Markev Investments Pty Ltd v Sutherland Shire Council - [2004] NSWLEC 88

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Markev Investments Pty Ltd v Sutherland Shire Council [2004] NSWLEC 88 revised - 3/06/2004

PARTIES:
APPLICANT
Markev Investments Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10139 of 2003

CORAM: Hussey C

KEY ISSUES: Development Application :- Mixed use residential/parking development - appropriatness of development - design elements - orderly development
Principles - Mixed use residential amentiy
- Orderly development

LEGISLATION CITED: State Environmental Planning Policy No. 65
Sutherland Shire LEP 2000

CASES CITED:

DATES OF HEARING: 04-06/08/2003, 17/11/2003 and 20/02/2004

DATE OF JUDGMENT: 03/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister
RESPONDENT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10139 of 2003

Hussey C

19 March 2004

Markev Investments Pty Limited

Applicant

v

Sutherland Shire Council

Respondent

Background

1 . This appeal is against council's refusal of a development application for alterations to an existing hotel development and construction of an associated residential flat building (RFB) in the Engadine town centre. The Engadine Hotel has been in existence for many years and has progressively acquired additional surrounding landholdings. In 1994, consent was granted for the refurbishment, additions and carparking upgrade for the hotel.

2 . The land to which this consent was granted, referred to Lots 1-6, DP 232490 (No. 42/50) Station Street - as shown on Plan 1 (Attachment 1).

3 . Part of the consent required the provision of carparking arrangements on Lot 6, which is bisected, from the hotel by the laneway

whether the development is permissible in terms of the LEP , and the meaning of "residential flats only in building subject to another permitted use".

5 . This was determined in the affirmative by His Honour Mr Justice Bignold that the proposed development is for a permissible purpose of development within the General Business Zone No. 3(A) under the LEP namely "residential flats only in buildings subject to another permitted use".

The site

6 . The site is described as Lots 1 – 4, 6 in DP 232490. It has a total area of 5561.1 m2.

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· the main hotel building located on Lot 1;
· liquor shop and drive through facility located on Lots 2 and 3;
· shops fronting onto Preston Avenue, and carparking and access associated with the liquor shop on Lot 4; and
· ground level carparking and access provided for the hotel, on Lot 6.

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The proposal
9. The initial proposal comprised:

10 . Following consideration of the various issues raised by council and the objections from neighbours, amended plans were accepted into evidence, and the matter was adjourned to enable readvertising and consideration of the amendments by council.

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· 5 x 3 bedroom units;
· 34 x 2 bedroom units;
· 2 x 2 bedroom plus study units; and
· 2 x 1 bedroom units.

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Planning controls

Sutherland Shire Local Environmental Plan 2000 (SSLEP).
13. The site is zoned General Business 3 (a) under this LEP. As the proposed residential flats are located in a building, which is to contain carparking associated with hotel, it is permissible with development consent.
14. Clauses 43 to 44 of the LEP provide that where no other provisions are made within a development control plan, the following controls apply:

State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65).

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Development Control Plans
16. The following development control plans apply:

Development Control Plan - Engadine Centre . This sets the direction for the future of the Engadine Centre and contains two tiers, which are an overall strategy for the centre and detailed development controls for each precinct. The land is located within Precinct 6.

Development Control Plan: Carparking. Edition 3 .

Development Control Plan: Landscape. Edition 3.

Draft Local Environmental Plan 2003.

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development that includes residential development and another permissible use.

The evidence
18. Detailed evidence on behalf of council was presented by:

· Mr G. Hand, Manager environmental planning and his reports are Exhibits 8, 20, 24.
· Mr M. Lucchitti, Council architect/development assessment officer and his reports are Exhibits 9, 22, 25.
· Mr P. Anderson, Development assessment officer - engineering and his report are Exhibits 14,21.
· Mr G. Cowling, Neighbour, unit 12, 9 Preston Avenue.
· Ms J. Willoughby, Neighbour 7 Preston Avenue.

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· Mr P. Grech, Consulting town planner at his reports are Exhibits B, L, S, T.
· Mr B. Masson, Traffic consultant at his report is Exhibit C.
· Mr P. English, Environmental consultant, and his report is Exhibit D.
· Mr S. Pittenrigh, Consulting landscape architect and his report is Exhibit H.
· Mr G. Tench, Project architect at his reports are Exhibits E, P, U.
· Mr S. Payne, Real estate valuer, and his report are Exhibits F, Q.

Discussion of evidence

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· The appropriateness of the development in terms of the prevailing planning controls and its locational context,

· Whether the proposal achieves satisfactory compliance with the relevant design quality principles in SEPP 65, including the bulk and scale of the building,

· Adequacy of common open space,

· Suitability of carparking/arrangements,

· Whether the proposal demonstrates orderly development of land due to the isolation of No. 7 Preston Avenue.

21 . Consideration of the evidence on this first matter highlights an obvious and fundamental difference in approach between the planners in the selection and application of the appropriate controls for this form of development on this site.

