Kycel Pty Ltd Trading as ACA Design Consultants v Liverpool City Council - [2009] NSWLEC 1218

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Kycel Pty Ltd Trading as ACA Design Consultants v Liverpool City Council [2009] NSWLEC 1218

PARTIES:
APPLICANT
Kycel Pty Ltd Trading as ACA Consultants
RESPONDENT
Liverpool City Council

FILE NUMBER(S): 11036 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Mulit unit housing development; permissibility; character of neighbourhood; impact on neighbourhood

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Liverpool Local Environmental Plan 2007
Liverpool Local Environmental Plan 2008

DATES OF HEARING: 18 June 2009, 19 June 2009

DATE OF JUDGMENT:
6 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Griffith (Solicitor)
SOLICITOR
Pikes Lawyers
RESPONDENT
Mr P Hudson (Solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 July 2009

11036 0f 2008 Kycel Pty Ltd Trading as ACA Design Consultants v Liverpool City Council
JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a multiple dwelling development application for 26 town houses with basement car parking and front fencing at Lot 32 Cowpasture Road, Green Valley. Temporary access to the development was proposed from Cowpasture Road, which is a designated restricted access road.

2 For the appeal a number of issues were identified, which are summarised as follows:

Whether the development is prohibited in the R2 zone pursuant to LLEP 2008.
Whether the development is consistent with the future character and built form of residential development in the area.
Permissibility of direct access from Cowpasture Road.
Site suitability in terms of impacts on future road works.
Precedent.
Landscaped areas.
Public interest considerations.

3 In response to these issues, the applicant was granted leave to rely on amended plans. The amended plans reduced the number of proposed dwellings to 24 and deleted the temporary road access from Cowpasture Road. The alternate access is to be generally in accordance with the DCP, which provides for an extension of Rodeo Drive through the neighbouring property. The provision of this new road extension is subject to a deferred commencement condition requiring negotiations and agreement with the neighbouring property owner, to obtain an easement allowing for the construction of the new road.

4 Following consideration of the amended application, the parties have agreed to consent orders. Notwithstanding this, a number of objections were lodged against the approval of the consent orders.

The site

5 This site is described as Lot 32 in DP 866117, Cowpasture Road, Green Valley. It has a 140m frontage to Cowpasture Road and a total area of 8322sq m.

6 Adjoining the southern boundary of the site is a Shell service centre that has direct access from Cowpasture Road. To the north of the site is a drainage reserve. There is a large dwelling set in open grounds on the adjoining property to the east. The immediate and surrounding area comprises mainly low-density residential development.

Planning controls

7 The following controls are relevant:

Liverpool LEP 2007; under which the site is zoned 2(a) Residential.
Liverpool LEP 2008, which was gazetted on 29 August repeals LEP 2007.
Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment.
SEPP No11- Traffic Generating Development.
SEPP (Infrastructure) 2007.
DCP No 2 – Hoxton Park – Green Valley Release Area.
DCP No 4 – Environmentally Responsive Residential Development.
DCP No 37 – Notification and Advertising of Development Applications.
DCP No 46 – Waste Not.

The evidence

8 As I noted previously, council’s further consideration of the revised application, with a reduced number of dwellings and proposed access to be provided from the internal road (Rodeo Drive), rather than from Cowpasture Road has resulted in the consent orders.

9 Notwithstanding this, a number of objections remain from the neighbours. In particular the adjoining owner’s objection is on the following basis:

The bulk and scale of the development is excessive and will severely compromise the serenity of the locale and lifestyle.
Permissibility of the multi unit form of development.
Unacceptable access via the easement, which will not be granted.

10 In addition to this, there was a petition from other neighbours and an objection from the Shell company. This objection related to the separation distance of the residential development to the gas storage facilities. However this matter has been checked and the residential exclusion zone of 15m specified under AS 1596 is confirmed as satisfactory, subject to the provision of an intervening firewall with a minimum 30 minute rating, to specifically protect unit No 5. The firewall is required under condition 29.

11 No specific expert reports were tendered and the complete s 79C assessment is contained in the council planning officers report that resulted in the consent orders. Accordingly, I have considered this assessment, together with the expert evidence given at the view particularly in relation to the objections raised on the following basis.

Planning framework

12 Insofar as concerns were expressed that this form of multi unit development is now prohibited under LEP 2008, nevertheless it was permissible under the preceding LEP 2007, which is the prevailing control. This situation occurs because when LEP 2008 repealed the previous LEP, it contained the following savings clause 1.8A:

1.8A Savings provisions relating to pending development approvals

If a development has been made before the commencement of this Plan in relation to land which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

13 Consequently the current application falls into this category. From this, the assessment confirms that the application generally satisfies the objectives of the zone. Also, that the amended application is now consistent with the access provisions for the restricted access (Cowpasture) road.

14 Clause 40 then contains the general restrictions on development requiring compatibility with the character and amenity of both the existing and likely nearby residential areas in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

(b) its operation, and …

15 The council officer’s assessment states:

Scale, bulk, design, height, siting and landscaping

16 It then seems to me that this relevant cl 40 matter requiring consideration has been adequately addressed.

17 Notwithstanding the savings clause provisions, certain weight has to be given to the provisions of LEP 2008 on the basis it is considered as a draft instrument. The assessment report states:

The subject site is zoned R2 Low Density Residential development. The proposed development is defined as "multi dwelling housing" which is defined as follows:

Multi dwelling housing

Multi dwelling housing is not a permissible land use within the zone.

To provide for the housing needs of the community within a low density residential environment.
To enable other land uses that provides facilities or services to meet the day to day needs of other residents.
To provide a suitable low scale residential character commensurate with a low dwelling density.
To ensure a high level of residential amenity is achieved and maintained.

The proposed development while is more typical to a medium density residential environment it is not to dissimilar to the existing built form within the Green Valley locality which is characterised by larger two storey dwellings which occupy a large building footprint and have limited landscaping.

The proposed development incorporates elements into the proposal which are consistently found in the locality. This includes provision of adequate setbacks to the street (Rodeo Drive) as well as adjacent properties which provides a reasonable space for landscaping as well as minimising impacts on adjoining properties in regards to overshadowing and overlooking.

The proposal has been amended to provide grouping townhouses, particularly along the eastern elevation rather then a continuous row of townhouses. This amendment has assisted in the reduction of the built form and the mass of the development and one which is more compatible with existing developments in the locality.

It is considered that the proposal achieves a high standard of urban design which is compatible with the amenity and character of the area. Amenity of adjoining properties is maintained through the incorporation of a 6m building setback to the adjoining eastern boundary. This provides opportunities for landscaping and ensures solar access of the adjoining residential property is not compromised. In addition, the townhouses adjacent to the eastern boundary are orientated so that entrances overlook this setback which provides opportunity for casual surveillance. In addition, it is considered that the proposed development will not compromise amenity of adjoining properties in regards to noise and traffic generation.

3.3 Principle Development Standards

The principle development standards relating to the proposed development are outlined below:

CLAUSE REQUIRED PROPOSED COMPLIANCE

Clause 4.3 Height
of Buildings
The building height is not to exceed the maximum building height as shown on the Height of Buildings Map.
The maximum building height for the site is 8.5 m. The proposal complies by providing a maximum building height of 7 m Yes

Clause 4.4 Floor Space Ratio
The floor space ratio is not to exceed the maximum shown on the Floor Space Ratio Map.
Applicable FSR to the site is 0.5:1 The proposal provides a FSR of 0.47:1 Yes

As outlined in the table above the proposal complies with the principle development standards contained within LLEP 2008.

18 The determination of this matter also requires consideration of the provisions of DCP No 2, including the following development control map.

FIGURE 1: EXTRACT FROM ROAD LAYOUT MAP OF DCP No.2

19 Consideration of the DCP 4 provisions is also required and the development assessment shows that this amended proposal complies with the relevant controls. The assessment concludes:

Conclusions

20 Having considered the evidence, including the objections and undertaken a view, I am satisfied the consent orders should be granted. This application was lodged when LEP 2007 was the prevailing control. It allowed suitable multi unit housing development with consent. However, the original application was non-compliant with a number of the controls, particularly clause 19 that restricted access from the major road, Cowpasture Road.

21 Since lodging the appeal, LEP 2008 has been gazetted and it now prohibits this form of development. But LEP 2008 contains the savings clause 1.8A that allows the application to be considered on the basis of the original LEP provisions, together with the LEP 2008 provisions being an exhibited but not yet commenced plan. As the initial application was not finally determined, then determining weight is not necessarily given to LEP 2008.

22 Under these circumstances, I accept that it is reasonable for the application to retain the benefit of the savings clause and have the application determined on this basis. Consequently, the application has been amended by deleting the access from Cowpasture Road and the number of new dwellings reduced to 24.

23 Having considered the afore-mentioned council assessment, I am satisfied that the amended application demonstrates reasonable compliance with the zone objectives in LEP 2008. Also, I rely on the assessing officers opinion that:

The proposal has been amended to provide grouping townhouses, particularly along the eastern elevation rather than a continuos row of townhouses. This amendment has assisted in the reduction of the built form and the mass of the development and one that is more compatible with existing developments in the locality.

24 In allowing the development, I also given significant weight to the lot orientation and location of this property within the residential release area and the associated impacts. It appears “relatively compounded” within its boundaries, which significantly reduces any adverse amenity impacts, as follows.

25 Western boundary; this comprises Cowpasture Road that is a designated, restricted access major road. As such, a relatively high acoustic barrier wall will be constructed along this boundary that substantially reduces any view of the development, thereby minimising any amenity impacts.

26 Southern boundary; this adjoins the Shell service centre. The residential development has an adequate set back from the gas facilities and with intervening landscaping there should not be any unreasonable impacts from the development.

27 Northern boundary; this is a narrower boundary of the property that fronts the drainage reserve adjacent to other residential properties. The drainage reserve imposes a restriction on general public access to the site and a reasonable separation distance from the other residential properties and taking into account the opportunities for intervening landscaping, then I am satisfied any amenity impacts should be consistent with that of the neighbourhood.

28 Eastern boundary; this adjoins Mrs Oliveri’s property, who has lodged detailed objections. However it seems inevitable that the amenity relationship between these two properties will change due to the zoning provisions that allow a significant increase in density for both properties from that previously established. Consequently, there is likely to be more dwellings backing onto the objector’s property.

29 However, it appears that the proposed dwellings along this common boundary are attached, 2 –storey townhouses, with each pair being separated by approximately 2m. As these dwelling are on the equivalent of a 15m wide lot, I agree with the planning assessment that the eastern presentation will be similar and compatible with the other large nearby dwellings. Therefore I consider the extent of any incremental increase in density would be largely indiscernible in the subject context and not of sufficient magnitude to warrant rejection.

30 Furthermore, it seems to me that taking into account the relative isolation of the site and the likelihood of future residential development on the adjoining eastern land, then the built form will have a reasonable degree of consistency with the intensive, existing built form in this neighbourhood.

