Lifestyle Manor Anglesea Pty Ltd v Waverley Council - [2009] NSWLEC 1156

Land and Environment Court

of New South Wales

CITATION: Lifestyle Manor Anglesea Pty Ltd v Waverley Council [2009] NSWLEC 1156

PARTIES:
APPLICANT
Lifestyle Manor Anglesea Pty Ltd
RESPONDENT
Waverley Council

FILE NUMBER(S): 10011 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Section 96 Modification to restriction on roof top plant room levels, visual impact, noise, solar access

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
State Environmental Planning Policy Seniors Living 2004
State Environmental Planning Policy No. 15

DATES OF HEARING: 18 May 2009

EX TEMPORE JUDGMENT DATE: 18 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Driscoll (solicitor)
SOLICITOR
BCP Lawyers & Consultants
RESPONDENT
Mr K Webber (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 May 2009
10011 of 2009 Lifestyle Manor Anglesea Pty Ltd v Waverley Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

Background.

1 This appeal was lodged against council’s refusal to allow a s 96 modification application to delete condition 3(c) of the development consent, which restricts the height of plant room structures on the roof area of a part 3 and part 4 – storey seniors living development at 33-53 Anglesea Street, Bondi.

2 The particular condition appealed is condition 3(c):

The plant on the roof area is not to exceed RL 95.5 and is to be appropriately screened to integrate with the roof.

3 This condition refers the proposed construction of 3 x air-conditioning structures and solar panels on the roof of the approved development. The structures are variable in floor area and are proposed to have an increased height to RL 97.4.

4 The issues identified for the appeal mainly concern the visual impacts of the increased height of the A/C plant. However, other issues were raised by the neighbours concerning potential noise disamenity and loss of solar access.

5 Detailed evidence was presented by Ms R Holten, council town planner and Mr G Shiels, applicant’s town planner. Other evidence was presented by a number of residents and these have been considered together with the written objection in council’s bundle of documents.

6 During the appeal process, the applicant offered a further detailing amendment to reduce the eastern elevation vertical height by 600 mm and then incorporate a 45 degree return so as to ensure adequate sound attenuation. The purpose of this amendment was to restrict visibility of the A/C plant enclosure from the public domain.

7 Having considered the evidence and undertaken a view, I am satisfied this particular modification now merits consent, along with other modifications agreed to by council. One of the main concerns expressed by the neighbours is that the height of the building has been progressively increased to the point that they consider no further increases should be allowed.

8 In this regard, I note that the s 96 modification relates only to the incremental change in height arising from the A/C enclosures, not the overall building. However, reference to Drawing No 11 shows a representative section through the building. This identifies the street level elevation together with the roof level parapet and A/C plant enclosures. It is apparent from this section that the A/C plant enclosure is unlikely to be discernible in the near vicinity or from the surrounding areas. This is agreed by the planners.

9 From this section I also note that it is intended to provide landscaping, which on maturity will provide screening of sight lines towards the roof elements. Accordingly, I do not consider any visual impacts of the proposal will be of sufficient magnitude to warrant rejection of this application. It is also apparent in the view corridors of this area that there are a number of other multi-level residential units with plant rooms on the roof. As such any longer distance potential views of the proposed plant enclosure is not a foreign element in this mixed-density area.

10 Apart from this, the vacant unit No 35 in the completed first stage of the development was inspected to assess view impacts from this position. Its floor level is equivalent to the proposed roof structure and the A/C enclosure will be visible from this unit. As the new building is part of the overall development, I understand that the details of the proposed plant enclosure will be disclosed to future purchasers of this unit, who can assess its impact relative to their requirements.

11 Notwithstanding this, I am satisfied the structures represent a relatively minor intrusion into the overall outlook from units on this level. The more attractive distant ocean views are maintained. Whilst the view of the enclosures from this level is a negative aspect, I do not consider it of sufficient magnitude to warrant refusal.

12 The associated concern was that the roof- top A/C units would cause noise disamenity, irrespective of the sound proofing enclosure. However, this aspect was assessed by Mr M Verth, from the acoustic consultants Heggies. He examined the proposed plans and provided advise on the specification for the sound-proofing barriers for the enclosures to satisfy current noise control emission criteria.

13 In this regard, relevantlycondition 14 provides:

14 Therefore, installation of the recommended sound proofing barriers should achieve the recognised criteria in condition 14, consequently addressing this concern to a reasonable extent.