22 . This difference arises because the land is zoned General Business 3 (a) under SSLEP, which allows residential development on this site, when undertaken in conjunction with another permitted use. In this case the permitted use is the commercial carpark associated with the hotel, which is proposed to be located in the basement levels of the new building. It is not proposed to incorporate any commercial development at ground level.

23 . However, there are no specific controls for the residential component of buildings within the Business Zones, which indicate how any different type of uses are to be integrated, or the level and type of amenity envisaged as appropriate for this form of development. Presumably the amenity of the residential units will be different to that achieved in the other medium density residential zones, considering the servicing requirements for the business zones, which inevitably results in a busier, noisier and generally less landscaped environment. This being offset to some extent, by the convenience and proximity to other services, within the business area.

24 . In response to this planning void, the respondents experts, particularly Mr Lucchitti relies on the application of the design controls in the DCP for residential flat buildings in the 2(c) Residential Zones and 9(a) Mixed Residential/Business Zones. However, this approach creates some difficulties because the allowable form of development is different to that of commercial buildings. In particular there are more restrictive front and side setback requirements for residential flat buildings, which are not required for the commercial buildings in the business zones and this affects the resultant amenity.

25 . Against this, Mr Grech says that if the planning instruments had intended to apply this DCP to residential flat buildings in the 3(a) Business Zone, it would be so stated. In the absence of such statement, I accept Mr Grech’s position that in accordance with cl 1, this DCP is not directly applicable in this case. Accordingly I consider that Mr Lucchittis evidence in this regard should be discounted, as it is significantly based on this DCP.

26 . It then seems to me that the determination of the ultimate form of this permissible development is subject to the LEP provisions and the associated design principles in SEPP 65 , which the parties have addressed, in response to the original issues.

27 . There is further uncertainty in the planning controls concerning the adjacent residential property No. 7, because SSLEP zones it as Residential 2 (c). But the DCP - Engadine Centre shows the site as "proposed parking". The evidence however indicates there are no plans to implement this. Therefore it seems to me that this D. C. P. should also be given diminished weight in this case.

28 . With reference to the draft LEP’s, I note that at the commencement of these proceedings, draft LEP 2003 was tendered as a matter for consideration. Then after the matter was adjourned, and on resumption, Mr Grech refers to the amended draft LEP 2004, which he says states that the existing Engadine Centre DCP will remain in force under the provisions of LEP 2004, instead of Masterplans or Area Specific DCP’s. Given the current inconsistency of this DCP in respect of the subject and neighbouring properties, and the absence of any substantive evidence on the imminence and certainty of this instrument, I consider it should only be given limited weight. In any case, the subject site to be zoned "Urban Centre", which still allows the proposed form of development with consent. Such development may have a maximum height of 3 storeys and an FSR of 2:1. Considering the proposals general compliance with this, I do not consider it is antipathetic to the objectives of the draft LEP.

29 . Consequently, I consider the prevailing controls are SSLEP, in which the following objective is relevant:

(c) Viable business centres supported by appropriate forms of residential development and

also the design quality principles in SEPP 65, for residential flat buildings.

30 . The first design principle in SEPP 65 relates to the context of the development. The site is located adjacent to the built-up business area, containing a variety of commercial buildings. Both the existing and proposed zoning allow a commercial and/or part residential building form on the site. This site then is in proximity to the medium density residential area along Preston Avenue in the adjoining residential zone, which comprises mainly established 2 and 3 storey residential units, except for No. 7.

31 . The relatively prominent location of this site is visually important because it forms the interface between the residential and business zones and is the end site for any residential flats in Preston Avenue. Insofar as this proposal does not include any commercial component, Mr Grech says that this is based on the results of the Hirst report "Sutherland Shire Retail and Commercial Analysis". This study concluded that while Engadine Centre has approximately 26,635 m2 of retail floor space in existence, only 16,121 m2 is considered supportable. Furthermore the report comments that while the Engadine Centre is a strip shopping centre, it appears to function as a reasonably viable, vibrant commercial area.

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the overall development provides land uses which vary across the site so as to provide for compatibility with adjoining land uses. The hotel development and associated retail uses are located on the northern end of the site to be consistent with the adjoining retail uses in the Engadine shopping centre core….

the proposed development achieves an integrated approach to providing a transition between the retail/commercial call and the surrounding residential flat development…

33 . On the basis that there appears little demand for further commercial space on the site, which I consider it is a secondary location when compared to the prime shopping strip in Station St, I am satisfied that this combined parking/residential complex can fit into this area context, by providing a reasonable transition between the commercial buildings and predominant residential flat buildings along Preston Avenue, with an acceptable streetscape impact, as stated by Mr Grech, on whose evidence I rely.

34 . The next design principle concerns the scale and density of the building. In this regard I note that the floor area of the amended building has been reduced from the original by some 242 m2. This results in the building having an FSR of 1.52:1, which is less than the allowable 2:1. Also the height is within the allowable 3 storey height limit. I am therefore satisfied that the building envelope is consistent with the current controls and of commensurate scale and density with the existing residential flat buildings to the south.

35 . Notwithstanding this, I note that both Mr hand and Mr Luchhiti are dissatisfied with the overall scale, built- form and aesthetics of the building. Mr Luchhiti considers it does not contribute positively to the streetscape due to the large flat walls, lack of articulation and colours which are not characteristic of nearby residential buildings.

