Lufi and Associates Pty Ltd v Lane Cove Council

[2004] NSWLEC 457

Land and Environment Court

of New South Wales

CITATION:	Lufi and Associates Pty Ltd v Lane Cove Council [2004] NSWLEC 457
PARTIES:	APPLICANT LUFI AND ASSOCIATES PTY LIMITED RESPONDENT LANE COVE COUNCIL
FILE NUMBER(S):	10402 & 10178 of 2004
CORAM:	Hussey C
KEY ISSUES:	:- s96 Modification Accuracy of plans impact on neighbours privacy
LEGISLATION CITED:	Environmental Planning and Assessment Regulation 1994 Lane Cove LEP
CASES CITED:
DATES OF HEARING:	28/05/04, 13/07/04 and 17/08/04
EX TEMPORE JUDGMENT DATE :	08/17/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor of Storey & Gough RESPONDENT Mr S. Griffiths, solicitor of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hussey

17 August 2004

10402 and 10178 of 2004 Lufi and Associates Pty Ltd –v- Lane Cove Council

JUDGMENT

1 These proceedings involve the following two appeals related to building alterations works at 6 Lower Brooks Street, Linley Point:

-Appeal 10178/2004; against Council's refusal of a s 96 Modification to steps leading to the foreshore area,

-Appeal 10402/2004 ; against Council's refusal of a s 96 Modification for alterations to the eastern section (waterfront) of the dwelling.


2 As the s. 96 Modification applications deal with the same original DA 297/02, the parties agreed to these modification applications being heard concurrently.

3 Following notification of the proposals a number of objections were received, including those from the neighbouring properties:

• Mr and Mrs Seckold from No 12 A Brook Street, who were concerned about discrepancies in the plans, eastward encroachment of building and consequential loss of privacy,
  
• Mrs Williams from No 6 Lower Brooks Street, who owns the neighbouring property to the north, which is a listed heritage item. Her main concern was loss of privacy from overlooking from the eastern balcony.

4 Following the OSH, further conferencing was undertaken by the respective planning experts, resulting in amended plans being submitted to address to some extent the neighbours concerns. The joint planning report became Exhibit 1 and addressed the outstanding issues in following terms:

1. Appearance from water to reduce visual bulk.
Both experts considered several options and agree that the design shown on the above amended plans is the design most appropriate to minimise the impact on the foreshore and with a lower ridgeline will provide greater outlook from the proposed dwelling to the south.
2. Steps to the foreshore.
It is now proposed to cover the steps with natural sandstone. Both experts agree this will ensure that the steps will now have the appearance of other steps on the foreshore particularly when weathered. This is noted on the amended plans.


3. Landscaping.
A landscape plan for the foreshore area has been provided. The proposed landscaping is consistent with Councils landscape policy and is considered acceptable by both experts. The second landscape plan is to assist in providing privacy future dwelling at No 12 A Brooks Street.
4. Privacy to No 12 A Brooks Street.
Glazing on the southern and southeastern side of the ground floor level is to be frosted glass. The double sliding door south side on the lower level is now proposed to be frosted. The opening part of the door will be that half that is on the western side of the door. On the eastern elevation at the ground floor level it is proposed to add film to the glass to a high of 2 m above the stairs. Adjacent to the southern boundary to the east of the sliding door propose to add landscaping. Each of these are shown on the amended plans.
5. Privacy to No 4 Lower Brooks Street.
It was agreed that provided that the privacy screen proposed for the northern side the ground floor deck was extended to a length of 2 m from the wall of the lounge room to a height of 1.8 m above the balcony floor, the privacy concerns on the owner of the Heritage dwelling to the north would be resolved.
6. Plan amendments.
The plans have been amended to show the correct position of steps adjacent to the southern boundary and ridge height above the balcony floor level is consistently 800 mm.
5 Having reviewed the evidence before the Court, I am now satisfied that these amended plans demonstrate reasonable compliance with the relevant controls and satisfactorily address the neighbours concerns. In this regard, I note Mr Boston's (the consulting town planner on behalf of Mr and Mrs Seckold) concession that the amendments including the frosted glass now result in an acceptable outcome.
6 In summary then, I am satisfied that the s 96 Modifications relate the same application. Also that the merit considerations have been adequately addressed by the final amendments, so was to allow approval in accordance with the agreed conditions, which also reasonably address the public interest considerations. In this regard to rely on the agreement from the planning experts, that the s 96 Modification can be approved.

Court Orders

1. The appeal in matter No. 10178 /2004 is allowed.
2. The appeal in matter No. 10402 /2004 is allowed.
3. The s 96 Modification applications regarding alterations to the waterfront steps and eastern building elements at 6 Lower Brooks Street, Linley Point is approved in accordance with the conditions in Annexure "A".
4. The exhibits may return except for exhibits 1, 2, D, and E.
________________
R Hussey.
Commissioner of the Court
ljr

Appeal No: 10402 and 10178 of 2002

Annexure “A”

Conditions of Consent

1. (20) That the development be substantially in accordance with drawing numbers DA-00A, DA-01C, DA-02B, DA-03A, DA-04A dated August 2002 by Lufi and Associates Pty Ltd and in accordance with drawings DA-01E, DA-01C, DA-02E, DA-03E, DA-04E all numbered D297/01B and dated August 2004 and the landscape plans of Stuart Pittendrigh of 15 June 2004 and 9 August 2004.

1a. The planter boxes on the ground floor and first floor terraces are to be constructed to a height sufficient to accommodate a soil depth and drainage material of at least 800mm. The planter boxes shall also be connected to an irrigation system. The elevations being amended to reflect the planter boxes for both levels and a detail and cross section of a typical planter box being submitted to Council’s satisfaction PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE.

2. No works are to commence at the site prior to a Part 3A Permit under the Rivers and Foreshores Improvement Act 1948 being obtained from the Waterways Authority.

The proposed works are to be carried out so that:
(a) no materials are eroded, or likely to be eroded, are deposited, or likely to be deposited, on the bed or shore or into the waters of Burns Bay; and
(b) no materials are likely to be carried by natural forces to the bed, shore or waters of Burns Bay.
(c) In the event that any material does enter Burns Bay it is to be removed immediately without causing any further harm to the environment.
(d) To achieve the requirements of the condition above, a plan to manage erosion, sediment and other pollutants during the works is to be prepared by a suitably experienced person(s) and submitted to the Waterways Authority prior to the issue of a Part 3A Permit. Consideration should be given to implementing a floating boom and silt curtain during construction.
(e) The plan shall address appropriate methods for the on-site control of runoff, sediment and other pollutants and be implemented during, and post, construction. Methods shall be in accordance with the relevant specifications and standards contained in the manual Managing Urban Stormwater – Soils & Construction issued by the NSW Department of Housing in 1998 and any other relevant Council requirements.
(f) The erosion, sediment and pollution controls shall be installed and stabilised before commencement of site works. This does not include the works associated with the construction of the appropriate controls.
(g) The proposed system for erosion, sediment and pollution control is to be effectively maintained at or above design capacity for the duration of the works and until such time as all ground disturbed by the works has been stabilised and rehabilitated so that it no longer acts as a source of sediment.
(h) Any material that is to be stockpiled on site is to be stabilised to prevent erosion or dispersal of the material.
(i) All native tree species present on the site are to be retained and protected for the duration of the works. In particular, earthworks and filling activities, as well as stockpiling of materials are to be undertaken in a manner that protects the root zone of trees. In addition, pruning and/or lopping of limbs is not to be undertaken on any trees proposed to be retained at the site.
(j) The inter-tidal area is mapped as ‘mixed rocky inter-tidal and mudflat’ and classified as high conservation value in the Sydney Harbour and Parramatta River DCP. This area is to be fully protected for the duration of the works. This includes preventing the storage of materials, equipment, or waste receptacles, in the inter-tidal area. Where machinery is to be used in the inter-tidal area, information demonstrating the protection of these values is to be supplied to the Waterways Authority prior to Part 3A Permit being issued.
(k) In the event that a barge would be used in the construction process, satisfactory information to demonstrate protection of the inter-tidal area and seawall is to be provided to the Waterways Authority prior to a Part 3A Permit being issued.
(l) The seawall is to be fully protected for the duration of the works.
Please note that this is not the Part 3A Permit. The applicant is required to make a separate application for the Part 3A Permit to the Waterways Authority if development consent is issued by Council and prior to any physical works commencing at the site.

3. (1) The submission of a Construction Certificate and its issue by Council or Private Certifier PRIOR TO CONSTRUCTION WORK commencing

4. (2) All building works are required to be carried out in accordance with the provisions of the Building Code of Australia.

5. (12) Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy Council that they have complied with the applicable requirements of Part 6 prior to commencement of work. THE ABOVE CONDITION DOES NOT APPLY TO COMMERCIAL/INDUSTRIAL CONSTRUCTION, OWNER BUILDER WORKS OR CONSTRUCTION LESS THAN $12000.

6. (25) The retention on site, without damage, of all existing trees, excepting those shown in the approved plan, to be removed. The consent of Council to be obtained for the removal of any trees.

7. (35) All demolition, building construction work, including earthworks, deliveries of building materials to and from the site to be restricted to the following hours:

Monday to Friday (inclusive) 7.00am to 5.30pm
Saturday 7.00am to 4.00pm
No work to be carried out on Sundays or any public holidays.

8. (36) Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by water to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.

9. (37) The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.

10. (46) Continuous balustrading is to be provided to all balconies, decks, terraces, landings and the like where more than 1 metre above the ground or floor surface beneath. Such balustrading is to have a minimum height of 1 metre. Openings in the balustrade must not allow a 125mm sphere to pass through and where the floor is more than 4 metres above the ground or floor surface below, any horizontal or near horizontal elements within the balustrade between 150mm and 760mm above the floor must not facilitate climbing.

11. (47) Continuous balustrading is to be provided to all stairways and ramps where more than 1 metre or 5 risers above the ground or floor surface beneath.

The balustrade is to have a height of not less than 865mm above the nosings of the stair treads or the floor level of the ramp or landing and any opening does not permit a 125mm sphere to pass through it and for stairs, the sphere is tested above the nosings.

12. (48) Depositing or storage of builder's materials on the footpath or roadways within the Municipality without first obtaining approval of Council is PROHIBITED.

Separate approval must be obtained from Council's Works and Urban Services Department PRIOR TO THE PLACEMENT of any building waste container ("Skip") in a public place.

13. (49) Under the Home Building Regulation 1997, a signboard must be erected on the site in a prominent position indicating in clear and legible characters the following information:

• The name of the Licensee shown on the licence;
• The words "Licensed Contractor” or words to that effect;
• The number of the Licence held by the Licensee;
• Such signboard not to exceed 900 mm x 600 mm.

14. (50) The cleaning out of ready-mix concrete trucks, wheelbarrows and the like into Council's gutter is PROHIBITED.

15. (51) A Tree Preservation Order applies in the Municipality of Lane Cove. The Order prohibits the cutting or removal of any tree except with the consent of Council and the penalty for contravention of this Order is up to Twenty Thousand Dollars ($20,000.00). The co-operation of all residents is sought in the preservation of the bushland character of the Municipality. All enquiries concerning the Tree Preservation Order must be made at the Council Chambers, Lane Cove.

16. (56) Where Lane Cove Council is appointed as the Principal Certifying Authority, it will be necessary to book an inspection for each of the following stages during the construction process. Forty eight (48) hours notice must be given prior to the inspection being required:-

b) All reinforcement prior to filling with concrete.
d) Framework including roof and floor members when completed and prior to covering.

e) Installation of steel beams and columns prior to covering

k) Completion.

17. (57) Structural Engineer's details being submitted to Council and approved PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE for the following:-

d) reinforced concrete work;
e) structural steelwork;
f) upper level floor framing;

18. (58) Structural Engineer's Certificate being submitted certifying that existing building is capable of carrying the additional loads. Such Certificate being submitted BEFORE ISSUE OF CONSTRUCTION CERTIFICATE.

19. (61) All timbers complying with Timber Framing Code AS 1684-79.

20. (62) All glazing is to comply with the requirements of AS 1288.

21. (73) The site being cleared of all debris and left in a clean and tidy condition at the completion of all works.

22. (76) All machinery used on the site during demolition shall have a noise emission no greater than 75dB(A) when measured at a radius of 7.0 metres from the specified item.

23. (77) All spillage deposited on the footpaths or roadways to be removed at the completion of each days work.

24. (122) All rooms being provided with light and ventilation in accordance with the requirements of the Building Code of Australia.

25. (137) Lane Cove Council charges a fee of $25 for the registration of any Part 4A Certificates (compliance, construction, occupation or subdivision certificates) issued by an accredited certifier under the Environmental Planning and Assessment Act.

26. (214a) Council requires the submission of a sediment and erosion control plan for the site. The sediment and erosion control plan shall be in accordance with Council’s standards and specifications for stormwater drainage and the plan shall be approved PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE. Implementation of the scheme shall be completed prior to the commencement of work on the site. The sediment and erosion control measures shall be maintained until the completion of the development.

27. (221) The applicant shall lodge with Council a $600 cash bond or bank guarantee to cover damage to Council's roads, footpaths, kerb and gutter, drainage or other assets. Lodgement of this bond is required PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE.

28. (258) Stormwater drainage from the proposed addition/extension shall be disposed of to the existing drainage system. All work shall be carried out in accordance with Council’s standards and specifications for stormwater drainage. Work shall be completed PRIOR TO THE ISSUE OF THE OCCUPATION CERTIFICATE.

29. The site shall be landscaped in accordance with landscaped plans prepared by Stuart Pittendrigh dated 15 June and 9 August 2004 and maintained in accordance with the plans.

The applicant shall prior to the issue of a construction certificate provide to Council for its approval a landscape plan prepared by Stuart Pittendrigh in accordance with the concept plans dated 15 June 2004 and 9 August 2004.

________________

R Hussey.

Commissioner of the Court

ljr