15 Another issue raised concerned loss of solar access. Some of the neighbours considered that the increased height would create further shading along Anglesea Street. However, Mr Shiels says that the shadow diagrams for the approved building show no significant incremental increase in shadowing of the subject properties up to 3pm in mid-winter, due to the plant rooms. Some shadowing may occur after this time.

16 Mr Shiels then says that the relatively minor changes to the roof-top structures will make no material change to the level of shadowing arising from the approved development. I rely on this opinion to conclude that the modification does not warrant rejection on the basis of additional shadowing of adjoining residential properties. Whilst the approved building may cause additional shadowing after 3pm, nevertheless the proposal satisfies the local controls to maintain adequate solar access for a 2-3 period up until 3pm.

Conclusions

17 In the ultimate determination of this s 96 application, I am satisfied that it relates to the same development and that it has been notified. The objections have been considered as aforementioned, resulting in my conclusion that this application satisfies the relevant planning controls merits conditional consent.

Annexure ‘A’

Conditions of Consent

Lifestyle Manor Anglesea Pty Ltd v Waverley Council

Modified by NSWLEC 18/5/2009

(a) Architectural Plan Nos DA01-18 Issue C, tables and documentation prepared by Brian Meyerson Architects, dated May 07, and received by Council on 24 July 2007, except where amended by Architectural Plan Nos DA08-14 and DA16 Issue G, prepared by Brian Meyerson Architects, dated Sep 08, and received by Council on 23 September 2008;

(b) Sketch details prepared by Brian Meyerson Architects and received by Council on 12 September 2007;

(c) Landscape Plan No. DA320.01-02 Issue A and documentation prepared by Michael Zinn, dated October 2006, and received by Council on 20 November 2006;

(d) Details included in the Statement of Environmental Effects and supporting Appendices prepared by GSA Planning and received by Council on 24 July 2007;

(e) Energy Efficiency Requirements prepared by Heggies dated 19 July 2007, and received by Council on 24 July 2007;

(f) Schedule of external finishes and colours received by Council on 24 July 2007;

(g) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006; and

(h) Rooftop Plant Noise Assessment prepared by Heggies Pty Ltd dated 26 May 2008 and received by Council on 23 September 2008.

Pursuant to the applicant's objection under State Environmental Planning Policy No. 1 prepared by GSA Planning and the powers delegated to Council by the Director of Planning, the provisions of Clause 38(4) of State Environmental Planning Policy (Seniors Living) 2004 are waived to permit the heights as proposed.

3. general modifications

T he proposal shall be amended as follows:

(a) The height of the front fence to Anglesea Street and returning along the side boundaries forward of the building line is to be a maximum of 1.2m above the adjacent footpath level or ground level along the side boundary with the solid component of the fence not to exceed 900mm on the front elevation;

(b) The brick fence being designed in accordance with the requirements of Council's Standard for Brick Fences;

(c) The maximum height of the acoustic screens surrounding the plant areas are to be R.L. 97.4 except for the eastern face of the acoustic screens, which are to be a maximum height of R.L. 96.8 returning on the northern and southern sides at a rake of 45 degrees up to R.L. 97.4 (amended by the Land and Environment Court on 18 May 2009) ;

(d) Provision of a deliveries/loading bay within the car park to provide for parking for service vehicles to the site and in particular for deliveries for the kitchen, with this space to be reassigned from a ‘Resident’ car space;

(e) The remaining five designated ‘Resident’ car spaces are to be redesignated as ‘Visitor’ car spaces;

(f) The kitchen exhaust fan is to be installed in accordance with the Recommendations contained in the Rooftop Plant Noise Assessment prepared by Heggies Pty Ltd dated 26 May 2008 and received by Council on 23 September 2008; and

(g) A photovoltaic array shall be installed on the roof to generate power for the development thereby limiting the need for an additional substation within the development.

(a) adjacent buildings, building elevations, and important interior and exterior architectural spaces and features of the building/site;

(b) a summary report of the photographic documentation; and

(c) photographic catalogue sheets, which are referenced to a site plan and floor plan, no larger than A3 paper size, and indicating the location and direction of all photos (black & white prints and slides) taken.

(a) all proposed and/or required mechanical ventilation systems;
(b) car park ventilation systems;
(c) the location of exhaust and intake vents; and
(d) the construction and fitout of commercial kitchen and food storage areas; shall be submitted and approved by Council prior to the issue of a Construction Certificate.

Agreements necessary to ensure that support services are provided for residents of the development throughout the term of the development in accordance with the Statement of Environmental Effects dated 24 July 2007. In this regard, the agreements shall provide:

- that there shall be no termination of any agreement for the supply of support services unless not less than 6 months PRIOR written notice is given by either party thereto;

- in the event that the supplier of the support services seeks to assign its rights or obligations under those agreements, the written consent of the Council to such assignment shall first be obtained. Such consent will not be withheld in the event that it is established to Council's satisfaction that the proposed assignee is a responsible and reputable individual or organisation capable of undertaking the obligations of the assignor to the residents of the development. Further, in the event that the assignee is a corporation, that its managing director shall personally guarantee performance of its obligations to residents of the development;

The preparation of the Construction Certificate plans shall be supervised and to the satisfaction of Brian Meyerson (the 'architect' Registration Number: 4907) in accordance with the requirements of State Environmental Planning Policy No. 65 - Design Quality of Residential Flats.

Loading and unloading of vehicles and delivery of goods to the land in association with the kitchen shall at all times be carried out within the site. The area set aside for car parking as shown on the approved plans shall be used for the parking of vehicles and for no other purpose.

(a) Transmission of unacceptable vibration to any place of different occupancy.

(b) A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LA10, 15min and adjusted in accordance with the Department of Environment and Climate Change (DECC) guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.

(c) A sound pressure level at any affected premises that exceeds the DECC recommended planning levels outlined in the DECC Environmental Noise Control Manual; or

(d) A sound pressure level at any affected premises that exceeds the DECC recommended maximum noise level as modified to account for the existing level of stationary noise at the receiver premises.

The development shall accommodate the provision of a composting service for residents and the scheme shall be under the responsibility of the Body Corporate or the like and provided prior to issuing of the Occupation Certificate.

B. Compliance Prior to Issue of Construction Certificate

A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006” in accordance with the following:

"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction.

Advisory Note

A development valued at $100,000 or less will be exempt from the levy.
A development valued at $100,001 - $200,000 will attract a levy of 0.5%.
A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

A bond of $10,000.00 is to be lodged with Council either as cash or by way of an unconditional bank guarantee to ensure the protection and maintenance of the Cinnamomum Camphora – Camphor Laurel tree at the front of 33 Anglesea Street in the north east corner of the property. The bond is to be lodged prior to the issue of a Construction Certificate.

A deposit of guarantee satisfactory to Council for the amount of $20,000.00 must be provided as security for the payment of the cost of any one or more of the following:

(a) making good any damage caused to any property of Council as a consequence of the doing of anything which the consent relates;

(b) completing any public works (such as roadwork, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent; and/or

(c) remediating any defects in such public work that arise within six months after the work is completed.

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note

24. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

(a) basis of design;

(b) standard to which the system is to be installed; and

(c) all relevant documentation, including all drawings such as wiring diagrams, duct layouts, hydraulic schematics etc and calculations shall be submitted for Council's records.

At the completion of the installation, certification containing the following information shall be attached to the application for an Occupation Certificate or to the Occupation Certificate:

(a) inspection, testing and commissioning details;

(b) date of inspection, testing and commissioning;

(c) the name and address of the individual who carried out the test; and

26. SERVICE AUTHORITIES

The applicant is to seek approval from Telstra and Sydney Water regarding any possible modification to the service authority’s infrastructure prior to the issue of a Construction Certificate.

A standard A-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate.

28. GEOTECHNICAL ENGINEERS REPORT

A geotechnical report, 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 excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.

A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate.

Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.

A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

C. Compliance Prior to and During Construction

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

(a) preserve and protect the building from damage; and

(b) if necessary, must underpin and support the building in an approved manner; and

If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

53. DILAPIDATION REPORT

A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external), including ancillary structures located upon the adjoining properties.

All fill imported on to the site shall be validated to ensure the imported fill is suitable for the proposed land use from a contamination perspective. Fill imported onto the site shall also be compatible with the existing soil characteristics for site drainage purposes.