36 . But in this case the amended building design incorporates staggered setbacks along Preston Avenue, varying from 1.5 m at the corner of Geebung Lane, to 4.5 m midway across the lot, to approximately 7.5 m adjacent to No. 7. Then it has a variable side setbacks to No. 7 of 1.65 m - 2.45 m up to 2 storey height, and 4 m up to the 3 storey height. Furthermore the building bulk and scale has been improved by reducing the floor to ceiling height by 510 mm and incorporation of a flat roof to minimise overall building height. Also, open balconies and planters on the corner units are proposed to improve the streetscape impact. It seems to me that the principal elevations with streetscape impact, do have reasonable articulation and presentation, so as to merit approval.

37 . The consideration of this application also involves determination of a SEPP 1 Objection to the amount of residential floor space in any mixed use building. Clause 45 of SSLEP prescribes a development standard for a maximum of 50% of the total gross floor area of the development. In this case, the residential floor space is in the order of 51.8 %.

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to permit residential development within the Engadine Centre, but not to an extent which would compromise viability of the retail, business and professional activities within the centre

39 . The justification in the SEPP 1 Objection, for the minor variation is supported by the retail study, which indicates a significant oversupply of retail and commercial floor space in the centre. Also, the residential component provides for appropriate form of residential development, in proximity to the centre and transport services. Furthermore the site is located on the periphery of the commercial centre, adjacent to existing residential development and its development for residential purposes will not compromise the coherence or continuity of the core and extent of the existing business centre.

40 . Based on the evidence before the Court, I am satisfied that the underlying purpose is achieved and that the SEPP 1 Objection is well founded and should be allowed. In this regard, I note that there is no challenge from council.

41 . In summary then, I consider that this building design is of a modern style that has been designed by an architect, which results in a reasonable and acceptable transition between the commercial buildings and residential flat buildings and accordingly is appropriate on the business site, even though it is different from the older style residential flat buildings along Preston Avenue. I am also satisfied that this building demonstrates reasonable compliance with the relevant good building design principles. Although I acknowledge that building design inevitably results in a subjective assessment.

42 . An associated issue concerns the landscaping design principle. In this regard, I accept that the amended proposal provides for increased front and side setbacks, which enables provision of landscaping to soften and screen the buildings. As the only expert landscaping evidence was presented by Mr Pittenrigh, I rely on his opinion that there is satisfactory area for deep soil landscaping and that appropriate species can be provided to suit the local microclimate and enhance the development, whilst also providing reasonable privacy to adjoining properties. Accordingly I accept that the landscape concept plan is satisfactory to provide a transition between this stepped, setback building to the adjoining residential zone and that conditions of consent can be imposed, which require a detailed landscaping plan to be submitted to and approved by council prior to Construction Certificate stage.

43 . The manner in which the development addresses future parkland to the west is another issue addressed by the planners. However there is some uncertainty with this due to the lack of finality on the ultimate land acquisitions for the park. Notwithstanding this, the applicant seeks to rationalise this to some extent by offering to dedicate as park, a strip of land approximately 6 m wide adjacent to the reserve. This seems to be a reasonable offer to enable the park to be marginally extended, which is generally in accordance with the future planning in the neighbourhood.

44 . Mr Hand nevertheless considers that the 3 m setback at the closest point of the park to the building is still inadequate. This is based on the residential DCP guidelines requiring a 4 m boundary setback. However taking into account the nature of this park, with its mature vegetation, I do not consider that this relatively small non-compliance will unduly affect amenity of these units, which are situated in the business zone.

45 . Insofar as some aspects of the access and parking issue initially remained outstanding, I accept that further conferencing between Mr Anderson and Mr Masson satisfactorily resolved the concerns about traffic and car parking spaces and also the public lane width, which involved it is widening and construction to an agreed cross-section. Conditions of consent can adequately cover this.

46 . Notwithstanding this, I note the concern expressed by some neighbours that the hotel patrons may not find the underground car park convenient and also its use may conflict with that of the residential unit dwellers. In my assessment, these concerns should be satisfactorily addressed by compliance with proposed operational conditions (Draft conditions 67, 68), which require provision of a plan of management for the car parking areas. Although I consider this should be extended so that the management plan incorporates a periodic review mechanism (i.e. yearly) to ensure the operational efficiency of the car parking arrangements.

47 . Another outstanding issue concerns the impacts on the adjoining dwelling at No. 7 . These impacts include increased shadowing, loss of privacy/outlook and difficulty in achieving future orderly development of property. Undoubtedly approval of the proposed, more intensive development will change the amenity of the residents in this dwelling , because the land is currently vacant and used for ground level parking.

48 . However, I consider it appropriate to take into account the planning context, where the controls allow for a 3 storey commercial building with zero setbacks along the common boundary. I also consider it of some relevance that the Engadine Centre controls do not contain specific shadowing controls. Nevertheless the proposal endeavours to minimise impacts on this property by providing a minimal 1.65m setback, together with the building height being stepped from 2 to 3 storeys. Consequently the north facing windows of the dwelling still receive some sunlight in mid-winter, as does part of the rear yard, which is unshaded between 10 am – 2pm. Accordingly I rely on Mr Grech’s opinion that this is acceptable in the planning context, which allows significant redevelopment opportunities.

49 . In addition to these impacts, I have also considered the neighbours objection regarding orderly development of adjoining properties. However in this case, the matter was adjourned to allow the neighbours to negotiate possible land dealings and development options. Even though that was apparently not achieved, I am satisfied that proposal does not unduly restrict future development of No. 7, due to the conceptual development opportunities suggested for it. Also, the applicant offers to make provision for connection of the basement carpark at the common boundary, so as to facilitate future development.

50 . In summary, it seems to me that No. 7 is the last remaining single dwelling in this immediate neighbourhood and it has likely redevelopment potential, at an increased density, in accordance with the current and future controls. As the subject proposal complies with the controls and the amenity impacts on No. 7 are not excessive, I do not consider approval of this application is inconsistent with orderly development considerations of these adjoining properties.

51 . Other objections were raised by neighbours in the residential units at 9 Preston Avenue. In particular they are concerned about loss of outlook and views. However from my observations at the site inspection and taking into account the allowable building envelope on the subject site, I am satisfied that the amended proposal results in a reasonable balance between competing building and view opportunities.

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Conclusions
53. Having considered the evidence, the submissions and undertaken a view, I am satisfied that the amended proposal now merits conditional consent.
54. This mixed use residential/parking development complies with the current controls and is a form of development that is consistent with the draft LEP controls, even though its imminence and certainty is not established. Furthermore, I consider it comfortably complies with the bulk and scale of commercial buildings, which could be allowed on the site.
55. However, I acknowledge that there is some difficulty in ascertaining the optimal building form, due to the lack of specific controls for residential building components undertaken in association with part commercial uses, which are situated in the core business zone.
56. One of the main principles arising concerns the appropriate level of residential amenity in this business zone. It is likely that there will be a higher level of noise generated due to servicing in the early hours and therefore consideration of noise control is required. Also questions of appropriate building separations, open space/recreational areas and solar access in this zone arise.
57. In the absence of these specific controls, I have considered the respective experts opinions and reference to alternative specifications such as AMCORD and in the ultimate I rely on the applicant's evidence that this proposal demonstrates reasonable compliance with the good design guidelines in SEPP 65.
58. Furthermore, I do not consider there is any compelling evidence presented, which indicates that the new residents will experience an unsatisfactory level of amenity, although I acknowledge that in some respects it is likely to be reduced compared to that in a predominant residential zone. However, I consider that further general planning investigation is warranted to establish appropriate levels of amenity for residential developments in business zones. This may include guidelines for unit separation, privacy, private open space and acoustic amenity.
59. Another principle concerns orderly development of land. In this case the applicant proposes a substantial mixed residential/parking development, which is generally in accordance with the current controls, but this represents a significant change to the existing area context. However the neighbouring property, No. 7 contains a family home, which the owners do not wish to develop at this stage.
60. Under the circumstances, I have considered the impacts of the new building in terms of its setbacks, bulk and restriction on outlook and shadowing. From this I am satisfied that the loss of amenity to No 7 is not excessive as the proposed boundary landscaping reduces the privacy loss and the house still retains reasonable areas of sunlight access at midwinter. Another aspect of this concern is the future redevelopment opportunities for No. 7. But the applicant has indicated how No. 7 may be developed in the future at increased residential density and indicated a willingness to provide common access between the properties. This arrangement seems reasonable at this time, in ultimately achieving orderly development of these properties, under different timeframes. Therefore I do not consider it reasonable in this case, taking into consideration the opportunities for negotiation, to prevent permissible development, until adjoining owners agree on land dealings.
61. Insofar as there is some criticism of the design by council witnesses, nevertheless the building is designed by an architect in a modern style, which I consider provides a reasonable transition between the commercial buildings and the older style residential flat buildings. Notwithstanding this, I consider that further detailed assessment should be given to the colours and materials by Council, at the Construction Certificate stage.
Court orders

R Hussey.

Conditions of development consent

Annexure A

Markev Investments Pty Ltd .. v.. Sutherland Shire Council

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. Approved Plans

The development shall be implemented substantially in accordance with the details and specifications set out on drawings-DA01F, DA02F, DA03F, DA04, DA05F, DA06F, DA07F, DA08F, DA09F, DA011F and L01B by Trott Tench & Associates; drawing 1/1, Rev. A dated December, 2002 by LMW Design Group P/L, drawing 1/1, Rev. B dated December, 2002 by LMW Design Group P/L, and drawings 1/4, 2/4 and 3/4 dated December 2002 and 4/4(Rev.C) dated December, 2003 by LMW Design Group P/L and any details on the application form and supporting information relating to the application except as amended by the conditions specified and imposed hereunder.

The building design shall incorporate a minimum sound transmission class of 40 dB(A) into the windows and sliding doors that face towards the hotel to ensure the noise criteria of the Liquor Administration Board are met with respect to the operations of the adjacent hotel. Certification to this effect shall be provided by an Accredited Certifier and shall accompany the Construction Certificate. To give effect to this requirement the relevant dwelling units shall be provided with mechanical ventilation.