Access

31 As the original access to the development from Cowpasture Road did not comply with the LEP, the amended application proposing access through the adjoining eastern property effectively satisfies this DCP control for access. I note that this requirement is covered by a deferred commencement condition, which requires arrangements to be made with the adjoining owner to achieve this outcome. Notwithstanding this, I am satisfied that the proposed road on this alignment is required to achieve the orderly development of this land in accordance with the DCP provisions.

32 Insofar as there was some discussion about the form of the deferred condition No 1, I accept the council’s submission that it is preferable for the council to be a party to the proposed easement in order to achieve future orderly development of this land.

33 For these reasons then, I am satisfied that the objections to this amended application are not sufficient to reject the application and accordingly the consent orders are granted.

Court orders

34 The Court orders by consent.

2 Development Consent be granted to Development Apllication No 605/2008 for the construction of 24 townhouses comprising 16 x 3 bedroom dwellings and 8 x 4 bedroom dwellings, 54 car parking spaces provided at grade and basement level, construction of boundary fencing and landscaping works on the land at Lot 32 in Deposited Plan 886117, Cowpasture Road, Green Valley, subject to the conditions set out in Annexure A.

3 The exhibits may be returned except 1 and A.

R Hussey

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Kycel Pty Ltd trading as ACA Design Consultants
v
Liverpool City Council

Schedule A
Conditions Relating to a “Deferred Commencement” Consent pursuant to Section 80(3) of the Environmental Planning & Assessment Act, 1979

PART A

Deferred Commencement Consent

A. Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) this development consent is not to operate until the applicant satisfies Liverpool City Council (“Council”) as to the following matters:

NOTE:

b. The owner/applicant must enter into a legally binding agreement/indemnity with Council to control the access and operation of the garbage servicing activities across the easement created pursuant to condition A a. of these deferred commencement consent. This agreement must be inclusive and binding on successive owners in perpetuity (or until the easement is dedicated as a public road to Council). All costs involved are to be borne by the applicant.

i. In any bedroom within the development: 35dB(A) at any time between 10pm and 7am; and
ii. Anywhere else in the development (excluding garages, bathrooms, kitchens and hallways): 40dB(A) at any time.

(iii) The acoustic assessment must also provide design and construction details for the noise barrier (maximum 2m in height) which is to be constructed along the full frontage to Cowpasture Road (western boundary) and the southern boundary. All noise barriers are to be at the full cost to the developer.

e.
(i) Design details (including schedule of finishes and colours) of acoustic fencing to Cowpasture Road (western boundary) and the southern boundary must be submitted to and approved by Council.
(ii) Fencing details are also to be submitted to and approved by Council for fencing and additional screening between private open space/courtyards of the individual townhouses. This is to include sections/elevations and details of schedule of finishes/colours.

f. A revised BASIX Certificate that is consistent with all approved plans must be submitted to and approved by Council.

g. A contamination assessment is to be undertaken by a qualified consultant in accordance with State Environmental Planning Policy No. 55 – Remediation of Land and Contaminated Land Planning Guidelines. The investigation is to verify whether the site is suitable (or will be suitable after remediation) for the purpose of residential development and the site does not pose a threat or risk to human health.

Should the investigation identify that the site is not contaminated, a Site Audit Summary and a Site Audit Statement is to be carried out by an accredited EPA consultant and is to be submitted to Liverpool City Council for consideration. The summary and statement is to comment on and verify that all investigations carried out have adhered to the relevant standards, procedures and guidelines.

Should the investigation identify that land is contaminated a Remedial Action Plan is to be prepared by a qualified consultant. The Remedial Action Plan (RAP) is to be be submitted to Liverpool City Council for consideration and approval.

At the completion of all remediation works a Validation Report is to be submitted to Liverpool City Council. The Validation Report is to certify that all requirements contained within the RAP have been carried out and the site does not pose a threat or risk to human health and that the site is suitable for its intended use.

The period within which the applicant must produce evidence to satisfy the Council as to all matters set out in condition A above is 12 months from the date of grant of this consent.

If the applicant satisfies the Council as to the matters set out in condition A above, within the time frame specified above , the Council will give notice to the applicant of the date from which the consent operates in accordance with the provisions of section 80(3) of the EP&A Act and the development consent shall then operate from that date subject to the conditions set out in Part B that follows.

PART B : CONDITIONS

Having regard to the Deferred Commencement Conditions in Part A, this consent cannot operate until such time as the Council has given written notice to the applicant of the date from which the consent operates in accordance with the provisions of section 80(3) of the EP&A Act

A. THE DEVELOPMENT

The following conditions have been imposed to achieve the objectives of the relevant planning instruments and policies.

GENERAL

1. Development must be carried out generally in accordance with Development Application received 30 November 2007 and the following plans and documentation:

Site Plan (Basement) Drawing No.3111 01/24 Issue C;
Site Plan (Ground Floor) Drawing No.3111 02/24 Issue C;
Site Plan (First Floor) Drawing No.3111 03/24 Issue C;
Floor Plans (Units 1,2 and 3) Drawing No.3111 06/24 Issue B;
Section A-A and Elevations (Units 1,2 and 3) Drawing No.3111 07/24 Issue B;
Elevations (Units 1, 2 and 3) Drawing No.3111 08/24 Issue B;
Floor Plans (Units 4 and 5) Drawing No.3111 9/24 Issue B;
Elevations (Units 4 and 5) Drawing No.3111 10/24 Issue B;
Basement Level (Units 6-21) Drawing No.3111 11/24 Issue C;
Floor Plans and Elevations (Units 6 and 7 and Units 16 and 17) Drawing No.3111 12/24 Issue B;
Floor Plans and Elevations (Units 8 and 9 and 14 and 15) Drawing No.3111 13/24 Issue B;
Floor Plans and Elevations (Units 10 and 11 and 12 and 13) Drawing No.3111 14/24 Issue B;
Floor Plans (Units 18-21) Drawing No.3111 15/24 Issue B;
Elevations and Section (Units 18-21) Drawing No.3111 16/24 issue B;
Floor Plans, Section A-A and Elevations (Unit 22), Drawing No.3111 17/24 Issue C;
Floor Plans (Units 23 and 24) Drawing No.3111 18/24 Issue B;
Elevations (Units 23 and 24) Drawing No.3111 19/24 issue B; and
Streetscape and Group Elevations Drawing No.3111 20/24 Issue B

(b) Schedule of Finishes prepared by ACA Design Consultants, Drawing No.3111 24/24 Issue B and dated 07.05.09;

(c) Hydraulic Plans prepared by D’Amici Colombo Pty Ltd, Job No.19228 Sheets 1 and 2 Revision B and dated 19 May 2009;

(d) Acoustic Assessment as approved in accordance with deferred commencement condition Ad;

(e) Fencing details as approved in accordance with the deferred commencement condition Ae; and

2. The premises must not be occupied until such time as an “Occupation Certificate” has been issued by Council or a Private Certifier.

3. The Principal Certifying Authority (Building) and/or the Accredited Certifier (Subdivision) shall ensure that all compliance certificates required by this development consent are referenced to the Condition Consent number. The Compliance Certificate is to state that the works as constructed comply fully with the required condition of consent being acted on by the certifier.

GENERAL TERMS OF APPROVAL

4. All General Terms of Approval issued by the NSW Department of Water and Energy shall be complied with prior, during, and at the completion of construction, as required in accordance with the General Terms of Approval dated 19 May 2009. A copy of the General Terms of Approval are attached to this decision notice.

SECTION 94 CONTRIBUTIONS

5. As a consequence of this development, Council has identified an increased demand for public amenities and public services. The following payment is imposed in accordance with Liverpool Contributions Plan 2001 as amended.

The total contribution is $ 539, 642

Whitlam Centre Extensions, Liverpool Central Library and Local Land - Early acquisition (Middleton Grange)

Contributions, with the exception of those for the Whitlam Centre Extensions, Liverpool Central Library and Local Land - Early acquisition (Middleton Grange) will be adjusted at the time of payment.

Capital Works, Administration, Professional and Legal Fees Components

Capital works, Administration, Professional and Legal Fees components will be adjusted quarterly in line with the Consumer Price Index (all groups index number for Sydney) using the following formula:

Contribution at the time of payment = C x CPI2
CP11

Where:
C = Original contributions as shown on the consent
CPI2 = Latest "Consumer Price Index: All Groups Index Number" for Sydney available from the Australian Bureau of Statistics at the time that the contribution is to be paid
CPI2 = Latest "Consumer Price Index: All Groups Index Number" for Sydney available from the Australian Bureau of Statistics as at the time of granting the development consent

Land Component

Contribution at the time of payment =

C x L2

L1

C

L2 = Latest Average Estimated Land Acquisition Cost per square metre published by the Council at the time that the contribution is to be paid
L1 = Latest Average Estimated Land Acquisition Cost per square metre published by the Council at the time of granting the development consent

Where a developer undertakes to transfer land or provide a work which is included in the Contributions Plan, the appropriate payments may be reduced accordingly.

The Contributions Plan may be inspected at Council’s Administration Centre, 1 Hoxton Park Road, Liverpool or at

Please note. Payment must be accompanied by the attached form.

This contribution involves contributions for Local Streets and Traffic Facilities and Local Drainage. It should be noted that any further development consents for the development of a particular site will contain a condition requiring contributions for the following facilities.

(i) District Roads and Traffic Facilities
(ii) District Drainage Basins
(iii) Landscape Buffer Land
(iv) Landscape Buffer Embellishment
(v) Professional and Legal Fees

ROAD CLOSURES

6. Application must be made to Council’s Transport Planning Section and the Roads and Traffic Authority for any road closures. The application is to include a Traffic Control Plan, prepared by a suitably qualified person, which is to include the date and times of closure and any other relevant information.

INTERRUPTIONS TO TRAFFIC / WORKS WITHIN THE ROAD RESERVE

7. Notice must be given to Council’s Transport Planning Section and the Roads and Traffic Authority of any interruption to pedestrian or vehicular traffic within the road reserve, caused by the construction of this development. A Traffic Control Plan, prepared by a suitably qualified person, which is to include the date and times of closure and any other relevant information must be submitted for approval, 48 hours prior to implementation. This includes temporary closures for delivery of materials, concrete pours etc.

8. The applicant must obtain Section 138 Consent from Council prior to undertaking any works within the road reserve in accordance with the Roads and Traffic Authority’s Publication ‘Traffic Control at Work Sites’.

9. All works within the road reserve are to be at the applicants cost and all signage is to be in accordance with the Roads and Traffic Authority’s ‘Traffic Control at Worksites Manual’ and the ‘Roads and Traffic Authority’s Interim Guide to Signs and Markings’.

10. If a Works Zone is required, application must be made to Council’s Transport Planning Section. The application is to indicate the exact location required and the applicable fee is to be included. If parking restrictions are in place, you will need to submit an application to have these moved.

EXTERNAL LIGHTING

11. The reflectivity index of glass used in the external facade of the building is not to exceed 20%.

12. External lighting is to be provided and positioned to avoid light spill onto adjoining properties.

13. Any external lighting is to incorporate full cut-off shielding and is to be mounted so as to not cause any glare or spill over light nuisance within the development or to neighbouring properties or road users.

CAR PARKING AND DRIVEWAYS – GENERAL

All car parking areas provided are to be in accordance with Council’s Development Control Plan 2008 – Part 1.2. One (1) of the spaces of nominated for visitor parking is to be designed and signposted/marked for the specific use of disabled drivers only, in accordance with Australian Standard AS1428.1.

15. The internal driveway and car parking area shall be designed in accordance with AS2890.1 Off street car parking.

16. Lighting to the car parking area is to provide uniform lighting across common areas and car parking area. Outdoor lighting is to be located and directed in such a manner as not to create a nuisance to surrounding properties.

17. Driveways and car parking areas are to be constructed using decorative paving materials such as exposed aggregate concrete, patterned or stencilled concrete, coloured concrete or paving bricks.

18. All visitor parking areas are to be clearly signposted limiting car parking for visitors only. The applicant is to cover the costs of installation and maintenance of the signage.

19. Driveways are to conform to Council standard requirements for vehicle crossings as detailed in Council’s design and construction specifications for subdivisions (as amended) and as per the requirements in Council’s Development Control Plan.

20. Driveway entrances must be located clear of all utility services. It is recommended that discussion be held with the relevant authorities before construction works commence. Council does not accept any responsibility towards these services.

21. A concrete vehicular footpath crossing must be provided at the entrance to the property over Council’s footpath/pedestrian way. This crossing must be constructed in accordance with Council’s standard requirements for medium density . A crossing application must be made at Council’s Customer Service Centre together with payment of the standard fee. Conditions apply, including requirement for inspection prior to consent to pour, by Council’s driveway inspector. The payment of crossing application fees must occur prior to the commencement of any works on the site.

B. OPERATIONAL MATTERS

These conditions pertain to the use of the site and have been imposed to ensure that the development and its operations do not interfere with the amenity of the surrounding area.

MANAGEMENT OF CAR PARKING AND BASEMENT AREAS

23. All vehicles are to enter and exit the site in a forward direction.

24. Internal roads, driveways and car parking spaces (including vehicle manoeuvring areas) must not be used for the storage or display of goods, materials, waste or equipment. The spaces must be available at all times for all vehicles associated with the development.

25. Goods, equipment, waste material, etc is not to be stored within the vehicular manoeuvring and parking areas. These areas are to be kept at all times for the free movement of vehicles.

WASTE STORAGE AND DISPOSAL - GENERAL

26. The Waste Management Plan submitted to and approved by Council must be adhered to at all times throughout all stages of the development. The applicant is required to keep supporting documentation (receipts/dockets) of waste/recycling/disposal methods carried out, which must be produced upon the request of Council or any other authorised officer. Note: Any non-compliance with this requirement will result in penalties being issued.

LANDSCAPING

27. All landscaping shall be maintained in accordance with the approved plan and in a healthy state in perpetuity by the existing or future owners and occupiers of the property. Should any of the landscaping die, it is to be replaced with vegetation of the same species and to the greatest extent practicable, the same maturity, as the vegetation which died or was removed.

C. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with, or incorporated in, the detailed plans and specifications which accompany the Construction Certificate:

GENERAL TERMS OF APPROVAL

28. A Controlled Activity Approval is to be issued by the NSW Department of Water and Energy prior to the issue of any Construction Certificate.

DEVELOPMENT CONSENT FOR CONSTRUCTION OF ACCESS ROAD

28A Prior to the issue of a Construction Certificate evidence is to be provided to Council to confirm that any necessary development consent/s has/have been obtained for the construction of the road across the easement for access/right of way referred to in deferred commencement condition “a” (as an extension of Rodeo Drive) which provides access to Lot 32 DP 886117 (the site the subject of this consent). The road design approved pursuant to that development consent is to be in accordance with the requirements of deferred commencement condition “a”.

DEVELOPMENT DETAILS

29. Fencing along the southern boundary is to be of masonry construction and is to achieve a minimum fire rating of 30 minutes. Design and construction details are to be submitted to and approved with any construction certificate application.

(a) A Permit to carry out works in Council’s drainage/recreation reserve or drainage easement, pursuant to Section 68 of the Local Government Act 1993. The work(s) in the drainage/recreation reserve requiring a Council Section 68 permit is a drainage channel.

31. The extension to Rodeo Drive must include K&G to the entire park frontage and an allowance must be made for bollards and or guide posts. All works associated with the construction of Rodeo Drive are subject to a separate application for an Engineering Construction Certificate.

32. Prior to the issue of any Construction Certificate a bond of $(TBA) must be paid to Council to cover any damage or accelerated fatigue of adjoining Council assets. The bond may be eligible for release after a period of 12 months has expired from the issue of a final Occupation Certificate.

(a) These plans must satisfy the following requirements:

34. Prior to the issue of any Construction Certificate the proposed drainage connection to the existing Channel must be made within Council’s land and not in the area of road widening identified for Cowpasture Road.

35. All on site detention shall be checked and certified by an accredited stormwater drainage designer prior to Issue of the Construction Certificate for Building Works.

STORMWATER

36. Stormwater is to be collected within the site and conveyed in a pipeline to the appropriate point of discharge as directed by Council and as detailed on the plans approved as part of this development application.
37. Common drainage lines are required to be designed for stormwater disposal, where land falls to the rear.

38. The site surface levels are to be designed so that site surface stormwater is deflected away from the buildings and neighbours boundary fences and does not cause nuisance of flooding of those areas for storm events less than a 1% AEP.

39. A suitably sized Gross Pollutant Trap (GPT) must be provided on the outlet pipe discharging storm water from the site. The size and type of GPT must be approved by Council prior to the issue of any Construction Certificate.

This plan shall also show existing and proposed surface contours within the site and along its boundaries with immediately adjacent properties, and shall define overland flow paths for storms which exceed the capacity of the underground pipe system.

PUBLIC ROAD DESIGN / CONSTRUCTION WITHIN ROAD RESERVE AREAS

41. All roads are to be designed to be graded in such a manner as to provide continuous surface drainage flow paths to appropriate points of discharge. In this context, these are to be into their roads or swales, as appropriate, connecting into the major trunk drainage system.

42. EROSION & SEDIMENT CONTROL – Erosion and sediment control measures shall be designed in accordance with the requirements of the Department of Housing 1998 manual “Managing Urban Stormwater – Soils & Construction” and Council specifications, and to the satisfaction of the Principal Certifying Authority. Approved measures shall be implemented prior to commencement of any works and maintained during construction and until all disturbed areas have been revegetated and established to the satisfaction of the Principal Certifying Authority.

TRAFFIC

(a) details of a passing bay to improve circulation and minimise vehicle conflict between the visitor car parking space no. 4 and dwelling number 1 and 24;

45. The traffic management plan is to be prepared by an accredited designer and submitted to and stamp approved by Council via a standard Section 138 Roads Act Permit application available at Council’s customer service counter. The stamped approved Roads Act Permit is to be obtained by the PCA for building prior to Issue of the Construction Certificate Building works. A copy of the stamped approved Roads Act Permit and Traffic Management Plan is to be available on the works site for inspection at any time by an authorised Council officer (representing the Road Authority).

GENERAL

(a) Three and four bedrooms dwellings: 10m³.

ACOUSTIC MEASURES

47. The recommendations prescribed in the approved Acoustic Assessment prepared in accordance with the deferred commencement conditions in Part A of this consent are to be clearly detailed on all plans and documents accompanying any Construction Certificate application.

CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN

(a) Back to base alarm systems shall be considered;

(b) Basement parking areas shall be painted a light colour;

(c) CCTV for the ground level entry/exit points, car parks, lifts and the exterior of the building shall be considered;

(d) Lighting is required to be designed in accordance with the Australian and New Zealand Lighting Standard AS1158. A lighting maintenance policy should be established. Security lighting should be installed in and around the building particularly over entry/exit points and car parking areas and shall not impact on any adjoining premises. The lighting should be vandal resistant, especially external lighting.

(e) Corrugated ramps should be considered to prevent skate boarding activities;

(f) Glazed tiling, patterned, porous and non solid surfaces reduce the award for graffiti offenders and shall therefore be considered;

(g) Video/intercom system to the main entry door to enable visitors to communicate with occupants prior to being admitted to the development is to be installed. The door lock should incorporate an electronically operated locking device to enable occupants to release the door electronically once the visitor has been identified;

DISABLED ACCESS

49. All plans accompanying the construction certificate application are to demonstrate and ensure that adequate provision is made for persons with disabilities, provided in accordance with the provisions of Building Code of Australia 1996 as amended and Australian Standard 1428.1. This is to include access, amenities, parking and facilities.

SALINITY

50. The site is identified as having moderate to high salinity potential. A Salinity Management Response is to be prepared by an appropriately qualified environmental consultant and is to be prepared in accordance with the Western Sydney Salinity Code of Practice (Nicholson, 2004), which is available at . A copy of the Salinity Management Response including recommendations are to be submitted to both Liverpool City Council and the PCA. The recommendations contained with the report are to be detailed on any plans and documents accompanying the construction certificate application.

STRUCTURAL DETAILS /SITE FILLING/RETAINING WALLS / BCA:

51. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated subsoil drainage and surface stormwater drainage measures, shall be designed strictly in accordance with the manufacturers details or by a practising Structural Engineer. Any required retaining walls are to be of masonry construction only.

52. Any proposed retaining walls on the property must be of masonry construction. Details are to be included with the plans and specifications accompanying the Construction Certificate.

(a) Complying with the Deemed to Satisfy Provisions; or

(b) Formulating an Alternative Solution, which complies with the Performance Requirements or is shown to be at least equivalent to the Deemed to Satisfy Provision, or a combination of (a) and (b).

(c) Should an “Alternative Solution” under the BCA be proposed, Council’s building surveyor shall be involved in the preparation of the Fire Engineered Design Brief (FEDB).

CONSTRUCTION AND PUBLIC SAFETY REQUIREMENTS

Reason: To keep safe the public way during development work on neighbouring land, the subject of this development consent.

FIRE SAFETY MEASURES

55. A schedule specifying all of the essential fire safety services, which are required for the building, shall be attached to the construction certificate and submitted to Council, in compliance with the provisions of the Environmental Planning and Assessment Act (Regulations) 2000.

D. PRIOR TO ANY WORK COMMENCING ON THE SITE

The following conditions are to be complied with prior to any work commencing on the site.

CONSTRUCTION CERTIFICATES

56. Prior to commencement of works detailed engineering plans and specifications relating to the work shall be endorsed with a Construction Certificate, in accordance with Section 81A of the Act, and a copy submitted to Council, with payment of any relevant fees. The fees will include damaged deposit, road opening, damaged inspection fee and any required Section 94 payment or bond. You are required to contact Council’s Customer Service Centre to confirm the current amounts.

57. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans.

GENERAL

58. No service works are to be carried out within the existing road reserve, including gas, electricity, sewer, water or communications until a road opening permit is received and all restoration fees and or bonds are paid to Council and receipted.

GRAFFITI

59. Prior to commencement of works a graffiti resistant coating shall be applied to any fences or structures that have frontage to a public area, for example a roadway, public reserve etc.

NOTIFICATION

60. Prior to commencement of works the applicant shall advise Council of the name, address and contact number of the Accredited Certifier, in accordance with Section 81A (4) of the Act.

61. The Accredited Certifier shall advise Council, of the date it is intended to commence the work which is the subject of the “Complying development” certificate by completing a “Notice of Commencement of BUILDING OR SUBDIVISION WORK ” form available from Council’s front counter. A minimum period of two (2) working days, notification shall be given.

SITE FACILITIES

63. Access to the site is to be provided only via the all-weather driveway on the property and is not to be provided from any other site, or location. (Refer to Council’s Sediment & Erosion Control Policy).

SITE NOTICE BOARD

PLANS/ REPORTS
65. A dilapidation report is to be undertaken prior to commencement of works. This shall include clear photos and descriptions of all existing Council infrastructure adjacent to the subject site. A copy of this report is to be provided to Council.

E. DURING CONSTRUCTION/ WORKS

The following conditions are to be complied with whilst works occurring on the site:
HOURS OF CONSTRUCTION

66. Construction/ civil work is only permitted on the site between the hours of 7am to 6pm Monday to Friday and, 8am to 1pm on Saturday. No work will be permitted on Sundays or Public Holidays, unless otherwise approved by Council.

67. Deliveries shall occur only between the hours of 7am and 7pm, Monday to Friday and, between 7am and 7pm on Saturday, and shall not occur at any time on Sundays or Public Holidays.

SITE CONTAMINATION

LANDFILL

70. Where site filling is necessary, it must be carried out in accordance with Council’s Construction Specification (as amended), AS3798 Guidelines for Earthworks for commercial and Residential Development (as amended) and approved drawings by the accredited certifiers or Council. A minimum of 95% standard compaction must be achieved and certified by a suitably qualified geotechnical engineering consultant. Testing is to be in accordance with Council specifications for “Construction of Subdivisional Roads and Drainage Works.”

72. Trucks transporting fill are to have their loads covered.

73. Where the land is to be filled, graded or roadworks constructed, it will be necessary that regular watering down of operations be carried out. Where the creation of dust during earthworks is a problem, Council may direct that such work is not to proceed when the wind velocity exceeds five knots.

AIR QUALITY AND EROSION CONTROL

74. Prior to commencement of works dust screens are to be erected around the perimeter of the subject land, and maintained during land clearing, excavation and construction and until such time as the soil is stabilised.

75. Where operations involve excavation, filling or grading of land, or removal of vegetation, including ground cover, dust is to be suppressed by regular watering until such time as the soil is stabilised to prevent airborne dust transport. Where wind velocity exceeds five knots the Principal Certifying Authority may direct that such work is not to proceed.

76. All disturbed areas shall be progressively stabilised and/or revegetated so that no areas remain exposed to potential erosion damage for a period of greater than 14 days.

77. Vehicular access to the site shall be controlled through the installation of wash down bays or shaker ramps to prevent tracking of sediment or dirt onto adjoining roadways. Where any sediment is deposited on adjoining roadways is 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.

WATER QUALITY

78. All topsoil, sand, aggregate, spoil or any other material shall be stored clear of any drainage line, easement, water body, stormwater drain, footpath, kerb or road surface and there shall be measures in place in accordance with the approved Soil and Water Management Plan and or Erosion and Sediment Control Policy.

79. Sediment and erosion control measures are to be adequately maintained during the works until the establishment of grassing.

POLLUTION CONTROL

80. Waste water from the washing of concrete forms or trucks shall not enter the stormwater drainage system. To ensure that the Protection of the Environment Act is not breached.

81. The developer is to maintain all adjoining public roads to the site in a clean and tidy state, free of excavated “spoil” material. To ensure that the Clean Waters Act is not breached.

GENERAL SITE WORKS

82. The cost of any necessary adjustments to utility mains and services shall be borne by the applicant.

83. Prior to commencement of works the property must be surrounded by a security fence, and the gate must be locked outside the operating hours to prevent unauthorised tipping at the property.

84. Care shall be taken by the applicant and the applicant’s agents to prevent any damage to adjoining properties. The applicant or the applicant’s agents may be liable to pay compensation to any adjoining owner if, due to construction works, damage is caused to such an adjoining property.

85. Alterations to the natural surface contours must not impede or divert natural surface water runoff in such a way that it causes a nuisance to adjoining property owners.

F. PRIOR TO OCCUPATION OF THE BUILDING/ PREMISES
The following conditions are to be complied with prior to the occupation of the building:

GENERAL

86. The premises must not be occupied until an occupation certificate is issued by the Principal Certifying Authority (PCA). Copies of all documents relied upon for the issue at the occupation certificate must be attached to the occupation certificate and registered with Council. These documents shall include surveyor reports and compliance certificate.

86A. Prior to the issue of an Occupation Certificate the road the subject of the development consent referred to in condition 28A (for the construction of the road across the easement for access/right of way referred to in deferred commencement condition a (as an extension of Rodeo Drive)) must be completely constructed in accordance with that development consent and to Council’s satisfaction.

87. A Surveyor’s Certificate is to be submitted to Council prior to the issue of any Occupation Certificate to certify that the proposed land surface and finished floor levels satisfy Council’s requirements.

88. Prior to the issue of any Occupation Certificate the car parking areas to be appropriately line marked and sign posted in accordance with the approved plans.

89. Prior to the issue of any Occupation Certificate street numbers must be prominently displayed at the front of the development in a contrasting colour to the building materials and at the front of each individual unit to comply with the Local Government Act 1973, Section 124(8). The number should be a minimum height of 120mm and be visible at night.

90. All boundary fencing as nominated on the approved architectural plans and in accordance with the deferred commencement conditions in Part A of this consent, is to be provided and completed at the full cost of the developer. The boundary fence is to be consistent with the schedule of finishes as approved pursuant to the deferred commencement conditions in Part A of this consent. All boundary fencing is to be completed to the satisfaction of Liverpool City Council prior to the issue of the Occupation Certificate.

91. Prior to the issue of an Occupation Certificate, a 1.2 metre wide concrete footpath must be constructed to the full frontage of the Rodeo Drive extensions and cul-de-sac. These works are subject to a separate 138 application.

BASIX

92. Supporting documentation issued by a suitably qualified person who has installed or carried out the works associated with the BASIX commitments shall be submitted to and approved by Council prior to the issue of any Occupation Certificate.

LANDSCAPING

CERTIFICATES

94. A qualified acoustic engineer is to certify that all the recommendations contained in the Noise Assessment approved in accordance with the deferred commencement conditions in Part A of this consent have been implemented prior to the issue of any Occupation Certificate.

95. The outdoor lighting system across the car parking area is to be installed in accordance with AS4282 “control of obtrusive effects of outdoor lighting: as is to be the minimum level of illumination necessary for safe operation prior to the issue of any Occupation Certificate. A compliance certificate or equivalent is to be issued by an appropriately qualified person to certify that the lighting system has been designed and installed in accordance with AS4282.

96. Prior to the issue of any Occupation Certificate certification is to be provided by a suitably qualified environmental consultant which demonstrates that the recommendations and appropriate measures as outlined in the Salinity Management Response have been implemented and adhered to in the construction of the development.

TRAFFIC

(a) Deleted.

(b) A passing bay area which is to be appropriately signposts that it is a passing bay area and that it is not be used for car parking;

(c) Appropriate traffic devices such as mirrors to ensure no traffic conflict on internal driveways

(d) Appropriate levels of lighting to car parking areas and vehicular entry and exit points;

(e) Nominated pedestrian areas within internal driveways and basement car parking area are to have non slip floor surface;

(f) Line marking for driveway entry/exit points and signage nominating visitor parking spaces only;

98. Prior to the issue of any Occupation Certificate a sign measuring 600mm x 900mm shall be erected which is visible to persons driving along Lucas Avenue and Nuwarra Road that indicates on-site parking is available for use for visitors (residential component) to the site.

99. All vehicular crossings as shown on the stamped approved plans must be constructed for the full width of the footpath and by Council’s authorised contractors at the developers expense prior to the issue of any Occupation Certificate.

TERMITE PROTECTION

100. To protect the buildings from subterranean termite, termite barriers must be installed in accordance with AS 3660.1-1995 to the underside and penetrations of the concrete slab floor prior to the issue of any Occupation Certificate.

(a) The method of protection;

(b) The date of installation of the system;

(c) Where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label;

102. Prior to the issue of any Occupation Certificate certification from a licensed pest controller shall be submitted to the consent authority certifying that the termite protection system installed complies with AS3660.1.

WORKS AS EXECUTED PLAN

SERVICE ARRANGEMENTS

104. Written evidence (Section 73 Certificate) is to be submitted to the PCA prior to the issue of the Occupation Certificate.

105. Notification of Arrangement for the development from Integral Energy shall be submitted to Council prior to the issue of any Occupation Certificate.

106. A Compliance Certificate for the development from an approved local telecommunications carrier shall be submitted to Council prior to the issue of any Occupation Certificate.

GARBAGE SERVICES

107. Prior to the issue of the Occupation Certificate, the owner/developer of the site is to contact Liverpool City Council – Sustainable Environment section to determine the required number of waste/garbage bins for the residential component of the development as well as serving requirements. These waste/garbage bins are to be kept at all times within the residential waste/garbage compartment rooms except before and after collection days. Waste/garbage bins are to be returned to the compartment room as soon as practical after waste has been collected.

R Hussey

Commissioner of the Court

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Citations

Kycel Pty Ltd Trading as ACA Design Consultants v Liverpool City Council [2009] NSWLEC 1218

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CITATION:	Kycel Pty Ltd Trading as ACA Design Consultants v Liverpool City Council [2009] NSWLEC 1218
PARTIES:	APPLICANT Kycel Pty Ltd Trading as ACA Consultants RESPONDENT Liverpool City Council
FILE NUMBER(S):	11036 of 2008
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Mulit unit housing development; permissibility; character of neighbourhood; impact on neighbourhood
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 2007 Liverpool Local Environmental Plan 2008
DATES OF HEARING:	18 June 2009, 19 June 2009
DATE OF JUDGMENT:	6 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr S Griffith (Solicitor) SOLICITOR Pikes Lawyers RESPONDENT Mr P Hudson (Solicitor) SOLICITOR Marsdens Law Group

CLAUSE	REQUIRED	PROPOSED	COMPLIANCE
Clause 4.3 Height of Buildings	The building height is not to exceed the maximum building height as shown on the Height of Buildings Map. The maximum building height for the site is 8.5 m.	The proposal complies by providing a maximum building height of 7 m	Yes
Clause 4.4 Floor Space Ratio	The floor space ratio is not to exceed the maximum shown on the Floor Space Ratio Map. Applicable FSR to the site is 0.5:1	The proposal provides a FSR of 0.47:1	Yes