Council may require details of appropriate validation of imported fill material to be submitted with any application for future development of the site. Hence all fill imported on to the site should be validated by either one or both of the following methods during remediation works:

(a) Imported fill should be accompanied by documentation from the supplier which certifies that the material is not contaminated based upon analyses of the material for the known past history of the site where the material is obtained; and/or

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;

(b) confirm that no asbestos products are present on the subject land; or

(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);

(d) describe the method of demolition;

(e) describe the precautions to be employed to minimise any dust nuisance; and

64. CONSTRUCTION HOURS

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

65. USE OF HEAVY EARTH MOVEMENT EQUIPMENT

Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays with no such work to be carried out on Saturday, Sunday or a public holiday.

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 2, 3 and 4 building:
(a) at the commencement of the building work;
(b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building;
(c) prior to covering any stormwater drainage connections; and
(d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The following additional inspections are required to be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; and
(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls).

The premises are to be ventilated in accordance with the requirements of the Building Code of Australia and relevant Australia Standards.

Prior to the issue of an Occupation Certificate and following the completion, installation, and testing of all the mechanical ventilation systems, a Mechanical Ventilation Certificate of Completion and Performance in accordance with Clause A2.2(a)(iii) of the Building Code of Australia, must be submitted to the Principal Certifying Authority.

The floor and wall surfaces of the proposed wet areas being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.

There is to be no change in existing ground level within the current dripline of the tree other than on the northern side to provide for and facilitate further root growth and development in this direction.

The proposed fence abutting the side boundary of the site (behind the front building line) is not to exceed a maximum height of 1.8m above the existing ground level of the adjoining property.

D. Compliance Prior to Occupation or DuringOccupation

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator, for details see the Sydney Water website or telephone 13 20 92 .

Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be 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.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the linen plan/occupation of the development.

88. FINAL OCCUPATION CERTIFICATE

89. waste storage

The following requirements apply to waste management:

(a) A waste management plan must be submitted to Council to include all waste removal arrangements such as the Contractor, recyclables and all other waste (collection and disposal), prior to the occupation of the premises.

(b) Provide a separate waste storage area suitably covered, bunded and drained to the sewer. The waste storage receptacles must be maintained in good order and repair at all times.

(c) Provide a suitable storage area affectively bunded for chemicals, pesticides and cleaning products.

(d) Provide a separate storage area for used and unused cooking oils suitably covered, bunded and drained to the sewer.

(e) Provide dry basket arresters to the floor wastes in the food preparation and waste storage areas.

90. garbage and recycling facilities

(a) All garbage and recycling must be inside council approved bins, with lids closed to reduce littering, stormwater pollution, odour and vermin.

(b) All organic waste, should be either treated in a composting or worm farming system, or must be stored in a Council approved bin or skip with lid closed.

(c) All waste and recycling receptacles must be put out for kerb-side collection no earlier than the previous evening.

(d) All waste and recycling must be removed from the kerb-side as soon as possible on the same day as the collection service.

(e) Standard signage on how to use the waste management system must be displayed in all communal waste storage areas. Residential signs are available from Council.

91. WARM WATER SYSTEMS

For the purposes of inhibiting or preventing the growth of micro organisms that are likely to cause Legionnaires diseases, any warm water systems shall be designed, constructed, installed and operated in accordance with the Public Health Act 1991 and Public Health (Microbial Control) Regulation 2000, AS/NZS 3666.1:1995 and AS/NZS 3666.2:1995.

92. LANDSCAPE PLAN

The site is to be landscaped and turfed in accordance with the approved landscaped plan with the landscape works completed prior to the issue of the Occupation Certificate.

93. LIGHTING

Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting

94. TACTILE NUMBER IN LIFT

95. STREET NUMBER/S

96. LIGHTS

All external area lights and car parks to multi-unit dwellings shall be on sensor switches to save energy and reduce light spill to the sky; low voltage solar powered lights to front entry footpaths are acceptable for continuously illuminated lighting.

______________________
R Hussey
Commissioner of the Court
ljr

CITATION:	Lifestyle Manor Anglesea Pty Ltd v Waverley Council [2009] NSWLEC 1156
PARTIES:	APPLICANT Lifestyle Manor Anglesea Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10011 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Section 96 Modification to restriction on roof top plant room levels, visual impact, noise, solar access
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 State Environmental Planning Policy Seniors Living 2004 State Environmental Planning Policy No. 15
DATES OF HEARING:	18 May 2009
EX TEMPORE JUDGMENT DATE:	18 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Driscoll (solicitor) SOLICITOR BCP Lawyers & Consultants RESPONDENT Mr K Webber (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers