Moses v Waverley Council
[2009] NSWLEC 1369
•13 November 2009
Land and Environment Court
of New South Wales
CITATION: Moses v Waverley Council [2009] NSWLEC 1369 PARTIES: APPLICANT
RESPONDENT
Michael Moses
Waverley CouncilFILE NUMBER(S): 10472 of 2009 CORAM: Bly C KEY ISSUES: DEVELOPMENT APPLICATION :- Studio apartments in mixed use building, bulk and scale, visual impact, consent orders amended plans. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
State Environmental Planning Policy 65DATES OF HEARING: 21 October 2009 and 6 November 2009 (amended plans)
DATE OF JUDGMENT:
13 November 2009LEGAL REPRESENTATIVES: APPLICANT
Mr P Clay (barrister)
SOLICITOR
Surry PartnersRESPONDENT
Mr M Staunton (barrister)
SOLICITOR
Sparke Helmore
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
12 November 2009
JUDGMENT10472 of 2009 Michael Moses v Waverley Council
1 This appeal relates to a development application (DA265/2009) for two additional studio apartments on the rooftop of the mixed-use building at 181 Glenayr Avenue, Bondi Beach. These proposed apartments are in addition to seven similar, approved rooftop apartments that have not yet been constructed (DA464/2006).
2 The existing building is three storeys in height and contains retail/commercial tenants at the ground floor level and 24 serviced apartments at first and second floor levels. It extends to all four boundaries of the site.
3 The nine apartments will be positioned on top of this building and will have outdoor terraces that effectively set the new structure back from the site's southeast, southwest and northwest boundaries.
4 The rectangular shaped site is located on the northwest side of a five-way intersection with Hall Street, O'Brien Street and Glenayr Avenue and has an area of 573 sq m. The site's locality includes a mixture of retail and office uses with first and second floor residential accommodation, residential flat buildings and attached and detached dwelling houses.
5 The site is zoned Business General 3(a) under Waverley Local Environmental Plan 1996 and in this zone the proposal is permissible with development consent.
6 The council's Design Review Panel considered the application concluding that the proposal is consistent with SEPP 65 principles. The panel commented, inter alia, that:
- "The use, scale, density and form of the building and the proposed additions to it are appropriate to its context... the panel commends the proposal to the council."
7 On 15 July 2009 the applicant appealed to this court against council's deemed refusal of the application. The appeal was conducted as an on-site hearing on 21 October 2009.
8 At the hearing the principal contention raised by the respondent council involves the bulk and scale of the building having regard to noncompliances with clauses 27, 28 and 32 of the LEP. Clause 27 limits the floor space ratio of mixed-use developments to 2:1 whereas the proposal has a floor space ratio of 2.79:1. Clause 28 relevantly limits the height of buildings to 12 m whereas the proposed building has a height in part of 12.96 m. Because clause 28 is a development standard and objection under State Environmental Planning Policy No 1 - Development Standards has been provided. Clause 32 deals with development along zone boundaries, the site having a common boundary with the Residential 2(b) zone.
9 Fire safety had been an issue but this was resolved by the imposition to a number of agreed conditions of consent.
10 The issue of the bulk and scale was addressed by Ms K. Gordon consultant town planner for the council and Mr T. Moody consultant town planner for the applicant in their joint report. In that report they noted that the sole issue in dispute is the visual impact of the two additional units noting that there are otherwise no unreasonable adverse amenity impacts.
11 In the joint report Ms Gordon explained that that the combination of the additional built form and the existing northwest facing blank wall provides an inappropriate transition between the site's 3(a) zone and the adjoining 2(b) zone. As a consequence it would be contrary to the 2(b) zone objective of maintaining and improving the amenity and existing characteristics of the locality.
12 Mr Moody disagreed explaining that the visual impact is reasonable taking into account the setbacks of the two units from the boundaries from both Hall Street and the zone boundary, the skillion "floating roof" design and the provision of rooftop landscaping.
13 The proposed built form was considered from various viewing positions mainly in Hall Street and it was noted that there were few locations where the two dwellings would be conspicuous taking into account viewing angles, setbacks, proposed landscaping and the existing street trees. With a view to resolving the matter I enquired whether a slightly different roof form would so reduce the extent to which the built form would be seen that visual impact would no longer be of concern to the council.
14 The applicant subsequently prepared amended plans that the council finds acceptable and the parties have now provided consent orders to the Court on 6 November 2009.
15 I have now considered these plans and that the conditions of consent attached to the consent orders and have decided to uphold the SEPP 1 objection and the appeal and grant conditional development consent.
16 In my opinion the amendment to the plans, for the purposes of s97B of the Environmental Planning and Assessment Act 1979, comprises a minor amendment.
17 The orders of the Court are therefore, by consent:
1. The appeal is upheld
2. Development application 265/2009 for two additional studio apartments on the rooftop of the existing mixed-use building at 181 Glenayr Ave, Bondi Beach is approved subject to the conditions in Annexure A hereto.
3. Exhibit 5 is retained.
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- T A Bly
Commissioner of the Court
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Annexure ‘A’
Conditions of Consent
Moses v Waverley Council
181 Glenayr Avenue Bondi Beach
A. Approved Development
1. Approved Development
The development must be in accordance with:
(a) Architectural Plan No. DA-01 to – DA03 and DA-07, all Issue E dated 25/05/09, and DA04, DA05 and DA06 all Issue F dated 28/10/09 prepared by Brian Meyerson Architects Pty Ltd, dated 25/05/09, except where amended by the following conditions of consent; and
(b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.
(c) The BASIX Certificate.
2. architect to supervise design
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 Flat Development.
B. compliance prior to issue of construction certificate
3. SECTION 94A CONTRIBUTION
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:
(a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council:
1. Where the total development cost is less than $500,000:
2. Where the total development cost is $500,000 or more:
"Waverley Council Cost Summary Report"; or,
"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".
A copy of the required format for the cost reports may be obtained from Waverley Council Chambers (First Floor) or downloaded from:
(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.
- 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.
4. security deposit
A deposit or guarantee satisfactory to Council for the amount of $2,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.
5. long service levy
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: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.
6. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE
The building work, including demolition, must not be commenced until:
(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
(c) Council is given at least two days Notice in writing of the intention to commence the building works.
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.
7. hoarding required
If required, hoarding designed and constructed in accordance with the requirements of the Work Cover Authority is to be erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings are 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.
Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.
8. SITE WASTE AND RECYCLING MANAGEMENT PLAN
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.
The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction.
9. EROSION, SEDIMENT AND POLLUTION CONTROL
Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.
10. Construction Vehicle Plan of Management
Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.
11. STORMWATER MANAGEMENT
All seepage and surface waters and roof waters being collected and disposed of in accordance with Council's Stormwater Policy and this may involve the provision of an on-site detention system (OSD). Details prepared by a Hydraulics Engineer are to be submitted to and approved by the Principle Certifying Authority prior to the issue of a Construction Certificate.
12. ENGINEERING DETAILS
Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.
13. amended landscape plan
The Landscape Plan is to be amended by the following:
(a) That species selection in the rooftop planter boxes at the western boundary be planted with one of the following species from Council’s local native planting guide:
Acmena smithii 'minor' (Lillypilly) 3.5 m; or
Leptospermum laevigatum (Coastal Tea tree) 4 m; or
Banksia ericafolia (Heath Banksia) 3 m; or
Callistemon citrinus (Crimson Bottlebrush) 1.5 m; or
Westringa fruticosa ( Coastal Rosemary) 3 m.
The rooftop planter boxes are to be fitted with an automated drip irrigation system (or similar). The landscaping within the planter boxes is to be maintained in perpetuity and any plants that die are to be replaced.
14 essential services - existing building
Details of the currently implemented and proposed essential fire safety measures shall be submitted to Council, with the Construction Certificate, in the form of a Fire Safety Schedule. This Schedule shall be prepared by a person competent to do so and shall specify the minimum standard of performance for each essential fire safety measure included in the Schedule.
At the completion of the installation, a Final Fire Safety Certificate shall be attached to the Occupation Certificate, certifying that each essential fire safety measure specified within the current Fire Safety Schedule:
(a) has been assessed by a properly qualified person; and
(b) found to be capable of performing to at least the standard required by the current Fire Safety Schedule for the building for which the Certificate is issued.
15 BASIX
The undertakings provided in the BASIX Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate. If required, a modified BASIX Certificate shall be provided that reflects the development as approved (eg addressing any modification required via conditions of consent). Any significant works (ie any works not able to be considered as Exempt and Complying Development) that result from changes to the BASIX Certificate or conflict with conditions of consent require Council's consent.
The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate.
The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act 1979.
16 USE OF RENEWABLE TIMBERS
Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.
C. compliance prior to and during construction
17 PRIOR TO SITE WORKS
The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
(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
(c) any change to these arrangements for doing of the work.
18 home building act
The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard 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 the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.
19 CONSTRUCTION SIGNS
Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.
20 obstruction to public areas
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
(c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided.
21 TOILET FACILITIES
Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.
22 DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS
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
(f) describe the disposal methods for hazardous materials.
23 COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS
All site works complying with the occupational health and safety requirements of WorkCover NSW.
24 SOIL AND WATER MANAGEMENT PLAN
A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DEC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request.
25 STOCKPILES
Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
26 LOCATION OF BUILDING OPERATIONS
Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.
27 TEMPORARY DIVERSION OF ROOF WATERS
Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.
28 ALL BUILDING MATERIALS STORED ON SITE
All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.
29 CONSTRUCTION HOURS
Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:
(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;
(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.(b) Sundays and public holidays; and
Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.
30 CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS AND NOT EXCEEDING 26 Weeks
The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.
31 BUILDING CODE OF AUSTRALIA
All building work must be carried out in accordance with the requirements of the Building Code of Australia.
32 QUALITY OF CONSTRUCTION ACT - INSPECTIONS (RESIDENTIAL FLAT DEVELOPMENT AND OTHER RESIDENTIAL CLASS 2, 3 AND 4)
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 Planing 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).
Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.
33 IN-SINK WASTE DISPOSAL SYSTEMS
The installation of in-sink waste disposal systems is prohibited.
34 WATER PROOFING
The floor and wall surfaces of the proposed bathrooms, ensuites and laundry 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.
Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.
35 HOT TAP WATER SCALDING
To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.
36 SMOKE ALARM SYSTEM
A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.
37 TREE PROTECTION
Precautions shall be taken when working near trees to ensure their retention, including the following:
(a) Do not store harmful or bulk materials or spoil under or near trees;
(b) Prevent damage to bark and root system;
(c) Do not use mechanical methods to excavate within root zones;
(d) Do not add or remove topsoil from under the drip line;
(e) Do not compact ground under the drip line;
(f) Do not mix or dispose of liquids within the drip line of the tree; and
(g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter.
38 work outside property boundary
All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.
D. compliance prior to an occupation certificate or commencement of use
39 FINAL OCCUPATION CERTIFICATE
The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.
40 LIGHTING
Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting.
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