Micallef v North Sydney Council

[2008] NSWLEC 1272

Land and Environment Court

of New South Wales

CITATION:	Micallef v North Sydney Council [2008] NSWLEC 1272
PARTIES:	APPLICANT Steven and Athena Micallef RESPONDENT North Sydney Council
FILE NUMBER(S):	10233 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- construction of a pedestrian bridge providing access between the rear of the garage and the dwelling and a swimming pool and associated landscaping in the rear yard - conditions of approval - bond - issue of Construction Certificate
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	3/07/08
EX TEMPORE JUDGMENT DATE:	3 July 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Ms M Astridge, solicitor SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 July 2008

10233 of 2008 Steven and Athena Micallef v North Sydney Council

JUDGMENT

1. COMMISSIONER : This is an appeal against the deemed refusal by North Sydney Council (the council) of DA 9/08 for the construction of a pedestrian bridge providing access between the rear of the garage and the dwelling and a swimming pool and associated landscaping in the rear yard of the property at 42A Milray Avenue Wollstonecraft (the site).

2. The proceedings were conducted as and On Site Hearing and the judgement reflects that the contents of the Statement of Facts and Contentions and the findings given on site.

3. The appeal was lodged on 17 March 2008 however the council granted development consent to DA 9/08 on 19 May 2008. The issues in the appeal subsequently related to the imposition of two conditions of consent; Condition C12 required a bond against damage to infrastructure and completion of engineering works for $20,000 and condition D2 required that no building work, demolition or excavation shall be carried out until late Construction Certificate has been issued .

Condition C 12
4. The council provided evidence from engineers Mr Robin Howard and Mr Zarco Cvetkovic from the council. They stated that condition C 12 was necessary as an easement to drain water, benefiting the council, traverses the southern boundary of the site. The easement contains a 600 mm drainage line owned and operated by the council for the purposes of draining water from Milray Avenue. As the location of the approved swimming pool directly adjoins the drainage line, the potential exists to affect the lateral stability of the drainage line and/or cause direct crushing from plant and machinery used for the construction of the proposed swimming pool. The $20,000 bond is based on the cost of restoring up to 20 m of damaged 600 mm drainage line.

5. Following discussions between Mr Howard and Mr Cvetkovic and Mr and Ms Micallef amendments to condition C 12 were generally agreed upon by the parties. The amendments provided for the $20,000 bond to be retained but broken into two components; a bond of $19,000 against damage to the drainage line and a bond of $1000 for other works associated with the development, such as damage to footpaths. The condition was also amended to allow for a refund of the each bond independent of the other. The amended condition C 12 states:
Bond for Infrastructure Damage and Completion of Engineering Works

C 12. Prior to the issue of a Construction Certificate the applicant must lodge a $ 20,000.00 public infrastructure damage bond with Council. This bond is applied pursuant to Section 80A(6) of the Environmental Planning and Assessment Act, 1979 to cover the cost of:
• Making good any damage that may be caused to any public infrastructure as a consequence of doing or not doing any thing to which this approval relates,
• Completing any public infrastructure works that are required in connection with this approval.


The bond is calculated as follows:

a Description	b Amount
Completion of required infrastructure works comprising:	$20,000.00
(a) full works adjacent to the Council’s easement to drain water; and	$19,000.00
(b) works affecting other infrastructure.	$1,000.00

The bond shall be lodged in the form of a deposit or bank guarantee and will be refundable following completion of all works relating to the stage of the proposed development as identified in the above table and at the end of any maintenance period stipulated by consent conditions, upon approval by Council’s Engineers. Further, Council shall have full authority to make use of the bond for such restoration works as deemed necessary by Council in the following circumstances:

a) Where the damage constitutes a hazard in which case Council may make use of the bond immediately, and
b) The applicant has not repaired nor commenced repairing damage within 48 hours of the issue by Council in writing of instructions to undertake such repairs or works.
c) Works in the public road associated with the development are to an unacceptable quality.

(Reason: To ensure security is in place to maintain quality of public infrastructure)
Condition D 2
6. Mr Micallef stated that the condition prohibits the removal of part of the existing deck (in the area of the proposed swimming pool) to allow for investigations by his engineer to allow for the preparation of Construction Certificate drawings. Following further discussions between the parties, it was generally agreed that condition D 2 could be amended to allow for the investigation required by Mr Micallef’s engineer providing that the structural stability of the deck structure was not affected and the area limited. The amended condition D 2 states:

Excavation/Demolition
D 2. No building work, demolition or excavation shall be carried out until a Construction Certificate has been issued with the exception of the partial removal of the deck flooring to the degree necessary for the engineer to undertake any necessary investigation for the purposes of the issue of a construction certificate. This does not give permission for the removal of any structural elements of the deck.

(Reason: To ensure compliance with statutory provisions)

7. The orders of the Court are:
1) The appeal is upheld.
2) DA 9/08 for the construction of a pedestrian bridge providing access between the rear of the garage and the dwelling and a swimming pool and associated landscaping in the rear yard of the property at 42A Milray Avenue Wollstonecraft is approved subject to the conditions in Annexure A.
___________
G T Brown
Commissioner of the Court