. Whilst these principles were not raised in the Statement of Issues they are nevertheless relevant and should be applied. It is also relevant to note that the proposal will have a density no greater than some of the existing nearby residential developments. Relevantly, the judgement identifies the following principles:

The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.

The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.

The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site’s edges to destroying it and planting new vegetation.
The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity.

36 In dealing with the third of these principles Mr Smyth was of the opinion that an improved landscape design utilising existing planting would better screen parts of the development. As for the fourth principle he said that the proposal fails:

… because the proposed building form is so different from others in the locality and is conspicuous to players on the golf course and surrounding residents. Resident objections highlighted this factor… however it is fair to say that the proposal has a clear character and identity, but not one that reflects the local building forms and townscape.

37 He also explained that the dramatic differences between the shapes of the proposed buildings and those in this conservative (not conservation) area were far too great to be acceptable.

38 In dealing with the character question Mr Greer said that:

Consistency the with the local character of the Kangaloon Road area has been achieved through the domestic scale of the proposal, the selection of materials, the retention of many of the significant trees and the considered design of individual dwellings within a landscape setting.

· Corrugated roof sheeting matching the adjoining house at 93 Kangaloon Road.
· Natural stone rubble walls matching the grander houses of Kangaloon Road.
· Bagged and textured render walls matching the newer houses to the southern side of the golf course.
· Timber weatherboards being typical of the 19th century houses in the area.
· Stone flagging to the central communal area is reminiscent of farmhouse court paving.

39 In response to concerns about the relationship of the proposed buildings to the edges of the site Mr Greer pointed out that the majority of the proposed buildings are, in the proximity of the site's boundaries only single storey. Also, the building forms comprise L-shaped dwellings around courtyards and this, together with the single storey aspect, reduces building scale at the boundaries. As for criticisms of the roof forms, he explained that these forms have been generated by the approach of maximising solar access into the courtyards and for convenient and efficient roof water collection.

40 Mr Brindle did not accept that the proposal would in any way exhibit a visual dominance, especially taking into account the part one, part two-storey form of most of the proposed dwellings, the proposed setbacks and the landscaping scheme which comprises the retention of a number of existing trees plus other proposed vegetation including numerous trees. He noted that the canopies of the existing taller trees on the site would do little to screen the proposed development. Also, the landscaped area of the proposal far exceeds that required by SEPP 5.

41 In relation to building form he said that the proposal essentially comprises dwelling houses of part one and part two-storey in a landscape setting with the two-storey elements well setback from side boundaries. The materials to be used are not foreign to the locality and are entirely appropriate within this setting. The fact that the buildings will be able to be seen from the golf course should be of little concern. More generally he noted that the roof forms are modest, contemporary and elegant, utilising traditional materials. He added that the form of buildings in the area was varied as are building sizes, materials and building character.

42 Mr Brindle did not accept that the proposed clusters of attached dwellings would be uncharacteristic in the locality, referring for example to the nearby "The Majors". He also pointed out how the applicant had, in response to particular concerns expressed by the respondent regarding streetscape, provided a pitched roof with a gable for the building closest to the street.

Character conclusions

43 Not being in a conservation area and comprising one and two-storey buildings consistent with the height of buildings in the locality generally, there is nothing to suggest that this proposal would be in conflict with the first Wombarra principle. As for the second principle, and accepting that there are a number of existing developments in Kangaloon Road which are of a much smaller scale by comparison with the proposal I am satisfied that this proposal will be sufficiently visually broken up so that it does not appear as one building. This comes about as a result of the modulation and articulation of the buildings together with the proposed landscaping. This will be so irrespective of whether the development is viewed from Kangaloon Road or from adjoining properties including the golf course. In this context I accept that the proposal would meet the objective of the 2(a) zone to protect the landscape and scenic quality and the amenity of the area.

44 The third principle deals with situations where a site has existing characteristics which would assist in reducing the visual dominance of development. The only characteristic of this site which I could discern as providing any opportunity to reduce visual dominance if indeed any such reduction were required, would be the existing trees on the site. Here I agree with Mr Brindle that these trees would do little to screen the proposal. Indeed it is likely that the proposed landscaping arrangement which includes the retention of a number of trees will, in my opinion, provide an appropriate landscape setting and would provide a greater level of screening. A number of trees are to be removed from this site but on balance the extent of new plantings and tree retention will, within a reasonable time, provide a quality outcome.

45 The fourth Wombarra principle requires that new development should be reflective of the materials and built form of existing buildings in the street and I would expect that this could be extended to buildings in the neighbourhood. As for the use of materials in this proposal I agree with the evidence given by Mr Greer, notwithstanding the extent to which corrugated roof sheeting is to be utilized and the use of vertical, as distinct from horizontal timber cladding, that these are appropriately responsive to those found in the locality.

46 As for building forms I have already, in the context of the first principle, dealt with building height. Also the residential character of this development cannot be in dispute. However what is different about this proposal by comparison with the typical form and style of residential development that appears in this locality is the roof form and the manner in which the materials are to be used on the buildings’ facades. This is perhaps what Mr Smyth was alluding to it when he spoke of a different building form and dramatic differences between the shapes of the proposed buildings and other existing buildings in this area.

47 However the fourth principle recognises that new building forms can be introduced provided that this is done with care and sensitivity. Clearly this proposal will introduce buildings that have some differences but the question to be asked is whether these differences are being introduced with care and sensitivity. If this site were included in a conservation area the test here would be of a higher order but it is not and by comparison some greater flexibility is warranted.

48 As indicated above, cl 31 of SEPP SL provides for the recognition of desirable elements of a location's current character and the maintenance of appropriate residential character. In this regard, leaving aside for the moment to Mr Smyth’s concerns, I am satisfied that the various other aspects of the proposed design, are acceptable. This includes dwelling 1, which has a pitched gable roof very much like other roof forms in the locality and which will be seen from Kangaloon Road. As I have already concluded the materials to be used are appropriately responsive to the locality.

49 However, the way these materials are used is different and the majority of the proposed dwellings have skillion roof forms, (including several roof valleys) which are not the predominant roof form in the locality. However, the modern manifestation of traditional materials on the walls of many buildings whilst not being common in the locality is not inappropriate. Taking a wider view of the proposal I have not been persuaded that these aspects of the proposal would so affect the character and streetscape of this locality as to be unacceptable. The resulting residential character would be somewhat different but will as required produce an attractive residential environment with a clear character and identity and will not be inappropriate.

50 In reaching this conclusion I have given weight to the fact that the proposal is clearly residential in character, has provided appropriate setbacks and wall heights, and an otherwise characteristic built form which does not exhibit an excessive bulk and scale.

51 It is clear that the site is relatively unconstrained and there is nothing about it to suggest that the present design is the only solution. It is also clear that a design could have been produced which more closely mirrors existing surrounding development. But I do not accept that this is necessary.

52 It is therefore the decision of the Court that the appeal should be upheld and conditional development consent granted.

The orders of the Court are that:

1. The appeal is upheld.

2. Development application No. LUA03/1338 for the demolition of two existing dwellings and the erection of 20 two-storey dwellings at Nos. 91 and 91A at Kangaloon Road, Bowral, is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.

3. Exhibit G is retained.

_____________________
T A Bly
Commissioner of the Court
Rjs

Annexure “A”

Conditions of Development Consent

Duffmore Properties Pty Ltd v Wingecarribee Shire Council

1. Compliance

Development is to take place in accordance with the approved plans and documentation submitted with the application and subject to the conditions below, to ensure the development is consistent with Council's consent.

DA00 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA01 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA02 Rev E dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA03 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA04 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA05 Rev E dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA06 Rev E dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA07 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA08 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA09 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA10 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA11 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA12 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA13 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA14 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA15 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA16 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA17 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA18 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA19 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA20 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA21 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA22 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA23 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA24 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA25 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA26 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA27 Rev D dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA28 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA29 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA30 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA31 Rev C dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA32 Rev B dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA33 Rev B dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA34 Rev A dated September 2004 prepared by Tonkin Zulaikha Greer Architects
DA35 Rev A dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA36 Rev A dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA37 Rev A dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
DA38 Rev A dated 4 June 2004 prepared by Tonkin Zulaikha Greer Architects
LDA-01 dated September 2004 prepared by Anton James Design
LDA-02 dated September 2004 prepared by Anton James Design
LDA-03 dated September 2004 prepared by Anton James Design
LDA-04 dated September 2004 prepared by Anton James Design
LDA-05 dated September 2004 prepared by Anton James Design

2. Qualifications and Responsibility for Documentation

Council requires that design plans be prepared to Council's standards by a person, who has proven experience and suitable relevant qualifications in the preparation of plans specifications and any other relevant documentation for land development. All of these requirements are outlined in Council's Development Control Plan No 41.

3. Responsibility for Works

4. Developers Representative during Construction of Works

A minimum of 48 hours prior to commencement of any construction works on site the Developer must nominate to Council in writing their representative (Construction Supervisor) who will be responsible for all aspects of construction and site control, including Traffic Control, Sediment and Erosion Control and liaison with Council Officers and all other Authorities.

· Inform Council in writing of their intention 7 days before entering the site.

The Applicant may be required to arrange for Council to peruse all other contract documentation PRIOR TO THE CONTRACTOR ARRIVING ON SITE TO COMMENCE WORK . (Schedule of Works, Specifications Bill of Quantity, traffic control plan and Soil and water management plan).

5. Hours of Construction Works

6. Demolition

(a) A detailed proposed 'work plan' as mentioned in Clause 1.7.3 to Australian Standard 2601.

(b) A site plan, including details of the surrounding public and private lands, showing the location and nature of proposed protection (people and property) measures and hazard warning measures (example - lights, signs etc).

7. Construction Certificate

Environmental Planning and Assessment Act 1979

8. Other Approvals

9. Occupation Certificate

Prior to Occupation Certificate being issued, an inspection by Council officers shall be undertaken to ensure that all conditions of Council's Development Consent No LUA03/1338 have been complied with.

10. Ground Levels

Natural ground levels are not to be altered or adjusted other than shown on the approved plans without the prior consent of Council.

11. Floor Levels

12. Protection of Council's Road Reserve, Kerb and Gutter and Footpath

Rivers and Foreshores Improvement Act 1948

Each dwelling shall have provision of sufficient space to allow a lift or stair climber to be installed in the event a resident needs such a facility at some time in the future. Details to be submitted to the satisfaction of Council prior to release of the Construction Certificate.

The bridge across the watercourse shall be 3.5m width. A footpath separated by a suitable barrier from the driveway is to be provided across the bridge on the western side. Details to be submitted to the satisfaction of Council prior to release of the Construction Certificate.

The plans that accompany the application for a Construction Certificate shall carry a certificate from a recognised Access Consultant that they comply with the requirements of SEPP No 5 and the relevant Australian Standards notably AS4299 and AS1428.1

The people allowed to occupy the dwellings in the proposal are limited to:

(a) Seniors (aged over 55 years) or people who have a disability and

(b) People who live within the same household with seniors or people who have a disability,

13. Insurance

The property owner / management will be required to enter into an agreement indmenifying Council from any liability for damages incurred as a result of the site’s proximity to a golf course. Proof of indemnity insurance shall be submitted to the satisfaction of Council prior to occupation of the development.

14. Golf Ball Fencing

Fencing shall be provided along the southern, eastern and western fence lines to deter golf balls where appropriate. Details of fencing location, fencing height and fencing materials shall be accompanied by a report analysing likely impacts of balls / paths of travel, to justify the chosen fencing location and height. Details of fencing shall be provided to the satisfaction of Council prior to issue of Construction Certificate. Fencing shall be erected prior to occupation of the units.

Land Title

15. Site Consolidation

The site being consolidated BEFORE RELEASE OF OCCUPATION CERTIFICATE to ensure the use of the land as one allotment is legally recognised and to prevent separate dealings in the existing allotments after the use commences.

Protection of Council Assets

16. Guarantee for Civil Works

Prior to allowing occupation of the building a cash bond or irrevocable bank guarantee is to be lodged for a period of twelve (12) months for a sum equal to five (5) % of the engineering works or a minimum of $1,000 that are to become the property of Council to ensure the effective performance of these works.
LAND AFFECTATION

Geotechnical

17. Placement of Fill on the Development Site

All fill placed on the site shall be placed in a controlled manner in accordance with the requirements of Development Control Plan No 41.

Land Contamination

18. Imported Fill Material

Fill material shall not be obtained from contaminated land (as defined in Part 7A of the Environmental Planning & Assessment Act 1979). All imported fill shall be validated in accordance with NSW Environment Protection Authority guidelines prior to it being brought onto the site.

ENVIRONMENTAL MANAGEMENT
Sediment and Erosion Control

19. Erosion and Sediment Control Plan Compliance

All site works shall be carried out in accordance with the Erosion and Sediment Control Plan. Implementation of the Erosion and Sediment Control Plan shall be supervised by personnel with appropriate training or demonstrated knowledge or experience in erosion and sediment control.

20. Erosion Control

(a) Removal and/or disturbance of vegetation shall be confined to within two metres of the site of required works and the site(s) of permanent accessways.

(b) Topsoil stripped from the construction site shall be stockpiled and protected from erosion until re-use during landscaping. Soil is to be retained within the property.

(c) Stockpiles of construction and landscaping materials, and of site debris shall be located clear of drainage lines and in such a position that they are protected from erosion and do not encroach upon any footpath, nature strip or roadway.

(d) Final site spoil shall be disposed of to conform to the specifications and standards quoted and to any conditions of approval of those measures and must comply with any relevant EPA requirements.

(e) Trenches shall be backfilled, capped with topsoil and compacted to a level at least 75mm above adjoining ground level.

(f) Vehicular access shall be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Where sediment is deposited on adjoining roadways the same shall be removed by means other than washing. All material is to be removed as soon as possible and the collected material is to be disposed of in a manner which will prevent its mobilisation.

Landscaping and Vegetation

21. Large Development Landscaping

Landscaping details to be submitted for approval by the Director Environment and Planning PRIOR TO ISSUE OF THE CONSTRUCTION CERTIFICATE , as follows:

(a) A detailed landscape plan is to be lodged with the Construction Certificate application generally in accordance with Plan LDA-01 dated September 2004 prepared by Anton James Design.

Please note, not all species indicated in Plan LDA-01 dated September 2004 prepared by Anton James Design are suitable species considering local climatic conditions. The landscape plan shall include species more suited to Southern Highlands climate.

(b) The landscaping shall be established and maintained in accordance with the approved landscaping plan.

(c) The detailed landscape plan shall include the proposed species to be used, height and spread at maturity, and a specification for soil preparation, drainage, weed control, watering, fertilising and general maintenance during establishment.

(d) Additional screen planting shall be provided along the eastern and western boundaries.

22. Landscape Bond

The amount of security required is to be returned to Council PRIOR TO RELEASE OF THE CONSTRUCTION CERTIFICATE .

23. Tree Removal/Tree Preservation

(a) All trees identified on Drawing DA 06X to be retained shall be retained.

(b) Tree removal and tree preservation works shall be carried out in accordance with the Site Tree Management Plan prepared by TLC Solutions (Appendix One attached to joint statement prepared by Paul D’Hondt and Tony Lyndon with the following additions:

· The appointed Site Arborist to approve specifications for structural soil with a view to following the following essential steps:

In any case where the proposed use of structural soil fails the above steps the engineering alternative of installing piered and suspended slabs to provide the desired roadway strength with minimum impact on existing soil profiles and tree roots may be applied under the supervision of the Site Arborist.

· Stormwater Management Plans (Figures A, B and C) will be amended to indicate no excavation or other works within the nominated Tree Protection Zones of retained trees, other than works specifically approved by the appointed Site Arborist.

(c) No tree which is to be retained shall be lopped, removed, damaged or destroyed without prior written consent from Council.

24. Disposal of Vegetation

Any trees removed with Council consent and any other vegetation cleared in association with this development shall be disposed of in accordance with the Waste Management Plan approved with this land use application. For minor additions and outbuildings removed vegetation shall be either mulched for reuse on site or transported to an approved waste/recycling facility.

NOTE : No vegetation shall be burnt except with an approval issued by Council under Clause 9 (2) of the Protection of the Environment (Control of Burning) Regulation 2000 .
Waste Management

25. Waste Management Plan

Section 2 of Council's standard Waste Management Plan is to be completed in accordance with Development Control Plan 49 to the satisfaction of Council's Director Environment and Planning, prior to the issue of the Construction Certificate for the development .
CIVIL ENGINEERING WORKS AND SERVICES

26. Provision of Works and Services

The provision, by the Applicant, at their expense, of the following works and services to be documented and constructed in accordance with Council's Development Control Plan Nos 12 and 41, to the satisfaction of the Development Control Engineer. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE the Developer must obtain approval for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications, to Council which justify that the proposed works are in accordance with all Council's standards and all other relevant Codes and guidelines.

27. Water and Sewer Authority Conditions

Prior to issue of a Construction Certificate, the Applicant must obtain approval from Council (as the Water Supply Authority and/or as required under Section 68 of the Local Government Act ) for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications which justify that the required works are in accordance with all Council's standards and all other relevant codes and guidelines.
Stormwater Drainage

28. Construction of Stormwater

Stormwater is to be constructed generally in accordance with the Patterson & Britton Plan outlined in Condition No 1 with the following modification being the stormwater detention basins be modified by means of detailed design to provide a minimum grade of 1% from the invert of the detention tanks to the outlet of the watercourse.

Additional detailed design is to include options to minimise the possibility of outlet blockage and backflow.
Parking, Loading, Access and Roadworks

29. Driveways and Parking

Internal driveways, turning areas and four (4) off street vehicular line marked parking spaces are to be constructed with a permeable surface as shown on plan LDA01.

Along each side of the roadway, and at the crossing point, footpaths shall have a distinctive and continuous colour.

30. Traffic Control Plan

Traffic Control at Work Sites"

31. Turning Circle

i. Sewer Mains

Sewerage mains to serve the development.

Construction of Sewer Side Lines

(a) A new sewer main shall be constructed of 225mm diameter across the site generally in the location shown on option 4 conceptual layout of Patterson Britton & Partners Pty Ltd as proposed alignment and located a minimum of 600mm clear of all buildings. Manholes to be a minimum 1200mm clear of all buildings.

(b) The sewer main is to be constructed to enable future connection of the properties to the east and west.

(c) Upon construction of the relocated sewer main and its connection to the relevant sewage treatment facility the development shall be connect to the relocated main.

(d) Upon connection to the relocated main the existing sewerage pipes shall be capped at the eastern and western boundaries of the site.

The building shall not be erected within 1.2m of the sewer manhole.

a) Water Mains Supply

Water service installation to the development by Council at the Applicant’s cost.

Application form to be completed and fee to be paid in the case of developments.

General

32. Integral Energy Requirements

33. Telstra / AGL - Where Applicable

PRIOR TO THE RELEASE OF THE CONSTRUCTION CERTIFICATE

34. Works as Executed Plans

35. Relocation of Existing Services

36. Certification of Internal Civil Works

On completion of works and prior to occupation, certification from a practising appropriately qualified Engineer shall be submitted to Council detailing that all internal civil works are in accordance with the approved plans and specifications.

CONTRIBUTIONS AND DEDICATIONS

37. Section 94 Contributions

Payment to Council of contributions levied in respect of Sec 94 of the Environmental Planning & Assessment Act subject of this development consent to be made PRIOR TO THE RELEASE OF THE OCCUPATION CERTIFICATE , or as elsewhere specified.

NOTE:

38. Contributions

The contribution by the Applicant of monies for the following designated purposes PRIOR TO THE RELEASE OF THE OCCUPATION CERTIFICATE. The exact amount of contribution will be calculated at the rate applicable at the time of payment and will reflect the current contribution rates, which are reviewed annually. Copies of the Contributions Plans are available at Wingecarribee Shire Council's Administration Building in Moss Vale. The current contribution rate is noted below.
Open Space and Recreation Facilities and Community Facilities Contributions Plan

(Effective 01/07/93)

Public Recreation/Reserves

The payment of a monetary contribution to be applied against the acquisition of land for the purposes of public recreation and/or the improvement and embellishment of public reserves under the care, control and management of Council.

No LOTs/ETs Rate $ Total $ Account No.

15 1,498 22,470 109010.1404.OS01

Family Day Care Centre

The payment of a monetary contribution to be applied against the cost of providing a Family Day Care Centre to service the Shire.

No LOTs/ETs Rate $ Total $ Account No.

15 16 240 109010.1402.FDC01

Youth Centre

The payment of a monetary contribution towards the provision of a Youth Centre.

No LOTs/ETs Rate $ Total $ Account No.

15 41 615 109010.1402.YC01

Central Library Facility Contributions Plan (Effective 23/07/97)

The payment of a monetary contribution to be applied towards the cost of construction of a Central Library to service the Shire.

No LOTs/ETs Rate $ Total $ Account No.

15 303 4,545 109010.1402.CLC01

Roads and Traffic Management Facilities Contributions Plan (Effective 01/07/93)

The payment of a monetary contribution towards the improvement of local roads to which the development has an impact due to the vehicular movements generated by the development.
Road Sub Plan 1

No LOTs/ETs Rate $ Total $ Account No.

15 820 12,300 109010.1406.SP101

Road Sub Plan 2

No LOTs/ETs Rate $ Total $ Account No.

15 1,008 15,120 109010.1406.SP201

Stormwater Drainage Contributions Plan (Effective 21/06/93)

The payment of a monetary contribution towards the augmentation of the stormwater drainage systems within the catchment, of which the development is a part of and has an impact on.

No LOTs/ETs Rate $ Total $ Account No.

15 3,647 54,705 109010.1403.BO1

Administration Contributions Plan (Effective 23/05/01)

The payment of a monetary contribution to be applied against the cost of Contribution Plan Administration.

No LOTs/ETs Rate $ Total $ Account No.

15 336 5,040 109010.1401.CPA01

Resource Recovery Centre (Effective 10/04/02)

The payment of a monetary contribution to be applied against the recoupment of funds for the cost of providing the Resource Recovery Centre.

No LOTs/ETs Rate $ Total $ Account No.

15 73 1,095 109010.1410.RRC01

Animal Shelter (Effective 10/04/02)

The payment of a monetary contribution to be applied against the recoupment of funds for the cost of providing the Shire's Animal Shelter.

No LOTs/ETs Rate $ Total $ Account No.

15 11 165 109010.1411.AS01

NOTE: Payment of the above contributions is to be by BANK CHEQUE OR CASH and is to be accompanied by the attached sheet entitled " Record of Payment of Contribution" . Should the Applicant pay by personal or company cheque the plans subject to this approval will not be available for collection until such time as the cheque has been honoured (ie. a minimum of 10 days).

39. Water Supply Authority Contributions

(Water and Sewer Facilities)

Water Management Act 2000 as amended

The current rates of contribution applicable are as follows:

Water Supply Contributions Plan

The payment of a monetary contribution towards the augmentation of the headworks water supply system that services the development.

No LOTs/ETs	Rate $	Total $	Account No.
15	1,754	26,310	2-75000.1409.WEA01.C131

No LOTs/ETs	Rate $	Total $	Account No.
15	73	1,095	2-75000.1409.WPW01.C131

Sewerage Contributions Plan

The payment of a monetary contribution for headworks sewerage system that serves the development.

No LOTs/ETs	Rate $	Total $	Account No.
15	3,876	58,140	3-65000.1407.SPW01.C141

Compliance Certificate

Compliance Certificate fees are as follows and shall be paid concurrently with developer contributions:-

Water - 141901-1536 $90.00 - Sewer - 141901-1536 $90.00 = $180.00

NOTE : Prior to the final release, you will need to contact Council's Technical Services Division for an inspection to ensure that Council will accept the infrastructure constructed. In response the Manager of Water and Sewer will specify requirements which will have to be met.

In the case of subdivision, the title plan of subdivision will not be certified and released by Council until the Water Management Act contributions have been paid and/or secured and the approval of the Manager of Water & Sewer has been gained for all works related to this infrastructure.

Water Management Act

BUILDINGS

Prescribed Conditions

40. Compliance with Building Code of Australia

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

Design and Components

41. Sample Materials

Details of all samples of all new external building materials and finishes, including their proposed colours, to be submitted to the satisfaction of Council prior to issue of Construction Certificate.

42. Energy Efficient Housing

Development shall take place in accordance with the requirements of Development Control Plan No 39. In this regard, plans, specifications and a NatHERS Certificate showing compliance with the Development Control Plan shall be submitted to the Principal Certifying Authority prior to the release of the Construction Certificate. The hot water system shall achieve at least a 3½ star rating under Development Control Plan No 39. All work shall be completed prior to occupation of the building.

43. Letter Boxes and Street Numbers - Units

44. Television Aerials - Units and Motels etc

45. Fencing - Medium Density

Provision and maintenance thereafter at the developer's expense of permanent and effective screen fencing of 1.8m height timber lapped and capped fencing along the boundaries of the site as shown on Plan LDA01, to maintain the privacy of residents of the site and other properties.

_____________
T A Bly
Commissioner of the Court
rjs

ADVISING:
Council will accept a variation to this condition to reduce the height of fencing to a minimum of 1.5m subject to written agreement between affected property owners.

Fencing need not project beyond the front building line.

46. Access

(i) Private open space – that details of wheelchair access from doorways onto private open space at decks and courtyards be provided at Construction Certificate stage to show that no step or change in level is created at thresholds.

(ii) Private open space – that no private open spaces in the courtyards for dwellings 6, 7 and 8 be increased to a minimum width of 3000mm adjoining the living areas.

(iii) Bathrooms – that the bath tub in the ground floor bathroom in dwellings 14 and 16 will be deleted and a shower provided in this location to comply with AS4299.

(iv) Pathways – that a luminescence contrast of 30% be achieved on all pathways to assist in delineation of footpath as separate from the driveway and that appropriate lighting be provided along pathways.

(v) Dish drain – that details of a continuous accessible path of travel at transition between pathway and driveway, in particular, over the dish drain be provided.

47. Noise

48. The plans shall be amended prior to issue of Construction Certificate in accordance with the Driveway Plan “G Pindar Option 1” attached hereto.

49. Prior to issue of Construction Certificate the ground floors of Units 6, 7, 8, 12, 13, 14, 15, 16 and 17 shall be amended to provide direct access from the bedroom to an ensuite bathroom for that bedroom.

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Citations

Duffmore Properties Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 572

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

3

GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

CITATION:	Duffmore Properties Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 572
PARTIES:	APPLICANT Duffmore Properties Pty Ltd RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	10237 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- Demolition of existing dwelling and erection of 20 self-care dwellings - dwelling design - tree loss - neighbour impact - character of development.
LEGISLATION CITED:	State Environmental Planning Policy No. 5 Wingecarribee Local Environmental Plan 1989 State Environmental Planning Policy (Senior Living)
CASES CITED:	GPC No. 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268
DATES OF HEARING:	15-16/09/2004
DATE OF JUDGMENT:	10/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS Moloney & Company RESPONDENT Mr D Wilson, barrister SOLICITORS B Bilinsky & Co.