George Meli and Lisa Gabrielle Anderson Meli v Randwick City Council - [2004] NSWLEC 433

Land and Environment Court

of New South Wales

CITATION: George Meli and Lisa Gabrielle Anderson Meli v Randwick City Council [2004] NSWLEC 433

PARTIES: APPLICANT:
George Meli and Lisa Gabrielle Anderson Meli
RESPONDENT:
Randwick City Council

FILE NUMBER(S): 10700 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- SEPP1 objection - Whether the subdivision of the land would protect and enhance local amenity.

LEGISLATION CITED: Randwick Local Environmental Plan 1998, (RLEP) - Randwick City Council Subdivision Code, (Code) - State Environmental Planning Policy No 1, (SEPP1)

CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001

DATES OF HEARING: 03/08/2004

DATE OF JUDGMENT: 08/10/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr D Parry, barrister instructed by Mr G Meli
SOLICITORS:
N/A
RESPONDENT:
Mr J Kildea, barrister instructed Ms T Litt, solicitor
SOLICITORS:
Bowen & Gerathy

JUDGMENT:

Appeal No: 10700 of 2004

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

10 August 2004

10700 of 2004
George Meli and Lisa Gabrielle Anderson Meli v Randwick City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Randwick City Council (the council) of a development application to Torrens title subdivide land into two unequal lots and to construct a single-storey dwelling house with double garage on proposed Lot 2 on Bundock Lane within the subdivision of Lot 1 DP 129905, being No 259 Rainbow Street, South Coogee.

2 I visited the land in company with the parties on the morning of the on-site hearing.

3 I have concluded that the SEPP1 objection is well founded and may be upheld in the circumstances of this case, and that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979.

The land

4 The land is situated on the southern side of Rainbow Street midway between Hendy Avenue and Mount Street, South Coogee. It has a width of 13.41m, a depth of 60.81m and an area of some 815.7m2. The land slopes gently down from the street to the rear lane with an overall fall of around 5m. Erected on the land towards the Rainbow Street frontage is a single-storey brick cottage. Access is available off Bundock Lane with all services including postal, stormwater, garbage and emergency are provided within the lane. Under a previous approval of the council it is proposed to alter and add to the existing dwelling on Lot 1 on Rainbow Street.

5 Two large eucalyptus trees stand near the Bundock Lane frontage.

6 Erected on land to the west, is a single-storey dwelling sited towards the Rainbow Street frontage. On land to the east is a single-storey dwelling with basement carpark fronting the Bundock Lane.

7 The area is characterised by single-storey and two-storey dwellings with some apartment buildings interspersed. Lot sizes in the vicinity of varying from between 350m2 to around 900m2.

Relevant planning controls

Randwick Local Environmental Plan 1998, (RLEP)

8 Under the provisions of the RLEP the land is zoned residential 2A and the proposal as a subdivision and development application for a dwelling house is permissible with consent.

9 Clause 2(d) of the RLEP states:

…to ensure that development is carried out in such a way as to allow the economic and efficient provision of public services and amenities…

10 The objectives of Zone No 2A (Residential A) under the RLEP are:

(a)

to maintain the character of established residential areas, and

(b)

to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors, and

(c)

to enable redevelopment for low density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the like, where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development, and

(d)

to allow people to carry out a range of activities from their homes, where such activities are not likely to adversely affect the environment of the locality.

11 Special provisions apply under Part 3 of the RLEP and under cl 21 of that instrument; land may be subdivided but only with development consent.

12 Clause 30 of the RLEP provides the following purpose for the minimum allotment size standard:

To establish minimum requirements for the subdivision of land within residential zones in order

to protect and enhance local amenity

13 Clause 30(1) of the RLEP states:

The minimum allotment size for allotments resulting from the subdivision of land, other than for the purpose of public utility undertakings or roads, within Zone No 2A is 450 square metres and each allotment must have a frontage of at least 12 metres

14 Clause 30(4) of the RLEP states:

The minimum allotment size for the erection of a dwelling house or for an attached dual occupancy within Zone No 2A is 450 square metres and each allotment must have a frontage of at least 12 metres.

15 The objective of the Code is for guidance of council employees and the public so as to achieve a consistency in, and a specific level of, subdivision standards.

16 Under cl 1(a) of the Code, land may not be subdivided in 2(a1) zones unless each separately created lot has an area of not less than 325m2 and a width at the front alignment of 9m.

17 Under the Code the applicable standard is that under cl 1(b) and that land may not be subdivided in 2(a2) zones unless each separately created lot has an area of not less than 450m2 and a width at the front alignment of 15m. The width at the front alignment is greater under the Code than under the RLEP.

18 Under the heading subdivisions to 6.096m wide-lanes and cl C4 the Code states that the council will favourably consider proposals to subdivide land having a frontage to roads 6.096m in width under the following conditions:

19 The Code is silent on other areas of Bundock Lane and elsewhere, does not prohibit subdivision.

State Environmental Planning Policy No 1, (SEPP1)

20 SEPP1 was gazetted 17 October 1980, and under cl 3:

This policy provides flexibility in the application of planning controls operating by virtue of a development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

21 The applicant lodged a SEPP1 objection to cl 30 of the RLEP, to the minimum allotment size and the minimum area for the erection of the dwelling house.

The proposal and its history

22 Development application No 322/2004 was lodged with the respondent council on 3 May 2004, to Torrens title subdivide into two unequal lots and to construct a single-storey dwelling house with double garage on proposed Lot 2 within the subdivision on the land.

23 The proposal is described in plans prepared by Lupu Design: Drawing No: DA 02 Issue C, Site Analysis, dated 5.3.04; DA 16 Issue C, Subdivision Plan dated 5.3.04; DA17 Issue C Drainage Plan, dated 5.3.04; DA 19 Issue C, Landscaping Plan-Bundock Lane; all received by the council on 3 May 2004, and plans prepared by Wincrest Homes titled Site Plan issue C, dated 6.4.04; Floor Plan Issue C, dated 6.4.04; Elevations Issue C, dated 6.4.04; Section & Window Schedule Issue C, dated 6.4.04 and all received by the council on 3 May 2004, [Note: Exhibit A].

24 The proposed allotments would be Lot 1 on Rainbow Street on which there is an existing house and Lot 2 on Bundock Lane upon which is proposed the new dwelling house.

25 There is also proposed a 1.2m wide road widening dedication on Bundock Lane, similar in width to the dedication required by the council on the property to the east when it was subdivided under SREP12.

26 It is proposed to alter and add to the existing dwelling on proposed Lot 1 under the council approval dated 12 September 2003, [Note: Development Consent 03/00169/GA].

27 A SEPP1 objection accompanied the development application for both the subdivision and the dwelling house seeking flexibility in the application of the planning standards.

Notification

28 The application was notified to nearby owners and occupants and the council received three submissions. These were from:

· Mark and Belinda Patterson, No 110 Bundock Street;

· Peter Tighe and Annette Moran of No 116 Bundock Street;

· Andrew and Helen Walker of No 114 Bundock Street.

29 Concern was expressed in respect of:

· overdevelopment of the site,

· laneway access difficulties,

· traffic hazards,

· parking difficulties,

· consistency with previously refused applications,

· overlooking to surrounding properties,

· failure to comply with lot-size controls under the RLEP,

· failure to comply with the subdivision code,

· inconsistent with subdivision pattern within the area, and

· tall eucalyptus would be removed.

30 When the appeal was filed the council had not determined the application.

The hearing

31 The appeal was filed on 10 June 2004 and the hearing was held on 3 August 2004 on-site in the presence of:

· Mr J Kildea, barrister for the council, Level 5 Wentworth Chambers;

· Ms T Litt, instructing solicitor for the council, Bowen and Gerathy;

· Mr S Harding, town planner for the council, Willana Associates;

· Mr M E Neustein, Court-appointed urban planner of NRP Architects and Urban Planners;

· Ms K Bauer, urban planner, observer of NRP Architects and Urban Planners;

· Mr D Parry, barrister for the applicant, Martin Place Chambers;

· Mr G Meli, applicant;

· Mr P Tighe, resident of No 116 Bundock Street, South Coogee;

· Mrs M Mullholland, resident of No 261 Rainbow Street, South Coogee.

32 Mr Tighe, [Note: Exhibit 3] Mr Harding and Mrs Mullholland gave evidence on site. Mr Tighe, who lives diagonally opposite in Bundock Lane, explained his position, as the parties, the Court and residents examined the development from viewpoints along Bundock Lane and on-site. Mrs Mulholland gave evidence while standing on the rear deck of her next-door dwelling in support of the application.

32 The council’s representative sought to tender a statement in reply, filed and served 30 July 2004, prepared by Mr Harding. I upheld the objection of applicant’s representative on the basis that Mr Harding on 23 July 2004, had provided his views in writing to Mr Neustein and those views were before me in Exhibit 1. In addition I was concerned that were I to allow Mr Harding’s reply the applicant might have been prejudiced and might then have needed to bring further expert evidence and so prolong the hearing unnecessarily.

34 Despite this finding, I have taken into consideration the comments of Mr Harding in his communication to Mr Neustein of 23 July 2004, [Note: Exhibit 1 Tab 8]:

All of the issues before the Court deal in some way with the broader objectives to provide a streetscape outcome that is consistent with best planning practice. The issues of precedent and existing character are raised to demonstrate that the outcomes of providing dwellings that front service lanes is second rare and should not generally be pursued.

Council has committed itself to the creation of dwellings fronting the lane between Canberra and Avoca Street and having done so has some obligation to continue. The development of the lane in some of these areas has passed “the point of no return” and will only benefit from the full implementation of lane widening and the creation of a ‘street’ address. The current transition period has resulted in a substandard street with poor streetscape qualities and should not be considered as a precedent for future development.

If the existing development, being a mixture of high front fences and garages intermingled with dwellings, were tested against the current planning guidelines for streetscape outcomes, it would fail. Perpetuating this situation into other laneways would result in poor planning outcomes. The adjoining development at No 261 Rainbow Street is an example of the response to the laneway location where the dwelling has alienated itself from the public domain. The development was also determined prior to the current LEP (in terms of the building form) and was subject to several state policies, which limited Council's ability to influence the nature of the development. The recent subdivision has been undertaken in the context of the buildings on the site having been approved in 1995.

The new dwelling at No 261 is a two-storey dwelling but its presentation to the laneway is predominantly a high front fence, driveway and garaging. This form of development is actively discouraged in most planning documents that deal with new development and streetscape outcomes.

The Council has a demonstrated commitment to urban consolidation and has been exempt from various state planning policies as a result of the implementation of a Housing Strategy. The provision of housing in areas such as at Bundock Street demonstrates this commitment. The site is also adjacent to a medium density zone, which provides a co-ordinated and considered approach to increasing housing stock.

It is not sufficient to simply look at the allotment size in this proposal, it must be considered in the context of its laneway location and the longer-term outcomes if the subdivision is approved. The provision of an extra 10 or 20 dwellings in rear laneways is not necessary in the context of the delivery of dwellings in Randwick and should be discouraged as it results in unsatisfactory planning outcomes.

The issues before the Court pick up on the poor outcomes and include, but are not limited to the following:

· A poor street address with a predominance of high front fences and garages rather than landscaped front yards.

· Poor street surveillance as a result of the fencing and garage structures in the lane.

· New dwellings, which have responded to the low security levels with more front fences, further alienating the public domain.

· The lack of co-ordination in the development of the allotments has resulted in difficulties in providing footpath access with appropriate street lighting.

· The rate of development varies significantly resulting in an adhoc mixture of garages, fences and dwellings in the streetscape.

· The adhoc nature of the development inhibits the ability to provide services to the dwellings in an orderly manner.

· Poor pedestrian access to the dwellings. Footpaths cannot be adequately provided unless all of the properties are developed.

· The laneway width does not easily facilitate increased traffic generation, which will result from increasing the number of properties where the primary street address is the laneway. At present the lane is ancillary to the main street frontages and overflow parking is accommodated by on street parking. The laneway is too narrow to facilitate this arrangement and will provide little or no opportunity for kerb-side parking.

In dealing with micro issues relating to the application, perspective has been lost of the consequences of approving the application and the longer term planning outcome of allowing a number of developments of this nature along the laneway. The haphazard nature of development further along in Bundock Lane is testimony as to why this development should not proceed and is not the precedent that should be relied on for approving the subdivision.

The current policy review being undertaken by Council is the appropriate mechanism for considering the long-term consequences of this form of development. The use of SEPP 1 to ‘bypass’ this process is inappropriate and inconsistent with the underlying purpose of SEPP 1.

35 On 12 June 2004 the council filed a statement of issues, [Note: Exhibit 6]

Whether the proposed development meets the aims of the Randwick Local Environmental Plan (RLEP) 1998 as outlined in Clause 2;

"Clause 2(d) states:

"(d) to ensure that development is carried out in such a way as to allow the economic and efficient provision of public services and amenities, and"

Whether the proposed development meets the objectives of the Zone No 2A (Residential A Zone) pursuant to RLEP1998;

Clause 10(1)(a) and (c) states:

“(a) to maintain the character of established residential areas, and

(c) to enable redevelopment for low density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the like, where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development, and"

Whether the proposed lot sizes comply with the minimum allotment sizes specified in Clause 30(1) and Clause 30(4) of the RLEP1998

Clause 30(1) stipulates the following:

“The minimum allotment size for allotments resulting from the subdivision of land, other than for the purpose of public utility undertakings or roads, within Zone No 2A is 450 square metres and each allotment must have a frontage of at least 12 metres.”

Clause 30(4) stipulates the following:

“The minimum allotment size for the erection of a dwelling house or for an attached dual occupancy within Zone No 2A is 450 square metres and each allotment must have a frontage of at least 12 metres.”

Whether the objection pursuant to State Environmental Planning Policy No 1 (SEPP1) in respect of Clause 30(1) and (4) of the RLEP is well founded. (Minimum allotment size and minimum area).

The variation results in a development that is inconsistent with the objects of the EPA Act 1979, clause 5(a)(ii). In addition, the variation to the development standard results in a development that is inconsistent with the aims and purpose of the development standards contained within the RLEP.

Whether the proposal complies with section C 4(k) of Council’s Subdivision Code.

Section C 4(k) states the following:

“That the council will favourably consider proposal submitted by the subdivision of land with frontages to roads 6.09m in width, under the following conditions;

The land in the proposed subdivision funds one of the following streets:

The Bundock Lane, Randwick, between Avoca Street and Canberra Street.”

36 The following emerged as the salient issues:

· SEPP1 objection; and

· Whether the subdivision of the land would protect and enhance local amenity.

The evidence and findings

SEPP1 objection

37 A SEPP1 objection was lodged against cl 30(1) of the RLEP as both proposed lots would be less than the 450m2 minimum site area development standard for land located within Zone No 2A (Residential A). In order to construct a dwelling on Lot 2 a SEPP1 objection against the site area standard of cl 30(4) of the RLEP was also required, [Note: Exhibit D].

38 No SEPP1 objection was required to the frontage width, as both lots would exceed the minimum required frontage under the RLEP of 12m. It is noted that, within the 2(a2) residential zone, the Code requires a greater frontage width, at the building line, of 15m, however, the standard under the RLEP is objected to.

39 The proposal is to subdivide the land into two lots:

· Lot 1 - Fronting Rainbow Street would comprise an area of 437.1m2, with a frontage width to Rainbow Street of 13.41m and a depth of 32.58m.

· Lot 2 - Fronting Bundock Lane would comprise an area of 378.6m2, with a frontage width to Bundock Lane of 13.41m and a depth of 28.23m.

40 Lot 1 - Fronting Rainbow Street would be deficient of area by 12.9m2 or some 2.8%, and Lot 2 - Fronting Bundock Lane would be deficient of area by 71.4m2 or some 15.86%.

41 Mr T Blythe of Urbis JHD supported the SEPP1 objection and concluded that, [Note: Exhibit D]:

The current proposal does not seek to effect general planning changes throughout the municipality, but seeks recognition that there are very particular circumstances of this case that warrant a departure from the development standards of the Randwick LEP. The circumstances that warrant the approval of a SEPP-1 Objection are:

· The physical characteristics of the site and in particular the dual frontage and dual vehicle access opportunities.

· The appropriateness of the proposed development for the site and compliance with all relevant standards of the Randwick DCP - Dwelling Houses and Attached Dual Occupancies.

· The lack of physical impacts on the adjoining properties.

· The character of the immediate area, which contains relatively small lot sizes.

It is our opinion that for the aforementioned reasons, the proposed subdivision and development is consistent with the objectives of the Residential Zone and the stated and underlying purpose of Clause 30 of the Randwick LEP, that warrant strict compliance with the standard as unreasonable and unnecessary in the circumstances.

42 Mr Neustein reviewed the SEPP1 objection and concluded that, [Note: Exhibit 4 p 6]:

· In general terms, the SEPP 1 objection prepared for the subject proposal is properly prepared, answering all but one test required following the Winten v North Sydney case. In that matter, Lloyd J inserted an additional test being whether compliance with the standard, subject to the objection, would hinder attainment of the aims of the EPA Act.

· Generally, the aim of the EPA Act against which SEPP 1 objections are assessed is that relating to the economic and efficient use of land. Located in an area of good infrastructure, the proposal would contribute to better use of that infrastructure. The only circumstances in which approval of the policy would be inimical to the future interests of Council would be if there were plans for increasing the density of the zone by redevelopment and further subdivision would hinder that change. It appears from the Council report of 1 October 2003 that the only planning change being considered by Council is that of allowing dual occupancy development at a slightly greater density by reducing the area standards currently required. Under such a scenario, the proposal would not require a SEPP 1 objection. For these reasons, it is my view that the SEPP 1 objection is sustainable subject only to the proposal's individual merits, which have been considered…

43 I have considered the SEPP1 objection to the minimum site area standard of the RLEP in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 – 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):

…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

44 Taking each question posed by his Honour Lloyd J and answering it:

· the minimum 450m2 site area under the RLEP is a development standard;

· the underlying purpose of the minimum site area standard is to ‘protect and enhance’ local amenity;

· as it is proposed to dedicate a 1.2m-wide strip to widen the lane and to provide site area sufficient for the erection of the proposed dwelling, the maintenance of the existing dwelling and landscaping, the proposal would be consistent with the aims of the Policy and would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act for orderly and economic use of land;

· compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and a development, which complies, would have similar impacts, would require pedestrians to share the lane with motorists, would ‘protect and enhance’ the amenity in a similar manner;

· the objection is well founded.

45 In particular, I am also satisfied that:

· The established residential character would be maintained.

· The amenity of surrounding development would not be compromised.

· The proposed development would be compatible with the dominant character of existing rear-lane development within the neighbourhood.

· The council in this zone encourages the low-density housing form of development.

46 Although I accept that the absence of environmental harm should not be used as a basis of support for an SEPP1 objection, the evidence of Messrs Blyth and Neustein persuade me that the SEPP1 objection meets the tests set down in Winten. I am satisfied on the evidence of Mr Neustein, that the SEPP1 objection is well founded and that the underlying objectives of the development standard under cl 30 of the RLEP would be met, notwithstanding the non-compliance with the quantitative measure of the standard. Compliance with the standard is unnecessary or unreasonable in the particular circumstances of this case and the application may be upheld. The proposal to subdivide the land and to erect a new dwelling on Lot 2 passes the threshold test as submitted by the applicant’s counsel.

Whether the subdivision of the land would protect and enhance local amenity.

47 There was no issue that the proposed single-storey dwelling house to be erected on the new Lot 2 would be other than satisfactory when considered under s 79C of the Act. The plans prepared by Wincrest Homes allow assessment of the impact of the subdivision and the proposed development. I am satisfied that the proposed Lot 2 would be of ample area to permit the erection of the proposed single storey dwelling house.

48 The issue is whether, on merit, the subdivision would be satisfactory when considered under s 79C of the Act. The council was concerned that the proposed subdivision would create “an undesirable precedent” in that: garbage collection and postal deliveries would be difficult, there would be difficult manoeuvring access for garbage vehicles, general vehicular and pedestrian access and visitors’ car parking. It is interesting to note that the council, in its particulars to the issues, did not raise the issue of economic efficiency of service provision.

49 Mr Neustein satisfied himself that in this part of Bundock Lane, east of Canberra Street and west of Mount Road, all services could continue to be provided from the lane to a small number of houses with direct frontage to the lane. On the site inspection the presence of services was noted and there was no evidence to the contrary.

50 Mr Neustein confirmed on a previous site inspection that, garbage bins were positioned in the lane either awaiting collection by the council's service or having just been emptied. There was no evidence to suggest that the council’s garbage trucks do not use Bundock Lane and I would not refuse the application for this reason.

51 I am also satisfied that Bundock Lane is sufficiently wide to allow a garbage truck to pass another vehicle either parked or coming in the opposite direction.

52 There was no evidence to suggest that mail deliveries were not made in Bundock Lane. Those residences with frontage to Bundock Lane, appear to have mailboxes for that purpose.

53 I accept the evidence of Mr Neustein that even though there is no footpath along Bundock Lane and pedestrians and drivers of vehicles are forced to share the lane, that situation would not be fatal to an approval of the application. Mr Tighe said that he had seen motorists driving fast along the lane. As submitted by the applicant’s representative the mixing of pedestrians and vehicles is not uncommon in Sydney in slow streets, and pedestrians and drivers presently share Bundock Lane. I would not refuse the application for this reason.

54 I am satisfied that there would be barely adequate street lighting in Bundock Lane for vehicle and pedestrian movements at night, however this could be upgraded as required. I am satisfied that this would not be a reason to refuse the application.

55 Addressing the concerns of the council as expressed in the communication of Mr Harding:

· I accept that the street address would be different to that of a property fronting Rainbow Street or other main streets in the area. There is no evidence to confirm the claim that residents of new dwellings fronting the lane have responded to the alleged low-security levels with more front fences, and I do not accept that the public domain has been alienated in this way. It is a ‘mews-style’ proposal and despite being in an environment created by high fences and garages rather than landscaped front yards, in the short-term, I would not refuse the application for this reason.

· I do not accept that there would continue to be “…poor street surveillance as a result of the fencing and garage structures in the lane”. On the contrary, there would be eyes on the street as a result of people living in rooms of the new dwelling fronting the lane.

· There is street-lighting in the lane and any lack of co-ordination in the provision of services along the lane is something that one would expect to be addressed in time. Pedestrian access along the lane would need to be shared with vehicles until the shared-way or footpaths are developed.

· The concern for the appearance of “…an adhoc mixture of garages, fences and dwellings” in the lanescape is subjective and a matter of taste and I am satisfied not a reason to refuse the application.

· The criticism based on the adhoc nature of the development inhibiting the ability to provide services to the dwellings in an orderly manner is not borne out by the facts. I am satisfied that all necessary services are presently provided within the lane.

· I am satisfied, on the evidence of Mr Neustein, that the laneway width would cater for any increased traffic generated by the proposal. As was seen on the site inspection, Bundock Lane to the west of Canberra Street has the same trafficable width and the council has approved recent laneway development. I accept that kerb-side parking within the eastern section of the lane is restricted but visitor car parking would be available on-site on the apron to be provided in front of the proposed garage. Other car parking would be found in side and front streets in the area if required. Although not ideal this deficiency would not be a reason to refuse the application.

56 I would not refuse the application for the reasons raised by Mr Harding, or Mr Tighe, and I am satisfied, on the evidence of Mr Neustein, that the proposed double driveway to Bundock Lane would provide good vehicle access to the garage and for two visitors’ car parking spaces on-site. Other visitors’ car parking would be either within the lane where there are no garage openings or in the nearest streets.

57 I am satisfied on the evidence of Mr Neustein that Bundock Lane seems capable of supporting the traffic generated by the proposal.

58 The loss of two mature large Eucalyptus trees near the Bundock Lane frontage of the land would decrease the amenity of the area. These trees are not listed landscape items and would require approval to be removed under the council’s tree preservation order, [Note: Exhibit 1 RLEP cl 28 p 29]. Mr Tighe was particularly concerned in this regard, as he had seen birds sheltering in the branches of these trees. This was not an issue raised by the council and it was accepted that if the lots were slightly larger in area the land could be subdivided and developed in a manner similar to that proposed with the same result. If not subdivided, the land fronting the lane might be further developed for garages and outdoor recreation perhaps with a swimming pool and the trees might need to be removed in any event. I am satisfied that the loss of these trees would not be a reason for refusal of the application.

59 Mr Neustein was of the opinion that, [Note: Exhibit 4 pp 4-5]:

· The proposal will not change the essentially residential character of the zone whilst maintaining what is still a relatively low density (one dwelling per 400sqm average) as required by clause 10(1)(c) of the RLEP.

· An additional single storey house, fronting Bundock Lane, does not compromise the amenity of the locality or the zone and it is compatible with the dominant character of existing development by virtue of its limited height and bulk and location on the lane.

· The streetscape of the lane is still predominantly made up of garage doors and high fences to the rear of properties fronting Rainbow and Bundock Streets. Locating housing along the lane can only improve the presentation to the lane and enhance its streetscape. There will be no resulting negative impact on the Bundock or Rainbow Streets streetscape.

· Landscaping within the front setback is possible for the subject proposal, subject only subject to the requirement that a tall front fence not be constructed, as has been the case elsewhere in the lane. The use of a transparent or low fence will increase greatly the possible surveillance of the lane from the house as well as enabling the landscaped front setback to make a positive contribution to the lane.

60 I am satisfied that the proposal would improve the appearance of the laneway and I accept the evidence of Mr Neustein who had taken into account the comments of Mr Harding. I have concluded that the proposed subdivision of the land and the erection of a new dwelling would meet the objective of the RLEP to protect and enhance local amenity.

Precedent

61 The applicant’s representative submitted that in there are only five properties in Bundock Lane, east of Canberra Street, larger in area than the subject land, [Note: Exhibit H]. These are Nos 12 and 18 Bundock Street; No 114 Bundock Street, and Nos 215 and 219 Rainbow Street, being of areas 910m2, 832m2, 837m2, 1108m2 and 1117m2, respectively. Of those, three being in excess of 900m2 could be developed as two allotments without a SEPP1 objection. Thus, there are only two allotments in Bundock Lane, east of Canberra Street, comparable in size to the subject and capable of being developed in two lots in a manner similar to that proposed, utilising the flexibility inherent in SEPP1. These are No 18 Bundock Street of 832m2 and No 114 Bundock Street of 837m2. Thus, the applicant’s representative submitted that there are only two comparable sites below 900m2 and slightly larger than the subject and as a result there is no basis to claim that approval of the present application would be precedent in South Coogee, in Bundock Lane, east of Canberra Street. He submitted that in the event that an application were lodged for either of these sites the attendant SEPP1 objection is to be assessed on its own merits.

62 The respondent’s representative relied on the council’s attitude to favourably considering laneway development west of Canberra Street and not to its east. He suggested that approval of the present application would result in adhoc planning in Bundock Lane, east of Canberra Street.

63 I am satisfied that given that only two sites could be developed in Bundock Lane, east of Canberra Street and considering each on its merits there would no reason to refuse the present application for reason of its precedental effect.

64 For the above reasons, the appeal is upheld.

Conditions

65 The conditions are those in Exhibit 2, which were accepted by the applicant without change.

Orders

66 My orders are:

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy No 1,

Randwick Local Environmental Plan 1998

S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

George Meli and Lisa Gabrielle Anderson Meli
v
Randwick City Council

Property: 259 Rainbow Street, South Coogee

Development consent conditions
1. The development must be implemented substantially in accordance with the plans prepared by Lupu Design numbered DA 16 Issue C Subdivision Plan dated 5.3.04, DA17 Issue C Drainage Plan dated 5.3.04, DA 19 Issue C Landscaping Plan-Bundock Lane, all received by Council on 3 May 2004, and plans prepared by Wincrest Homes titled Site Plan issue C dated 6.4.04, Floor Plan Issue C dated 6.4.04, Elevations Issue C dated 6.4.04, Section & Window Schedule Issue C dated 6.4.04 and all received by Council on 3 May 2004, the application form and on any supporting information received with the application, except as may be amended by the following conditions and as may be shown in red on the attached plans:

The following conditions are applied to satisfy the provisions of section 79C of the

Environmental Planning and Assessment Act 1979

and to maintain reasonable levels of environmental amenity:

Environmental Planning and Assessment Act 1979

prior to commencement of any building works

The following conditions are imposed to promote ecologically sustainable development and energy efficiency.

construction certificate

The design of the building must be consistent with the development consent and any proposed variations to the building to achieve the energy efficiency rating may necessitate a new or amendment to the development consent prior to the issuing of a construction certificate.

4. The consumption of water within the building shall be minimised by the use of triple A rated water efficient plumbing fixtures (taps and shower roses) and water efficient dual flush toilets. Details of compliance are to be noted in the construction certificate plans or specifications.

construction certificate

6. Hot water service pipes are to be provided with insulation and must also satisfy any relevant requirements of Building Code of Australia and AS 3500.

7. The hot water system installed in the development must achieve a minimum greenhouse score of 3.5 as detailed SEDA’s Energy Smart Homes Policy. Any electric clothes dryers to be provided in the development must also have a minimum 2 star energy rating.

Environmental Planning and Assessment Act 1979,

prior to a construction certificate being issued

Landscaped areas must contain a predominance of species that require minimal watering once established or species with water needs that match rainfall and drainage conditions.

The tank is to be located a minimum of 500mm from the side boundaries and is to have a maximum height of 2.4 metres. The tank is to be installed behind the front building line and is to be located at ground level and be incorporated into the relevant construction certificate plans, to the satisfaction of the Certifying Authority.

SECTION 94:

The following condition/s are applied to satisfy the increased demand for public amenities and public services:

a) for the provision or improvement of open space $ 2,732.00
b) for the provision or improvement of community facilities $ 1208.00
c) Administration fee $425.00 $ 425.00

prior to a construction certificate being issued

Section 94 Administration Fee of $425.00

The following group of conditions have been applied to ensure that adequate drainage is provided from the premises and to maintain adequate levels of health and amenity in the locality:

Details of any excavation or drainage works proposed to be carried out in or on a public road/footway are to be submitted to and approved by Council’s Director of Assets & Infrastructure Services prior to commencement of works.

13. External paths and ground surfaces are to be graded and drained away from the building and adjoining premises in such a manner so as not to result in the entry of water into a building, or cause a nuisance or damage to the adjoining premises.

The following conditions are applied to ensure that the development satisfies the provisions of the

Environmental Planning and Assessment Act 1979

and Regulations:

Environmental Planning & Assessment Act 1979

Environmental Planning & Assessment Regulation 2000

Failure to comply with these legislative requirements is an offence and may result in the commencement of legal proceedings, issuing of `on-the-spot` penalty infringements or service of a notice and order by Council.

15. All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA), in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000.

16. Prior to the commencement of any building works, a construction certificate must be obtained from the Council or an accredited certifier, in accordance with the provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000 .

17. Prior to the commencement of any building work, a principal certifying authority must be appointed and Council is to be notified accordingly and, at least 2 days notice of the intention to commence building work must be given to Council, in accordance with the provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000 .

Environmental Planning and Assessment Regulation 2000

Home Building Act 1989

owner-builder

Home Building Act 1989

19. The required Long Service Levy payment, under the Building and Construction Industry Long Service Payments Act 1986 , is to be forwarded to the Long Service Levy Corporation or the Council, prior to the issuing of a Construction Certificate, in accordance with Section 109F of the Environmental Planning & Assessment Act 1979 .

20. An Occupation Certificate must be obtained from the principal certifying authority prior to any occupation of the building work encompassed in this development consent in accordance with the relevant provisions of the Environmental Planning & Assessment Act 1979 .

The following group of conditions have been applied to ensure the structural adequacy and integrity of the proposed building and adjacent premises:
21. A Certificate of Adequacy supplied by a professional engineer shall be submitted to the certifying authority (and the Council, if the Council is not the certifying authority) prior to a construction certificate being issued for the development, certifying the structural adequacy of the existing structure to support the additional storey.

The following conditions are applied to ensure that the development satisfies relevant standards of construction, and to maintain adequate levels of health, safety and amenity during construction:
22. All demolition work is to be carried out in accordance with the provisions of AS2601-1991. The Demolition of Structures, as in force at 1 July 1993.

23. A copy of the construction certificate, the approved plans & specifications and development consent conditions must be kept on the site at all times and be available to the Council officers upon request.

The Principal Certifying Authority shall specify the relevant stages of construction to be inspected and a satisfactory inspection must be carried out, to the satisfaction of the Principal Certifying Authority, prior to proceeding to the subsequent stages of construction or finalisation of the works (as applicable).

Retaining walls, shoring or piling must be provided to support land which is excavated in association with the erection or demolition of a building, to prevent the movement of soil and to support the adjacent land and buildings, if the soil conditions require it. Adequate provisions are also to be made for drainage.

a) Prior to construction of the footings or first completed floor slab (prior to the pouring of concrete), showing the area of the land, building and boundary setbacks.

28. Noise and vibration emissions during the construction of the building and associated site works must not result in damage to nearby premises or result in an unreasonable loss of amenity to nearby residents and the relevant provisions of the Protection of the Environment Operations Act 1997 must be satisfied at all times.

29. All building, demolition and associated site works must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive, between 8.00am to 5.00pm on Saturdays and all building activities are strictly prohibited on Sundays and public holidays, except with the specific written authorisation of Council’s Manager of Environmental Health and Building Services.

Noise and vibration from any rock excavation machinery and pile drivers (or the like) must be minimised by using appropriate plant and equipment and silencers and a construction noise and vibration minimisation strategy, prepared by a suitably qualified consultant is to be implemented during the works, to the satisfaction of the Principal Certifying Authority.

owner-builder

Home Building Act 1989 and Regulations

33. Building materials, sand, soil, waste materials or construction equipment must not be placed upon the footpath, roadway or nature strip at any time and the footpath, nature strip and road must be maintained in a clean condition and free from any obstructions at all times.

34. Bulk bins/ waste containers must not be located upon the footpath, roadway or nature strip at any time without the prior written consent of the Council, unless the waste container is located upon the road in accordance with the Roads & Traffic Authority Guidelines and Requirements, and the container is exempt from an approval under Council’s Local Approvals Policy.

35. During construction stages, sediment laden stormwater run-off shall be controlled using the sediment control measures outlined in the manual for Managing Urban Stormwater – Soils and Construction, published by the NSW Department of Housing.

Building operations such as brick cutting, washing tools or equipment and mixing mortar are not permitted on public footpaths, roadways, nature strips, in any public place or any location which may lead to the discharge of materials into the stormwater drainage system.

prior to the commencement of any demolition, excavation or building works

Details of the proposed sediment control measures must be submitted to and approved by the principal certifying authority prior to the commencement of any site works. The sediment and erosion control measures must be implemented prior to the commencement of any site works and a copy of the approved details must be made available to Council officers upon request.

location and construction of protective fencing / hoardings to the perimeter of the site;
location of site storage areas/sheds/equipment;
location of building materials for construction;
provisions for public safety;
dust control measures;
site access location and construction
details of methods of disposal of demolition materials;
protective measures for tree preservation;
provisions for temporary sanitary facilities;
location and size of waste containers/bulk bins;
details of proposed sediment and erosion control measures;
construction noise and vibration management.

40. Any building/demolition works involving asbestos cement are to be carried out in accordance with the Work Cover New South Wales “Guidelines for Practices Involving Asbestos Cement in Buildings”.

41. Any part of Council’s nature strip which is damaged as a result of the work must be back-filled, top-soiled and re-turfed with kikuyu turf prior to occupation or finalisation of the development, to Council’s satisfaction.

The following conditions are applied to ensure that reasonable levels of fire safety are provided in the building:

Building Code of Australia

construction certificate.

ADVISORY MATTERS:
A1 The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia (BCA) 1996.

construction certificate.

Construction Certificate.

Security Deposit Conditions

a) $3000.00 - Vehicular crossing deposit

The vehicular crossing deposit may be provided by way of cash or cheque with the Council and is refundable upon the completion of the Council vehicular crossing by Council or a Council approved subcontractor.

Traffic conditions/Civil Works Conditions
The following conditions are applied to provide adequate provisions for access, transport and infrastructure:
44. The applicant must meet the full cost for Council or a Council approved contractor to:
a. Construct concrete vehicular crossing and layback at kerb opposite the vehicular entrance to the site.
b. Construct concrete kerb and gutter along the Bundock Lane frontage with associated roadworks.
c. Construct a concrete footpath between the proposed new kerb and the new dedicated property boundary.

45. The applicant must meet the full cost for Council or a Council approved contractor to repair/replace any damaged sections of Council's footpath, kerb & gutter, nature strip etc which are due to building works being carried out at the above site. This includes the removal of cement slurry from Council's footpath and roadway.

46. The applicant shall note that all external work, carried out on Council property, shall be in accordance with Council's Policy for "Vehicular Access and Road and Drainage Works". An application for the cost of the Council civil works is to be submitted to Council at the completion of the internal building works. An application fee shall be payable to Council for the quotation of the required works. The applicant may elect to use his contractor for the required works, subject to Council approval, however a design and supervision fee based on the lowest quotation from Council's nominated contractor will be required to be paid prior to the commencement of any works.

Alignment Level Conditions

The following conditions are applied to provide adequate provisions for future civil works in the road reserve:

60mm above the edge of the asphalt road at all points opposite the edge of the road along the Bundock Lane site frontage.

48. The design alignment levels (concrete/paved/tiled level) issued by Council and their relationship to the roadway must be indicated on the building plans for the construction certificate. The design alignment level at the street boundary, as issued by the Council, must be strictly adhered to.

49. The above alignment levels and the site inspection by Council’s Department of Asset & Infrastructure Services have been issued at a prescribed fee of $369.00 calculated at $27.50 (inclusive of GST) per metre of site frontage. This amount is to be paid prior to a construction certificate being issued for the development.

50. The top of footings of any structures constructed on the boundary alignment must be at least 150mm below the alignment level as specified for the vehicular access. This condition has been attached to accommodate future footpath construction at this location.

Service Authority Conditions
The following conditions are applied to provide adequate consideration for service authority assets:
51. A public utility impact assessment must be carried out on all public utility services on the site, roadway, nature strip, footpath, public reserve or any public areas associated with and/or adjacent to the development/building works and include relevant information from public utility authorities and exploratory trenching or pot-holing, if necessary, to determine the position and level of service.

52. The applicant must meet the full cost for telecommunication companies, gas providers, Energy Australia and Sydney Water to adjust/repair/relocate their services as required. The applicant must make the necessary arrangements with the service authority.

Drainage Conditions

The following conditions are applied to provide adequate provisions for drainage and associated infrastructure:

54. All stormwater run-off naturally draining to the site must be collected and discharged through this property's stormwater system. Such drainage must, if necessary, be constructed prior to the commencement of building work.

55. On-site detention must be provided to ensure that the maximum discharge from the above site is not to exceed that which would occur during a 1 in 5 year storm of 1 hour duration for the existing site conditions. All other stormwater run-off from the above site for all storms up to the 1 in 20 year storm is to be retained on the site for gradual release to the kerb and gutter or drainage system as required by the Director of Assets and Infrastructure Services. Provision is to be made for satisfactory overland flow should a storm in excess of the above parameters occur.

Where possible the detention tank must have an open base to infiltrate stormwater to the groundwater. Note that the ground water and any rock stratum has to be a minimum of 2.0 metres below the base of the tank.

56. All site stormwater leaving the site must be discharged by gravity to the kerb and gutter or drainage system at the Bundock Lane frontage.

57. The applicant is to construct a minimum 150mm size pvc pipe within the proposed rear lot which will drain the stormwater discharge of the front lot. A junction pit/silt arrestor pit is to be constructed at the rear boundary of the front lot prior to discharging into the minimum 150mm pipe and then another silt arrestor pit at the property boundary of the rear lot prior to discharging to Bundock Lane via 2 x 90mm pipes.

58. The applicant must provide for a detention volume of up to the 1 in 100 year storm event should no formal overland escape route be provided for storms greater than the design storm.

59. The detention area must be regularly cleaned and maintained to ensure it functions as required by the design.

60. The stormwater detention area must be suitably signposted where required, warning people of the maximum flood level.

(In this regard, it must be noted that this condition must not result in any increase in the heights or levels of the building. Any variations to the heights or levels of the building will require a new or amended development consent from the Council prior to a construction certificate being issued for the development).

62. A childproof and corrosion resistant fastening system shall be installed on access grates over pits/trenches where water is permitted to be temporarily stored.

63. Stormwater pipes shall be located in accessible locations.

Should a pump system be required to drain any portion of the site the system must be designed with a minimum of two pumps being installed, connected in parallel (with each pump capable of discharging at the permissible discharge rate) and connected to a control board so that each pump will operate alternatively. The pump wet well shall be sized for the 1 in 100 year, 2 hour storm assuming both pumps are not working.

The pump system must also be designed and installed strictly in accordance with "Section 8.4 PUMP SYSTEMS" as stipulated in Randwick City Council's Private Stormwater Code.

65. A sediment/silt arrester pit must be provided:-

a. within the site at or near the street boundary prior to the site stormwater discharging by gravity to the kerb/street drainage system; and
b. prior to stormwater discharging into any absorption/infiltration system.

The sediment/silt arrestor pit shall be constructed with:-

· The base of the pit located a minimum 300mm under the invert level of the outlet pipe.

· The pit must be constructed from cast in-situ concrete, precast concrete or double brick.

· The grate is to be a galvanised heavy-duty grate that has a provision for a child proof fastening system.

· A minimum of 4 x 90 mm diameter weep holes located in the walls of the pit at the floor level with a suitable geotextile material with a high filtration rating located over the weep holes.

· A galvanised heavy-duty screen (Lysaght RH3030 Maximesh or similar) located over the outlet pipe. (Similar to a Mascot GRC stormwater discharge control pit, product code DS3SDC).

· A child proof and corrosion resistant fastening system for the access grate (e.g. similar to a Weldlock spring loaded jay-bolt).

· The inlet pipeline located on the side of the pit so that the stormwater will discharge across the face of the screen.

“This sediment/silt arrester pit shall be regularly inspected and cleaned.”

Note: Sketch details of a standard sediment/silt arrester pit can be obtained from Council’s Drainage Engineer.

66. A ‘V’ drain is to be constructed along the perimeter of the property, where required, to direct all stormwater to the detention area.

67. Any Absorption Trenches/Pits must be designed in accordance with "Section 8.5 ABSORPTION TRENCHES" as stipulated in Randwick City Council's Private Stormwater Code.

68. Prior to the issuing of an occupation certificate, the applicant shall submit to Council's Director of Asset and Infrastructure Services, a works-as-executed drainage plan prepared by a registered surveyor and approved by a suitably qualified and experienced Hydraulic Engineer. The works-as-executed drainage plan shall be to the satisfaction of the Principal Certifying Authority (PCA) and shall include the following details:

a. The location of the detention basin with finished surface levels;
b. Finished site contours at 0.2 metre intervals;
c. Volume of storage available in the detention areas;
d. The location, diameter, gradient and material (i.e PVC, RC etc) of all stormwater pipes;
e. The orifice size(s) (if applicable); and
f. Details of any pumping systems installed (including wet well volumes).

69. Prior to the issuing of an occupation certificate, the applicant shall submit to the Principal Certifying Authority (PCA) and Council’s Director of Asset and Infrastructure Services, certification from a suitably qualified and experienced Hydraulic Engineer confirming that the design and construction of the stormwater drainage system complies with the conditions of development consent. The certification must be provided to the satisfaction of the PCA.

70. Any seepage water must be drained directly into an absorption pit within the site. Seepage water must not be drained from the site.

Subdivision Conditions

The following conditions are applied to satisfy the provisions of Council’s environmental plans, policies and codes for subdivision works:

then the “e-developer” icon or telephone 13 20 92.

Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

72. The applicant shall provide Council with a survey plan of the property prior to receiving subdivision approval. (The linen plans shall show the location of the on-site detention system)

73. The applicant shall create suitable right of carriageway, easements for services and internal stormwater lines, as required. The applicant shall be advised that the minimum easement width for any internal stormwater line is 0.9 metres.

74. A "restriction as to user and positive covenant" shall be placed on the title of the subject property prior to the issuing of a final occupation certificate. Such restriction and positive covenant shall relate to the onsite stormwater detention system and shall not be released, varied or modified without the consent of the Council.

Notes:

a. The "restriction as to user and positive covenant" are to be to the satisfaction of Council. A copy of Council’s standard wording/layout for the restriction and positive covenant may be obtained from Council’s Asset and Infrastructure Services Department.
b. The linen plans shall indicate the location and dimensions of the detention/infiltration areas.

This condition is to ensure that no works which could affect the design function of the detention system are undertaken without the prior consent (in writing) from Council.

75. The conditions of development consent (DA 322/04) must be satisfied and all public roads and reserves must be satisfactorily restored prior to the finalisation of the subdivision.

76. The applicant shall dedicate a 1.20m strip of land, at no cost to Council, along the Bundock Lane frontage for road widening of Bundock Lane.

77. The applicant shall remove any structures located within the road-dedicated area.

Landscape Conditions
The following conditions are applied to provide adequate provisions for landscaping and to maintain reasonable levels of environmental amenity:
78. Landscaping shall be provided to the site to enhance its amenity and reduce the impact of the development upon neighbouring properties. A landscape plan shall be submitted to and approved by the Director of Planning & Community Development, in accordance with section 80A(2) of the Environmental Planning and Assessment Act 1979, prior to a construction certificate being issued.

79. Landscaped areas must contain a predominance of species that require minimal watering once established or species with water needs that match rainfall and drainage conditions.

80. The landscaping shall be installed in accordance with the approved documentation prior to the issue of a final occupation certificate and shall be maintained in accordance with those plans.

81. The nature strip upon Council's footway shall be excavated to a depth of 150mm, backfilled with topsoil equivalent with 'Organic Garden Mix' as supplied by Australian Native Landscapes, and re-turfed with Kikuyu Turf or similar. Such works shall be installed prior to the issue of a final Occupation Certificate.

82. The nature strip upon Council's footway shall be maintained by the applicant in accordance with Council guidelines. Such maintenance shall include, but not be limited to, watering, mowing, fertilising, and the removal of weeds.

83. In order to visually 'soften' the expanses of hard pavement, brick unit pavers, stenciled concrete or similar shall be used throughout the driveway and carpark areas on the site. Such details shall be shown on the detailed engineering documentation and shall include all structural design details including pavement/subgrade thickness.

Such details shall be in accordance with the relevant Australian Standard and shall be submitted to, and approved by, the Principal Certifying Authority, prior to the issue of the Construction Certificate.

84. In order to provide reasonable levels of screening and privacy between this site and adjoining properties, the plan will be required to show the provision of perimeter planting around the site using a species that is capable of attaining a minimum height at maturity of 3 metres.

Tree Management
85. The applicant shall submit a total payment of $159.50 to Council,

a. Being the cost for Council to supply and install 1 x 45 litre street tree ( Eucalyptus leucoxylon , Yellow Gum) on the western side of the driveway on the Rainbow Street frontage at the completion of all works ($145.00 + GST)

Fee Code 525

prior to an occupation certificate being issued for the development.

The applicant shall present the receipt at the Asset and Infrastructure Services counter on the First Floor to organise for the works to be undertaken.

86. Approval is granted for the removal of the following trees subject to the planting of 2 x 75 litre broad canopied replacement trees (not palms) within the rear of the site to compensate for the loss of the two large Gum trees, as well as 3 x 25 litre broad canopied replacement trees (not palms) elsewhere within the site. The species selected shall be those that will attain a minimum height of 6 metres at maturity.

a. Four (4) Celtis australis (Nettle Trees) in the rear yard along the eastern boundary
b. One Morus nigra (Mulberry) in the rear yard along the eastern boundary
c. Two (2) Eucalyptus botryoides (Bangalay) in the rear yard, towards the southern boundary

87. The applicant shall be required to ensure the retention and long term health of all trees located on adjoining properties adjacent to the proposed development. As a general guide there shall be minimal excavation or root pruning within the driplines of the subject trees.

Tree Protection Measures
88. In order to ensure the retention of the two (2) Eucalyptus species (Gum trees) located in the rear yard of the adjoining site to the west (257 Rainbow Street) in good health, the following measures are to be undertaken:
a. All detailed architectural, building, demolition, engineering (structural, stormwater & drainage, services), and landscape documentation submitted for the construction certificate application shall show the retention of the existing tree specimens with the position of the tree trunks and full diameter of the tree canopies clearly shown on all drawings.
b. There is to be no storage of materials or machinery or site office/sheds, nor is cement to be mixed or chemicals spilt/disposed and no stockpiling of soil or rubble within the dripline of these trees. Any works required within this zone (only as approved on the construction certificate) shall be under the direction of, and to the satisfaction of, a suitably qualified Arborist.
c. Any excavations required for footings, structures, retaining walls, services, pipes, detention tanks, stormwater infiltration systems, paving etc within 3 metres of the tree trunks shall be undertaken by hand and under the direction of, and to the satisfaction of, a suitably qualified Arborist with all roots being cleanly cut.

Advisory Conditions
The applicant is to advise Council in writing and/or photographs of any signs of existing damage to the Council roadway, footway, or verge prior to the commencement of any building/demolition works.

S J Watts
Commissioner of the Court

CITATION:	George Meli and Lisa Gabrielle Anderson Meli v Randwick City Council [2004] NSWLEC 433
PARTIES:	APPLICANT: George Meli and Lisa Gabrielle Anderson Meli RESPONDENT: Randwick City Council
FILE NUMBER(S):	10700 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- SEPP1 objection - Whether the subdivision of the land would protect and enhance local amenity.
LEGISLATION CITED:	Randwick Local Environmental Plan 1998, (RLEP) - Randwick City Council Subdivision Code, (Code) - State Environmental Planning Policy No 1, (SEPP1)
CASES CITED:	Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001
DATES OF HEARING:	03/08/2004
DATE OF JUDGMENT:	08/10/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr D Parry, barrister instructed by Mr G Meli SOLICITORS: N/A RESPONDENT: Mr J Kildea, barrister instructed Ms T Litt, solicitor SOLICITORS: Bowen & Gerathy