PRESCRIBED CONDITIONS

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority (PCA) for the development to which the work relates:

(a) in the case of work to be done by a licensee under that Act:

(i) has been informed in writing of the licensee’s name and contractor license number, and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

(b) in the case of work to be done by any other person:

(i) has been informed in writing of the person’s name and owner-builder permit number, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of “owner-builder work” in section 29 of that Act,

2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

Builders and Insurance details required under part B above shall be provided to Council with the Notice of Commencement.

BONDS AND CONTRIBUTIONS

The following security bonds and contributions have been levied in relation to the proposed development.

6. Council Property & Environment Damage Security – Construction

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $10,000 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. This shall be retained by Council for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.)

It is the applicant’s responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall accompany the Construction Certificate.

7. Construction Performance Security

Before the issue of a Construction Certificate the applicant shall provide security to the value of $10,000 for the payment of the cost of remedying any defects in any public work that may arise within 6 months after issue of an Occupation Certificate as a consequence of the implementation of the consent. The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council.

Council may carry out any works necessary to correct the defects and the cost of these works will be deducted from the security.

A request for release of the security may be made to Council 6 months after the occupation certificate has been issued or the completion of all works in the case of a Class 1 and 10 building.

8. Public Risk Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Risk Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

SECTION 94 CONTRIBUTIONS

The following contributions have been levied in relation to the proposed development pursuant to Section 94 of the Environmental Planning and Assessment Act 1979.

9. Section 94 - Acquisition and/or Augmentation of Public Open Space

A monetary contribution of $439,849 shall be paid to Sutherland Shire Council for the cost of acquiring and augmenting public open space in lieu of its physical provision. The contribution is for the following:

Local reserve land acquisition $375,421

District reserve embellishment $10,432

Local reserve embellishment $53,996

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan – Open Space, after identifying the likelihood that this development will require or increase the demand for local and district open space within the area. It has been calculated on the basis of 89 new bedrooms with a concession of 1 existing allotment.

The contribution will be indexed on 1 July in each year in accordance with indexing methods outlined in the Plan, with amended rates being available from Council.

Payment is required on or before the times stated in clause 11 of the Contributions Plan unless the Council accepts a deferred or periodic payment in accordance with clause 13 of the Contributions Plan.

The Contributions Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, Eton Street, Sutherland during office hours.

A monetary contribution of $38,720.48 shall be made for the cost of providing community facilities.

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Sutherland Shire Council Contributions Plan – Community Facilities in the Sutherland Shire (adopted by Council on 13 October, 2003), after identifying the likelihood that this development will require or increase the demand for community facilities within the area. It has been calculated on the basis of 43 attached dwellings, with a concession for 1 existing allotment.

The contribution will be indexed on 1 July in each year in accordance with the indexing methods outlined in the Plan, with amended rates being available from Council. Payment is required on or before the times stated in clause 4.2.1 of the Contributions Plan unless the Council accepts a deferred or periodic payment in accordance with clause 4.2.2 of the Contributions Plan. The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, Eton Street, Sutherland during office hours.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

11. Landscaping

A detailed landscape plan shall be prepared to ensure that the landscaping is appropriate to the development and provides reasonable amenity for neighbouring properties. The plan which shall accord with the landscape concept plan, Council’s Landscape Development Control Plan and the relevant conditions of this development consent, shall accompany the Construction Certificate. Certification from an Accredited Certifier to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the construction certificate.

12. The tree to be planted in the common open space area shall be a species that is unlikely to achieve a mature height of more than 5.5 metres. The trees shown on the Landscape Concept Plan L01B, adjacent to the sotheastern corner of the site (Jacaranda) and the eastern boundary adjoining the rear of No.7 Preston Avenue (Grey Gum) shall be replaced with species unlikely to achieve a mature height of more than 5.5 metres.

13. Excavation in the vicinity of the tree on the common boundary with No. 7 Preston Avenue shall be carried out using hand equipment rather than mechanical means in order to reduce any adverse impacts on the tree and its survival.

14. For security purposes and to minimise the impact on nearby residential properties the common open space area shall be lit with a subdued garden lighting system.

Fencing along the western and part northern boundary of No. 7 Preston avenue shall be 1.8 metre high masonry construction with a finish complementary to the new building and to the finish on the buildings on adjoining allotments. This fencing shall also be continued along the common boundary with 9/11 Preston Avenue to the point where it meets the palisade fencing.

The lower walls along the lane and Preston Avenue shall be painted with anti-graffiti paint.

The basement egress doors from stairs 1, 2 and 5 shall be provided with lighting to improve security.

. Privacy Screen Material

The following public works shall be designed in accordance with the requirements of Council’s issued design brief and constructed to Council’s adopted “Specification for Civil Works Associated with Subdivisions and Developments”:

(l) Construction of a driveway entrance to the building to cross the footpath at levels issued by the Council.

(m) Erosion and sediment controls.

The survey and design for the road frontage works may be either undertaken by Council’s Engineering Division or by a NPER civil engineer certifying that the design has been carried out in accordance with all appropriate and relevant standards.

Approval of the design plans as well as permission under the Roads Act, 1993 shall be obtained from Council prior to the issue of a Construction Certificate.

1. A Construction and Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the objectives of Council’s Environmental Site Management Development Control Plan and shall consider the following:

(i) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

(ii) The proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,

(iii) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,

(iv) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

(v) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.
(vi) The requirements of any site specific Development Control Plan that may affect this development site.

2. The footpath and road reserve shall not be used for construction purposes.

3. An application for a construction zone, a pumping permit, a hoarding, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council’s adopted schedule of fees and charges, shall be submitted to Council and approval obtained prior to the commencement of work. (I0081)

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

The Plan shall take into account the objectives of Council’s Environmental Site Management Development Control Plan and shall be compatible with any Construction Management Plan thus ensuring the following objectives are achieved, namely:

1. All possible sediment controls are installed before commencing work.

2. To minimise the area of soils exposed at any one time.

3. To conserve topsoil for re-use on site.

4. To identify and protect proposed stockpile locations.

(a) Diverts clean run-off around disturbed areas

(b) Minimises slope gradient and flow distance within disturbed areas.

(c) Ensures surface run-off occurs at non-erodable velocities.

(d) Ensures disturbed areas are promptly rehabilitated

7. Trap sediment on site to prevent off site damage. Hay bales are not to be used as sediment control devices. To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works until the site is stabilised (includes landscaping).

CONDITIONS RELATING TO WORKS IN THE ROAD RESERVE

These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.

Geebung Lane shall be reconstructed across the frontage to lot 6 DP232490 to the width requirements detailed in Australian Standard AS2890.2 - 2002 Table 3.1 relative to the Medium Rigid Vehicle Two Way Movement. The road carriageway and footpath widening shall be dedicated to Council as Public Road, prior to the issue of the Occupation Certificate.

An access application shall be made to Council to obtain footpath crossing levels before the commencing the final design of internal driveways and car park area. A copy of the issued levels shall accompany the Construction Certificate.

No work whatsoever shall be carried out within the Public Road Reserve unless a “Road Opening Permit” under the Roads Act, 1993 (NSW) has been issued by either Council or the Roads and Traffic Authority for every opening of the public road reserve.

26. Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an Accredited Certifier (Civil Engineer) to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council’s current “Specification for Civil Works Associated with Subdivisions and Developments”.

The engineer shall:

1) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with:

(i) all relevant statutory requirements,

(ii) all relevant conditions of development consent,

(iii) construction requirements detailed in the above Specification, and

(iv) the requirements of all legislation relating to environmental protection,

2) On completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and,

3) Certify that the Works As Executed plans are a true and correct record of what has been built.

PUBLIC UTILITY AUTHORITIES REQUIREMENTS

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

Arrangements shall be made with Energy Australia in relation to:

(c) The need for the provision of a kiosk-type substation.

28. Sydney Water – Notice of Requirements

Prior to the issue of a Construction Certificate or Subdivision Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.

29. Public Utility Authorities

Arrangements shall be made to the satisfaction of all Utility Authorities in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

The internal driveway profile shall be designed to :

(a) Provide adequate sight distance for the safety of pedestrians using the footpath area;

(b) Align with Council’s issued footpath crossing levels; and

(c) Comply with AS2890.1(1993) and AS2890.2(2002) in relation to the design of vehicular access, parking and general manoeuvring. .

Certification from an NPER qualified Civil Engineer to the effect that these design requirements have been met shall accompany the Construction Certificate.

The drainage for this development proposal shall be designed in accordance with the Institution of Engineers’ publication “Australian Rainfall and Runoff” (1987), Council’s “Urban Drainage Design” Manual together with Council’s “Stormwater Management Policy and Guidelines”.

The design shall also take into account the specific requirements of any Development Control Plan, Catchment Management Plan or Stormwater Management Plan relevant to the site. Certification to this effect shall accompany the Construction Certificate provided by a NPER Chartered Civil Engineer in the construction of civil works.

A detailed drainage design shall be prepared in accordance with Australian Rainfall and Runoff (1987), Council's Drainage Design Manual.

Certification to this effect shall be provided by the engineer / registered surveyor/ or an Accredited Certifier.

The design shall include:

33. Drainage Design (Stormwater Disposal)

To ensure the efficient disposal of stormwater and that no problem is caused to surrounding premises, the stormwater from the development shall be discharged to the street gutter.

34. Parking areas and access

All vehicular access, parking and manoeuvrability for the proposed development shall be designed and constructed to comply with AS2890.1 – 1993. The minimum headroom in the basement parking area shall be 2.2m measured from the parking floor to the underside of any beam, ventilation duct or service conduit, or to the underside of any door including a security door and fittings when those doors are in an open position

To ensure proper storage of waste from the premises, an enclosed garbage and recycling storage area shall be provided. This facility shall be designed and positioned to accommodate (and if necessary provide collection access to) waste and recycling bins to Council’s requirements and in order to minimise noise and odour, it shall be located as far as possible away from nearby premises. Within this area a smooth impervious floor shall be provided that is graded to a floor waste and a tap and hose provided to facilitate regular cleaning of the bins. All waste water shall be discharged to the sewer in accordance with the requirements of Sydney Water.

36. Engineering Work

All engineering work in relation to the proposed development shall be designed and constructed in accordance with the requirements of Council’s adopted “Specification for Civil Works Associated with Subdivisions and Developments”.

ENERGY EFFICIENCY

These conditions are imposed to ensure that development is energy efficient and is designed and constructed using appropriate materials and appliances to maximise the use of sustainable energy sources (such as sunlight) and use energy more efficiently.

Details of how it is intended to achieve the Energy Efficiency requirements listed below, shall form part of the Construction Specifications or shall be detailed on the plans endorsed with the Construction Certificate:

(a) A hot water system having a 3.5 rating, using SEDA’s Greenhouse scored.

(b) AAA rated shower heads, wash basins, kitchen sink and toilet cisterns.

(c) Clothes dryers having a 3.5 rating, using SEDA's Greenhouse Scorecard.

Environmental Planning and Assessment Regulation 2000

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

Prior to the commencement of any works, the PCA and the Builder / responsible person shall undertake a pre-commencement site inspection with Council’s Compliance Officer. The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern.

41. Pre-commencement Site Inspection - Road Frontage Works

The Principal Certifying Authority and / or the Supervising Engineer shall undertake a site inspection with Council staff prior to commencement of the road frontage works. The purpose of this inspection is to enable Council’s Assessment Officer(s) to clarify Council’s requirements, as owner of the roadway, in relation to the carrying out of the works.

Contact shall be made with Council’s Engineering Assessment Officer(s) to arrange for the inspection.

Clearly visible all weather signage must be erected in a prominent position on any work site on which building work or demolition work is being carried out showing:
(a) the site address (correct house number and street name);
(b) the Development Consent number;
(c) Principal Certifying Authority details (name and contact phone number);
(d) Builder (or Civil Contractor for subdivision) details including company name, ACN (if applicable), address, phone number, 24 hour contact name and phone number;
(e) Demolition Contractor details (if applicable) including company name, ACN (if applicable), address, phone number, contact name and phone number;
(f) that Unauthorised entry to the work site is prohibited (only applies where works affecting the external walls are being carried out).

Any such sign is to be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

44. Permitted hours for building and demolition work

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

45. Toilet Facilities

1) Toilet facilities shall to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

2) Each toilet provided:

(a) shall be a standard flushing toilet, and

(b) shall be connected:

(i) to a public sewer, or

(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

The provision of toilet facilities in accordance with this clause shall be completed before any other work is commenced.

46. Excavations and backfilling

(a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards

(b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

(c) All trees to be retained on the site shall be suitably protected from damaged during excavation. The extent of all effected root systems shall be identified on the ground and “pegged” by an experience aborist prior to the commencement of work.

47. Retaining Walls and Drainage

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.

(a) shall preserve and protect the neighbouring buildings from damage, and

(b) if necessary, shall underpin and support the buildings in an approved manner, and

(c) shall, at least 7 days before commencing the excavation, give notice of intention to do so to the owners of the adjoining properties and prepare a dilapidation report on those properties and submit such to the Council.

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:

1) If the work involved in the erection or demolition of a building:

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, inconvenienced, or rendered unsafe; or

(a) building involves the enclosure of a public place,

2) A hoarding or fence shall be erected between the work site and the public place.

3) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

4) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

To minimise the impact on the surrounding environment:

1, For construction and demolition periods of 4 weeks or less the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measures at the nearest affect premises.
2 For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.
3. For construction and demolition periods greater than 26 weeks the LAeq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 5 dB(A) when measured at the nearest affected premises.

51. Vibration damage

To minimise vibration damage and loss of support to the buildings in close proximity where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report shall be prepared by a qualified geotechnical engineer detailing the maximum size of hammer to be used for excavation purposes. This report shall accompany the Construction Certificate.

Erosion and sediment control measures shall be implemented and maintained, during the course of construction, to minimise downstream sediment transfer particularly with respect to watercourses, stormwater outlets, fire trails, batters and disturbed ground. All control measures shall be maintained in accordance with Council’s Environmental Site Management Development Control Plan and "Specification for Civil Works Associated with Subdivisions and Developments”.

Topsoil, excavated material, construction & landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property. For further information, refer to Council’s Environmental Site Management Development Control Plan.

54. Construction materials and machinery must be kept on site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Council’s Environmental Site Management Development Control Plan.

55. Spoil deposited on public roads

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the public way is taking place then the cartage of spoil shall cease if so directed by Council.

The proposed security doors fitted to the car parking areas shall be independently mounted on rubber pads to prevent vibration noise transmission through the concrete walls and / or columns.

57. Certification Requirement – Prior to pouring of concrete

Certificate shall be provided from a registered surveyor at the following stages of construction to ensure that when completed the structure will comply with the design details endorsed and accompanying the Construction Certificate:

a) Prior to the pouring of the initial / lowest floor slab, verifying the location and level of the steel / formwork is such to ensure that the concrete when poured will comply with the approved floor level.

b) Prior to the pouring of each floor slab, verifying the location and level of the steel / formwork is such to ensure that when completed, the building will comply with the approved roof height.

A traffic management plan shall be prepared detailing all proposed traffic and pedestrian management measures during all phases of the site construction. This plan shall detail all proposed temporary and permanent road and footpath closures, traffic diversions and parking and traffic management facilities in the un-named lane and Preston Avenue/Old Princes Highway.
This traffic management plan shall be submitted to, and approved by the Sutherland Traffic Committee prior to the issue of a construction certificate.

The communal open space areas shall be provided with an efficient irrigation system to enable effective landscape maintenance. Details of this shall be provided in the landscape plan which shall accompany the Construction Certificate.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.

A Compliance Certificate under s73 of the Sydney Water Act, 1994, shall be submitted to Council by the PCA prior to occupation and attached to the an Occupation Certificate or before the issue of a Subdivision Certificate. Sydney Water may require the construction of works and/or the payment of developer charges.

Certification shall be provided from a registered surveyor to the effect that:

1. All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.

2 All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

3. All rights-of-way or positive covenants required by conditions of this development consent have been provided.

Certification shall be provided from the supervising engineer to the effect that:

1. All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council’s Specifications For Civil Works associated with Subdivisions and Developments”.

To ensure that all works are completed in accordance with the Development Consent, certification from an Accredited Certifier shall accompany the Occupation Certificate or Completion Report, to the effect that the following works have been completed:

(a) General Compliance

(b) Set out of Building

(c) Level of Lowest Floor

(d) Works in Roadway

(e) Acoustic Works - Report

(f) Energy Efficiency

The Development shall not be occupied or used until:

1. A Final Occupation Certificate and Completion Report is issued and provided to Council for the development, or

2. (i) Approval is obtained from Council to stage the development to permit occupation or use of part of the development covered by the Development Consent and

(ii) An Interim Occupation Certificate and Completion Report is issued and provided to Council for the development.

The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information. This shall accompany the Final / Interim Occupation Certificate.

(a) Subject property description.

(b) A description as to the whole or part of the development in respect of which the Completion Report is given.

(c) Development Consent reference number and Construction Certificate reference number.

(d) A description of any work/ stages that has been inspected, the date of the inspection and by whom such inspection was carried out.

(e) A list of any documents required by the Consent, referred to or relied upon in respect of which the Completion Report is given.

(f) A copy of any such documents referred to or relied upon within the report.

(g) A statement to the effect that the Consent Authority or Accredited Certifier certifies that the subject stages of the development were inspected and found to be satisfactory. The whole development or described part (as the case maybe), is completed and complies with the issued development consent and construction certificate (approved plans, specifications and conditions).

(h) Name and signature of the Consent Authority or Accredited Certifier (with Accreditation Number and Accreditation Body) making the report.

(i) Date of the report.

66. Final site Inspection

Prior to the issue of the Subdivision or Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant’s Supervising Engineer and Council’s Compliance Officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed.

That part of the western end of the subject site nominated as “area to be dedicated to Council for future park” on plan No. DA11F dated 8/12/03 shall be dedicated as public reserve at the same time as the plan of strata subdivision comes into effect.

OPERATIONAL CONDITIONS

70. Carparking areas

To ensure that the hotel carparking provision satisfies the demands of the hotel staff and patrons it shall be made available on an unrestricted basis at all times the hotel is in operation.

71. A plan of management detailing the procedures for opening and closing of the hotel car park by the hotel licensee and the management of security issues shall be submitted for Council’s approval prior to occupation of the hotel car park. This plan of management shall incorporate a yearly review mechanism to ensure the operational efficiency of the car parking arrangements.

To minimise the impact on the surrounding residents, the proposed car park exhaust shall be acoustically attenuated so that the noise emitted does not exceed a sound pressure Leq of 5dB above the ambient background noise level in any octave band, from 31.5Hz to 8kHz centre frequencies inclusive when measured at the boundary of the subject site or on any balcony of the premises itself. Further, any noise emitted shall not be audible within any sole occupancy unit with its windows or doors closed.

Note : The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

To minimise the impact on the surrounding residents, the proposed car park exhaust shall comply with AS1668.2 (1991) entitled “the Use of Mechanical Ventilation and Air Conditioning in Buildings – Mechanical Ventilation for Acceptable Air Quality.

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Citations

Markev Investments Pty Ltd v Sutherland Shire Council [2004] NSWLEC 88

Most Recent Citation

Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31

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Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31

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CITATION:	Markev Investments Pty Ltd v Sutherland Shire Council [2004] NSWLEC 88 revised - 3/06/2004
PARTIES:	APPLICANT Markev Investments Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10139 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Mixed use residential/parking development - appropriatness of development - design elements - orderly development Principles - Mixed use residential amentiy - Orderly development
LEGISLATION CITED:	State Environmental Planning Policy No. 65 Sutherland Shire LEP 2000
CASES CITED:
DATES OF HEARING:	04-06/08/2003, 17/11/2003 and 20/02/2004
DATE OF JUDGMENT:	03/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout