Giannaki v Waverley Council (No 2)

[2010] NSWLEC 1284

Land and Environment Court

of New South Wales

CITATION:

Giannaki v Waverley Council (No 2) [2010] NSWLEC 1284

PARTIES:

Tina Dionysiou Giannaki
(First Applicant)

Polixeni Dionysiou Giannaki
(Second Applicant)

Waverley Council
(First Respondent)

Windesea Pty Limited
(Second Respondent)

FILE NUMBER(S):

10688 of 2010

CORAM:

Brown C

KEY ISSUES:

APPEAL :- application to modify approval for the demolition of existing building and the construction of a mixed use commercial/residential development - geotechnical issues - modified approval by consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96AA(4)

CASES CITED:

Giannaki v Waverley Council [2010] NSWLEC 191

DATES OF HEARING:

18 October 2010

EX TEMPORE JUDGMENT DATE:

18 October 2010

LEGAL REPRESENTATIVES:

APPLICANTS
Mr R O'Gorman-Hughes, barrister
SOLICITORS
Yates Biaggi

FIRST RESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb Staunton Beattie

SECOND RESPONDENT
Ms J Reid, solicitor
SOLICITORS
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 October 2010

10688 of 2010 Tina Dionysiou Giannaki
(First Applicant)

Polixeni Dionysiou Giannaki
(Second Applicant)

Waverley Council
(First Respondent)

Windesea Pty Limited
(Second Respondent)

JUDGMENT

1 COMMISSIONER: This appeal relates to an application to modify an Agreement made on 22 September 2008 (Appeal No. 10282 of 2008), pursuant to s 34(3)(a) of the Land and Environment CourtAct 1979, between Waverley Council and Windesea Pty Limited for the demolition of existing building and the construction of a mixed use commercial/residential development with basement car parking at 49-51 Fletcher Street Tamarama.

2 The Agreement contained deferred commencement condition A that required the submission of a Construction Management Plan, reviewed and endorsed by geotechnical engineer. On 24 June 2010, the council advised the applicant of its satisfaction with the requirements in deferred commencement condition A

3 The modification application seeks:

• a new drying area (terrace) on each level of the western facade and relocation of privacy screens from the windows to the outside of the proposed drying courtyards on Levels 4 and 5,
• a minor addition to the roof on the eastern side of the building to cover the drying court,
• additional excavation of 5.6 m down from the proposed light well at Level 1 and 2 adjacent to the northern boundary for a deepened light well from street ground level
• amendments to provide the correct reference to the Australian Standard for access and the ability, and
internal design changes.

4 The council granted approval to the modification application on 27 July 2010.

5 On 1 September 2010, the owners of the adjoining property (47 Fletcher Street Tamarama), Tina Dionysiou Giannaki and Polixeni Dionysiou Giannaki (the applicants), filed an appeal against the decision of Waverley Council to approve the modification application.

6 On 29 September 2010, Biscoe J, pursuant to s 96AA(4) of the Environmental Planning and Assessment Act 1979 granted leave for the applicants to appeal the determination of Waverley Council to approve the modification application (Giannaki v Waverley Council [2010] NSWLEC 191).

7 The applicants filed a Statement of Facts and Contentions. A request for further and better particulars was made by the solicitors of the Second Respondent and provided by the applicant’s solicitors. The Statement of Contentions raised potential issues with the geotechnical reports provided by the second respondent. The principle contention was the additional excavation for the extended light well and the risk to the stability of the residential flat building on their land. It was also argued that while the modification application sought only to increase the amount of excavation to that already approved by a comparatively small amount, the additional requirements sought by the applicant’s should apply to the whole development and not just the area of the modification.

8 Notwithstanding the applicant’s submission that all but one of the contentions could be addressed by conditions, the principle position of the applicant’s was that the modification application should be refused. The contention that remained in dispute is:

B1.1(e) In the event that the development work is to proceed, the likelihood of substantial damage to, if not the complete destruction of, the Applicants’ property is substantial.

9 The condition in dispute is condition 15. This condition was modified in the council’s approval of the modification application on 27 July 2010 although neither version was considered acceptable by the applicant’s who provided an alternative condition (Exhibit A). The applicant’s alternate condition was not acceptable to the respondents.

10 Expert geotechnical evidence was provided by Mr Matthew Cupitt, for the applicants and Mr Greg Keighran for the second respondent. Mr Cupitt and Mr Keighran produced two joint reports and after further conferencing, a further version of condition 15 (Exhibit E). This condition addressed the concerns of the applicant’s and was also acceptable to the second respondent. This condition states:

15 GEOTECHNICAL ENGINEERS REPORT


A geotechnical report prepared by a geotechnical consultant regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk and excavation, piles and shoring works without the need to extend rock, anchor or carry out any other work on adjoining properties without prior written consent is to be submitted to the PCA, Council and the owners of the adjoining premises. The report is to be submitted after the further geotechnical assessment recommended by the Douglas & Partners report, dated January 2002 has been undertaken after the demolition of the existing structure and prior to commencement of excavation works.

The report shall:

a Confirm rock type, quality and levels encountered to below the basement level.

b Indicate whether the structural drawings approved in the construction certificate are suitable in light of the rock encountered.


If the rock type, quality and levels are such that the structural drawings are not suitable, amended drawings in accordance with the recommendations of the geotechnical consultant must be submitted for approval of the PCA.

The recommendations contained in the reports of Douglas Partners dated January 2002 and KeighranGeotechnics dated 8 March 2010, 16 March 2010 and the above detailed additional report must be followed and implemented.

In addition, the method of excavation and demolition should be carried out such that vibrations resulting from demolition, shoring works and excavation works are minimised and limited to a maximum peak particle velocity of about 2mm/second at any adjoining structure (appropriate level for sensitive structures).

11 In accepting this condition, the respondents made no concessions in relation to applicant’s submission that there was power in the modification application to impose more stringent conditions on the whole development.

12 The modification application also included additional conditions (conditions 25, 26 and 27) that were agreed by the parties.

Orders

13 The orders of the Court, by consent, are:

1. Appeal upheld, in part.
2. The s96AA application, as amended to modify development consent 201/07, for the demolition of existing building and the construction of a mixed use commercial/residential development with basement car parking at 49-51 Fletcher Street Tamarama is approved subject to the modified conditions in Annexure A to these orders.
3. The exhibits are returned with the exception of exhibit C.

___________
G T Brown
Commissioner of the Court

ANNEXURE A

Modification of approval for the demolition of existing building and the construction of a mixed use commercial/residential development with basement car parking at 49-51 Fletcher Street Tamarama.

The development must be in accordance with:

a The approved development plans Job No 716 Drawing Nos. DA 2.02, DA 2.03 and DA 2.04 Revision H, DA 3.01 Revision G, DA 3.02 Revision H and DA 4.01 Revision G, dated 8 October 2008 drawn by Brian Meyerson Architects Pty Ltd and received by the NSW Land and Environment Court, and the approved modification plans Job No 716 Drawing Nos. DA 2.02, DA 2.03 and DA 2.04 Revision I, DA 3.02 Revision I and DA 4.01 Revision H dated 17 December 2009 drawn by Brian Meyerson Architects Pty Ltd and received by Council on 23 December 2009 (but only in so far as they relate to the modification highlighted on those Section 96 application), except where amended by the following conditions of consent;

b Landscape Plan, Drawing No. LP 01 revision H and documentation prepared by Patio Landscape Architecture and Design, dated 8 October 2008;

c Landscape Plan, Drawing No. LP 02 revision G and documentation prepared by Patio Landscape Architecture and Design, dated 8 October 2008; and

d BASIX Certificate.

The proposal shall be amended as follows:

a This approval does not permit the erection of the pool at the rear of the site, which is the subject to a separate development application to Council (the pool is not describe in the submitted documentation nor does it form part of this application);

b A balustrade is to be provided around the subject light well to address safety / risks associated with such a deep structure.

c Obscured glass or louvred privacy screens are to be installed as approved originally on the family / study and en-suite windows at levels 3 and above on the western elevation. In addition, a minimum of 1.8m high privacy screens are to be installed on the side of each balustrade on the drying court area from level 2 upward to level 5 on the eastern elevation. The applicant is to nominate the screen material and submit a sample to Council for approval.

d Full height obscured glass or louvred privacy screens are to be provided to each side of the rear balconies on each level. The applicant is to nominate the screen material and submit a sample to Council for approval.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

A geotechnical report prepared by a geotechnical consultant regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk and excavation, piles and shoring works without the need to extend rock, anchor or carry out any other work on adjoining properties without prior written consent is to be submitted to the PCA, Council and the owners of the adjoining premises. The report is to be submitted after the further geotechnical assessment recommended by the Douglas & Partners report, dated January 2002 has been undertaken after the demolition of the existing structure and prior to commencement of excavation works.

The report shall:

a Confirm rock type, quality and levels encountered to below the basement level.

b Indicate whether the structural drawings approved in the construction certificate are suitable in light of the rock encountered.

If the rock type, quality and levels are such that the structural drawings are not suitable, amended drawings in accordance with the recommendations of the geotechnical consultant must be submitted for approval of the PCA.

The recommendations contained in the reports of Douglas Partners dated January 2002 and KeighranGeotechnics dated 8 March 2010, 16 March 2010 and the above detailed additional report must be followed and implemented.

In addition, the method of excavation and demolition should be carried out such that vibrations resulting from demolition, shoring works and excavation works are minimised and limited to a maximum peak particle velocity of about 2mm/second at any adjoining structure (appropriate level for sensitive structures).

The development shall be provided with access and facilities for people with disabilities in accordance with AS1428.1 Design for Access and Mobility Part 1: General requirements for access. Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

Access in accordance with AS1428.1 shall be provided to and within the main entrance and exit points of the development. Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory or wherever directional signage or information is provided in the building. Such signage shall have regard to the provisions of AS1428.1.

Note: Works either not identified in the modified plans (ie coloured or hatched) or not specifically requested in your written submission accompanying the above modification are not approved.

______________

G T Brown