Oceanic Developments Australia Pty Limited v Sutherland Shire Council - [2003] NSWLEC 345

Land and Environment Court

of New South Wales

CITATION: Oceanic Developments Australia Pty Limited v Sutherland Shire Council [2003] NSWLEC 345

PARTIES:
APPLICANT
Oceanic Developments Australia Pty Limited
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10214 of 2003

CORAM: Tuor C.

KEY ISSUES: Development Application :- for a medium density housing development
loss of trees and vegetative corridor
character of the area and visual impact
Impact on residential amenity

LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Draft Local Environmental Plan 2003
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING: 25/9/03 - 30/9/03 and 02/10/03

DATE OF JUDGMENT:
12/17/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mrs Josephine Kelly, barrister
instructed by
Ms Rebecca Mohr
of
Deacons
RESPONDENT
Mr Gary Green, solicitor
instructed by
Ms Natasha Hishmen
of
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10214 of 2003

Tuor C

17 December 2003

OCEANIC DEVELOPMENTS AUSTRALIA PTY LTD

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

Judgment

Introduction

1 This is an appeal against the deemed refusal by Sutherland Shire Council (the council) of a development application for a medium density housing development at 20R Helena Street and 59 Bligh Street, Kirrawee.

The site and its context

2 The site consists of two allotments being lot 2 DP605791 (20R Helena Street) and lot 121 DP 228631 (59 Bligh Street). It is L shaped with a combined site area of 8045m2. The allotment at 20R Helena Street is vacant with the eastern part being bushland with two watercourses. The remainder of the allotment has been disturbed but retains a number of trees. It is long, narrow and irregular in shape, with an area of 7243m2, a northern boundary of 253m and a western boundary of 44.21m. The land slopes about 6m from north to south. This allotment is land locked between residential properties to the south and east along Meehan Place and Bligh Street, the Royal National Park and Helena Street Road Reserve to the west and the former RTA F6 Freeway corridor reservation to the north.

3 The allotment at 59 Bligh Street has an area of 802m2 with a frontage of 26.7m to Bligh Street. The western part of the site has a two storey house located near two significant trees. Two drainage easements flow through the eastern part of the site. The site slopes steeply towards these and also slopes from north to south. A right of way that provides access to 61 Bligh Street and 1 Meehan Place also burdens the property.

4 Surrounding development is characterised by detached houses of a variety of heights and styles within a bushland setting. The houses in Bligh Street and Meehan Place are predominantly two storeys, often above a garage level. They overlook the National Park and because of the size of the houses and the slope of the land they are visible, through trees, in an elevated position above the street.

Background

5 A development application (DA 2002/2165) for the construction of 18 townhouses on the site was lodged on 3 December 2002. As a result of public submissions and matters raised by council staff, the application was amended to reduce the number of town houses to 15 and advertised a number of times before the hearing, The main issues of concern raised in submissions related to bulk and scale, overshadowing, traffic, loss of privacy and retention of trees.

6 The application is Integrated Development as a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 is required. The then Department of Sustainable Natural Resources (DSNR) issued General Terms of Approval on 2 May 2003 for the original application. These required a 10m Riparian zone west of the watercourse. Further General Terms of Approval from the Department of Infrastructure, Planning and Natural Resources (DIPNR), were issued on 24 September 2003 (the day before the hearing) in response to the amended application for 15 town houses. These clarified that the Riparian Zone was to be 10m from both watercourses.

7 At the hearing the applicant sought leave to rely on further amended plans prepared in response to the latest General Terms of Approval. These plans reduced the number of townhouses to 13 to remove any building from the Riparian Zone. The amendment also converted Unit 1 to be an adaptable unit and modified the access way and driveway. I granted leave for these amended plans and directed the experts to prepare joint statements on the amended plans.

The proposal

8 The proposal is to construct 13 town houses, including two adaptable townhouses, with basement parking for 26 cars and two visitor parking spaces on the allotment of 20R Helena Street. The proposal includes the demolition of the existing house at No 59 Bligh Street and construction of a driveway off Bligh Street through this allotment to provide vehicular access to the townhouses. Three further visitor parking spaces are provided off Bligh Street. Emergency access for fire vehicles, as well as pedestrian access, is available off Helena Street.

9 The town houses are two storeys over the basement car park. Due to the slope of the land, the car park is generally below natural ground level to the north and above ground to the south. Five townhouses have four bedrooms and eight have three bedrooms. Each townhouse has an area of private open space to the north, which is generally below natural ground level. The eastern part of the site is to be retained as a Riparian Zone and the southern part of the site forms a vegetative corridor that links the National Park with the bushland to the east and the former F6 Freeway.

Statutory framework

10 The site is zoned 2 (a1) Residential under the Sutherland Shire Local Environmental Plan 2000 (LEP 2000). Townhouses are permissible with consent, except on internal allotments. Council accepted that the site was not an internal allotment, although Mr Green’s submission for the council was that it had the characteristics of one.

11 Clause 30 of the LEP provides criteria that must be taken into account in the assessment of whether residential development satisfies the objectives of the zone. These criteria are:

(a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy.

(b) the effect of the proposed development on the quality of the streetscape,

(c) the cumulative impact of successive development on the general character of the neighbourhood,

(d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area,

(e) the retention and enhancement of existing vegetation,

(f) any adverse impact on the natural and built environment,

(g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards,

(h) the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity.

12 Cl 32 of LEP 2000 states that:

Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on:

(a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or

(b) the protection of wildlife corridors and vegetation links with other nearby vegetation, or

(c) the protection of bushland vegetation as a natural stabiliser of the soil surface and the protection of existing landforms such as natural drainage lines, water courses and foreshores, or

(d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape.

13 The objectives for the 2(a1) Residential zone in cl 33(1) of LEP 2000 are:

A residential environment:

(a) where the scale, amenity and general character of the area is preserved, and

(b) where the streetscape is characterised by detached 1 and 2 storey residential buildings, and

(c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house development,

14 LEP 2000 also contains development standards that include height, floor space ratio, landscaped area and allotment size. The parties agreed that the proposal complied with these standards.

15 Sutherland Shire Draft Local Environmental Plan 2003 (LEP 2003) has been publicly exhibited and is therefore a matter for consideration. Under the draft LEP, the site is zoned Environmental Housing (High Risk) and townhouses are a prohibited use. The freeway land is proposed to be zoned open space. This is in response to the Minister’s gazettal on 28 February 2003 that the freeway reservation would not be used for road purposes and that part of the reservation between the National Park and Gymea Station would be “preserved, as much as possible, for open space”.

16 Sutherland Shire Landscape Development Control Plan and Sutherland Shire Townhouses and Villa Houses in 2(a1) & 2(a2) Residential Zones (the Residential DCP) are also relevant. The objectives of the Residential DCP include:

(a) To ensure that townhouses and villa houses are compatible in scale and character with existing housing and do not adversely affect the local environment or the amenity of adjacent residents.

17 The Residential DCP provides more detailed provisions in addition to the standards in LEP 2000, including: siting and scale; landscape and private open space; streetscape and building design; car parking; privacy and overshadowing.

18 Under s91A of the Environmental Planning and Assessment Act 1979 (EPA Act) the proposal is integrated development and requires a permit under Part 3 of the Rivers and Foreshores Improvement Act 1948.

19 The parties did not agree on whether State Environmental Planning Policy No 19 - Urban Bushland (SEPP 19) applied to the site. Mr Green, for the council, and Mrs Kelly for the applicant agreed that the operative provisions did not apply but disagreed on whether the general and specific aims of the policy were relevant. The general aim is protect and preserve bushland with the urban area. This aim reflects sound planning principles and is similar to the criteria articulated in cl 32 of LEP 2000. I therefore do not need to address the applicability of SEPP 19 as the aim of the policy has been considered through the consideration of other planning controls.

Issues

20 The Statement of Issues contained 21 issues. The amended plans resolved a number of issues and those remaining can be catagorised into the following issues:

i) Whether the proposal has an acceptable impact on the natural environment, particularly the number of trees to be removed and whether the vegetative corridor will be retained.

ii) Whether the proposal has an acceptable visual impact and is compatible with the character of the area.

iii) Whether the proposal has an acceptable privacy and overshadowing impact on adjoining residences.

21 The following experts gave evidence:

For the council
Mr M Devlin, town planner
Mr M Lucchitti, architect
Mr I Drinnan, environmental scientist
Mr I English, arborist

For the applicant
Mr T Byrnes, town planner/architect
Mr B Lydon, arborist
Mr G Mills, ecologist

22 Statements of Evidence and/or Joint Statements were also provided by the following experts but they were not required for cross examination:

For Council

Mr Anderson, Development Assessment Officer, Engineering
Mr B Walker, Geotechnical engineer

For the Applicant

Mr L Marshall, Traffic engineer
Mr R Best, Geotechnical engineer
Mr G Jones, Drainage engineer

23 The Court also heard evidence from the following residents:

Mr G Waters, 61 Bligh Street, Kirrawee
Mr S Ward, 55 Bligh Street, Kirrawee
Mr G Brooker, 76 Bligh Street, Kirrawee
Mr B Roberts, 1 Meehan Place, Kirrawee
Mr J Lawler, 7 Meehan Place, Kirrawee
Mr P Schulties, 8 Meehan Place, Kirrawee
Mrs L Baum, 5 Meehan Place, Kirrawee
Mrs J Summerfield, 11 Meehan Place, Kirrawee

24 In addition to the issues raised above, the residents raised concerns about the impact of traffic in Bligh Street and Meehan Place as a result of the development.

Loss of trees, landscaping and vegetative corridor

25 The main areas of disagreement between the experts were whether:

the extent of trees to be removed was acceptable and whether those to be retained would survive, particularly as a result of the excavation on the site.

the landscaping plan provided sufficient detail and could be successfully implemented.

a sufficient number of trees would be retained to the south of the site to maintain a vegetative corridor between the National Park to the south west and the Riparian Zone and proposed open space to the north east of the site.

26 The issue of tree loss and landscaping is linked to the issue of whether the proposed development has an acceptable visual impact and maintains the character of the area, which I will discuss below.

27 Mr Lydon and Mr English agreed that of the 177 trees on the Tree Retention Plan, 56 would be removed as a direct result of the development: including the driveway; fire access trail and removal for bushfire mitigation. They disagreed on the number of trees to be retained, Mr English opinion was that 33 of these trees would decline within 3-5 years as a result of construction works, fire mitigation, or inadequate tree protection. In Mr Lydon opinion these trees would survive, although 2-3 may naturally decline due to poor health, irrespective of the proposal.

28 Mr English and Mr Lydon disagreed about whether the significant angophora tree (Tree No 166) on No 59 Bligh Street would survive. This tree plays an important role in screening the site from the south. The main area of disagreement was that Mr English considered a 6m tree preservation zone (TPZ) was the minimum requirement to ensure the tree’s survival and that otherwise it would decline within 10 years. Whereas Mr Lydon considered a 4m TPZ was adequate. The applicant proposed the deletion of the visitor car parking space which would result in a TPZ greater than 4m in all directions except to the east where excavation is to occur for the driveway and footpath. While I accept that the survival of the tree may not be guaranteed past 10 years, the removal of the car space and appropriate measures incorporated into the tree management plan should ensure the best chance for its long term survival. Retention of the tree is not of itself a grounds for refusal, particularly as the impact results from the location of the driveway which is a constraint of the site for any development.

29 The other trees which the experts disagreed would be retained are mainly located to the south of the building and form part of the vegetative corridor. Mr English opinion that these trees would not survive was based on the assumption that the excavation of the basement car park would alter the drainage pattern to these trees: that they were located in rocky part of the site with shallow soil and would be sensitive to any change in their environment. He was also concerned that the landscape plan lacked detail and proposed trees in locations with shallow soil over rocky outcrops. He doubted the ability of trees to thrive in this environment and considered that there was no certainty that the landscape plan could be implemented.

30 Mr Lydon was confident that the landscape plan could be implemented. He said that it provided sufficient detail for a concept landscaped plan and that the conditions required a final plan to be prepared which addressed in greater detail the specific requirements of the site. The detailed plan is to incorporate the requirements of the ecologist in relation to the southern vegetative corridor.

31 In relation to the impact on groundwater from excavation, Mr Lydon based his opinion on the agreed statement of the Geotechnical experts, Mr R Best, for the applicant and Mr B Walker for the council. The experts agreed:

That the development would be likely to affect shallow groundwater/soil moisture/groundwater flow in the strip of land to the south of the proposed basement car park. The effect would be to reduce the presence of groundwater (in any of its forms). The influence of the development on ground water would be limited to the subsurface above the level of the proposed basement car park.

We agree that the provision of seepage pits fed by surface runoff would not exactly duplicate conditions prior to development. Such pits would however provide a source of shallow moisture/groundwater seepage within the depth where seepage/groundwater is affected by the proposed basement excavation.

32 Mr Lydon concluded that there would be little impact on the health of the trees particularly as they were generally below the level of the basement car park and their ground water would not be affected. For the trees above this level, Mr Lydon was confident that the pre development flows could match the post development flows so as not to impact on the health of the trees. To address this issue, the applicant has proposed a condition that requires that if after the bulk excavation of the car park the ground water conditions are altered then a passive irrigation system is to be provided. This is to be designed by a geotechnical engineer in consultation with the arborist to more closely replicate the pre development flows.

33 The other concern that Mr English had in relation to the trees to the south of the site was that they were mainly trees of low value or ones that had been recommended for removal by Mr Lydon. The evidence of Mr Lydon was that these trees had been classified as such because of poor form and structure. Although a few were also in poor health, it did not mean that the majority would not survive in the long term or could not be retained if this was required.

34 In Mr Mill’s opinion trees would die as part of the natural process and what was critical was to ensure that sufficient trees were retained for a sufficient period of time to enable replacement trees to be established to maintain the vegetative corridor. To maximise the value of the corridor as a wildlife link he agreed with Mr Drinnan that the gap between canopy trees should be no greater than 15m and that this should be supplemented by lower planting and shrubs. In his opinion it was critical that this planting regime continue in the long term to ensure that as trees die they are replaced.

35 The ecologists agreed that:

If the trees shown on the landscape plan proposed to be retained can be kept, combined with appropriate landscaping (planting of trees and shrubs) then habitat corridor function will be maintained.

36 Although the evidence of the arborists was inconclusive in relation to the number of trees likely to be retained in the southern corridor, I am satisfied that a sufficient number of the trees shown on the Tree Retention Plan and the Landscaped Concept Plan will survive for a sufficient period of time to enable replacement trees to be established. This will maintain the trees function as a wildlife corridor. The conditions suggested by the applicant include that the detailed landscape plan incorporate the ecologists requirements in relation to appropriate planting in this area as well as the requirement that these trees be planted prior to the completion of the ground floor slabs to enable a longer establishment period. The conditions also require a tree management plan to be prepared which includes measures to protect the trees to be retained in the southern corridor. These conditions, together with the management of ground water already discussed, make it likely that the corridor is will to be retained and enhanced.

37 In addition, the applicant has agreed to a condition that requires environmental covenants for the ongoing management of both the southern vegetative corridor and the Riparian Zone. The environmental covenant for the Riparian Zone was recommended in DIPNR’s Terms of Approval and was suggested by the Court for the southern vegetative corridor as a mechanism to ensure that as trees die they will be replaced after the landscape plan has been implemented. Council did not oppose this condition.

38 I accept Mr Green’s submission that adequate attention was not given to the environmental constraints of the site in the initial design stage and that further amendments to the design could provide for the retention of more significant trees. However, I am satisfied that the amended development with the proposed conditions satisfies cl 32 and “will not have a significant adverse effect on the protection of wildlife corridors and vegetation links with other nearby vegetation”.

39 I am also satisfied that the proposed development has adequately addressed the criteria in cl 30, namely

(e) the retention and enhancement of existing vegetation,
(f) any adverse impact on the natural and built environment,

40 In reaching this conclusion I have had regard to the extent of the site being retained as open space, particularly the 870m2 to the east of the site required for the riparian zone. While I acknowledge that this area due to its topography, vegetation and proximity to water courses is unsuitable for development its on going maintenance will be the responsibility of the owners of the development. It provides an important link to the area to the north proposed to be public open space.

41 I have given weight to the evidence that the site complies with the standards in the LEP and has a floor space ratio, (even including the basement car park) that is below the maximum permissible, and a landscaped area (even excluding the Riparian Zone) that exceeds the minimum requirement. I do not accept Mr Green’s submission that this is a case of development seeking to maximise the potential of the site. Rather it is development of a site with environmental constraints, which are not so significant as to preclude development of the site. Particularly as it zoned for development and not proposed for open space purposes.

Character of the area and visual impact

42 The main area of disagreement between the experts was the extent to which the development would be visible from the surrounding area; whether it had an acceptable visual impact; was consistent with the character of the area; and met the requirements of LEP 2000 and the Residential DCP.

43 Mr Devlin and Mr Lucchitti thought that the development would be clearly seen from a number of vantage points, including Bligh Street, the National Park, the Dog Park and properties to the north of the site. In their opinion the proposal was not characteristic of the area and would have an unacceptable visual impact for the following reasons:

The development will appear as a single building mass when viewed from adjoining properties, the street and public places.

The separation between the blocks and the single storey components were not sufficient to break up the mass of the building.

The elongated form of the development is not compatible with the character of the surrounding residential area, which consists of single detached dwellings scattered amongst trees.

The loss of trees from the site will result in the development being highly visible from the surrounding area.

44 Mr Byrnes considered that the development had an acceptable visual impact, was consistent with the character of the area and met the objectives of the zone for the following reasons:

The proposal would not be viewed as part of the streetscape of either Bligh Street or Meehan Place. The proposal is separated from existing development being set back some 60m from these streets in an elevated position.

The proposed development when viewed from the dog park will present as a single storey building.

The height, bulk and scale of the development, while clearly not detached dwellings, would “fit in” even if it were not the same as existing development.

The retention of trees and proposed landscaping mean that the proposal would be viewed as a building in a landscaped setting in a similar manner to the dwellings in the area.

45 I accept that the development will be visible from the surrounding area and will appear as a town house development. The general character of the area is of two storey dwellings in bushland settings. Although there is an existing medium density development off Bligh Street this does not alter the general character. The scale of the detached houses is relatively large; Mr Lucchitti described them as “dwellings that are generally 10 to 12 m wide about three metres apart”. The proposal is not the same as detached houses. However, the question to be answered is not whether it is the same, as it is clearly not, but whether it is compatible and therefore retains “the scale, amenity and general character of the area”. In answering this question, I am mindful that whether a dwelling is separate or attached is only one component of character, other components being height, width, separation between buildings and landscaping.

46 The development is generally two storeys in three separate buildings. The single storey sections, slight stepping of the buildings, and the different roof forms of metal sheeting and louvred skylights further break up the buildings. The low pitched roof also reduces the overall height of the buildings to below the height limit of 9m. The southern façade expresses the townhouse as separate elements generally 7m in length, which also reduces the overall impression of the length of the building and gives the appearance of contemporary terrace houses, which are of a scale that is compatible with the general character and have an acceptable visual impact. The bulk and scale of the building could have been further reduced if these techniques were used more, particularly separate buildings, single storey elements and changes in the vertical and horizontal plane of the building by stepping it along and down the site with the contours of the land.

47 The retention of trees, particularly to the west and in the riparian zone will ensure that the proposal is screened and appears as a building within a bushland setting. While a number of trees are being removed, particularly from the north and south of the site, those that will be retained on the site, the additional planting and the trees on adjoining land to the north will reinforce and maintain this character. The development would have no greater visual impact than a development of the site with up to 11 detached dwellings of a similar scale and character to that of the existing houses in the area. Views over the development to the tree canopy of the National Park from the Dog Park and from Bligh Street and the National Park to the tree canopy to the north of the site will be retained.

48 The site is essentially separated from other development, including the existing medium density development. It will be read as a backdrop to development in Bligh Street and Meehan Place, not as part of this streetscape. For the reasons I have already discussed, it meets the objective of a residential environment “where the streetscape is characterised by detached 1 and 2 storey residential buildings”.

49 The separation of the site and the zoning (and proposed zoning in the draft LEP) of adjoining undeveloped land means that there is unlikely to be a cumulative impact from the proposal. It therefore satisfies the objective that “the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house development”.

Residential Amenity

50 The main concern raised by Mr Devlin, Mr Lucchitti and the residents was the impact that the proposed development would have on the privacy of the ten dwelling to the south and the overshadowing to the rear of four of these properties. In Mr Devlin’s opinion, while the site was not technically an internal allotment, it had the characteristics of one as front yards of the development would overlook the backyards of the adjoining houses. The development would be orientated towards the south to take advantage of the views of the National Park and due to the slope of the land it would be elevated above these properties and would overlook them. The pedestrian path near these properties would also enable overlooking and loss of privacy.

51 Mr Byrnes said that the separation between the proposal and the adjoining houses was about 20-27m, which was sufficient distance to minimise any privacy impacts. He referred to the AMCORD standard of 12m separation. The elevated position meant that the sight lines from the proposal would be over the adjoining properties and the existing trees and proposed landscaping would screen these properties. Mr Byrnes noted that that the living areas of the existing properties were generally orientated towards the views of the National Park and that the rear gardens were largely occupied by swimming pools with little landscaping. He said that the exposed nature of these areas currently resulted in a large degree of overlooking from adjoining properties.

52 In relation to overshadowing, the diagrams submitted by the applicant indicate that the rear of four dwellings will be overshadowed on 21 June up until approximately 12 noon. The evidence of Mr Devlin and Mr Lucchitti was that this was unsatisfactory and that while the areas are already overshadowed by trees the shadow caste by trees is different to that of buildings as it is filtered. Mr Byrnes evidence was that the overshadowing of the trees should be considered as well as the overshadowing that would result from the retaining walls and other structures in the adjoining houses which were not indicated on the shadow diagrams. Even if these factors were not taken into account, in Mr Byrnes opinion the development had an acceptable overshadowing impact as only four of the ten properties were impacted and the impact was limited up to 12 noon with no increase in overshadowing after this time.

53 The residents also raised concerns about the impact of increased traffic in Bligh Street and Meehan Place that would result from the development. They were particularly concerned about the safety of cars coming down Bligh Street due to speed and visibility.

54 Mr Waters was concerned about the safety of cars using the right of way and the potential conflict with cars coming up and down Bligh St and accessing the development. He was also raised the issue of the noise of cars using the driveway next to his property and the removal of the Banksia tree (Tree No 165A) from his property as a result of the proximity of the driveway and pedestrian path.

55 In my opinion, the proposed development will have some impact on the residential amenity of the adjoining properties however this impact is acceptable. The enjoyment of the residents, who currently use the site as an extension of their backyards and view it as open space, will be reduced. However, the site is in private ownership and the proposed development is permissible. It is therefore reasonable that the site will be developed and that instead of these properties adjoining an area of bushland, they will adjoin some form of residential development.

56 The question is whether this development has a reasonable impact on the amenity of these properties. In relation to privacy, I accept Mr Bynes evidence that the elevated position, the landscaping and the degree of separation will minimise any privacy impacts. The overshadowing of the properties is also reasonable. While I do not accept that the existing overshadowing of the trees should be considered, the overshadowing that results from the buildings themselves is acceptable. The open space of the properties affected are generally overshadowed by existing structures within their own properties such as retaining walls and the overshadowing impact does not occur after 12 noon.

57 The development provides private open space to the north of the town houses. However, this is below natural ground level and the level of the Dog Park. These area are therefore likely to be over shadowed by the proposed fence between the sites and the change in level. No detail was provided about the extent of overshadowing and it was not pressed as an issue by council. While I consider this to be a negative feature of the proposal, I do not consider it to be sufficient reason to refuse the application.

58 The evidence of Mr Marshall and Mr Anderson did not raise traffic safety or the potential conflict for users of the right of way as an issue. Bligh Street and Meehan Place are not through roads and carry only local traffic. The development is not likely to generate traffic that would impact on safety and is reasonable.

59 In Mr Byrne’s opinion, the location of the driveway would not impact on Mr Waters as it is set down below his property and therefore noise would be minimised. He suggested that, if possible, the driveway should be moved away from the property to retain the Banksia. This would require further approval from DIPNR as the driveway would then encroach slightly into the Riparian Zone. The applicant has agreed to a condition that the driveway be moved subject to DIPNR’s approval which would retain the Banksia. This is discussed further under conditions.

Suitability of the site for development

60 Mr Green and Mrs Kelly agreed that the site had a number of environmental constraints including access, slope, vegetation, bush fire hazard and the watercourses. As well as constraints imposed by the relationship to existing development and residential amenity. They disagreed on whether the development was an appropriate response to these constraints within the context of the planning controls. Mr Green’s submission was that the proposal had not been designed in response to these constraints but was “based on a number of fundamental false misconception”. In his submission the proposal had been amended on a number of occasions to address these constraints but that the proposal still did not satisfy the arborial and landscape issues with any degree of certainty. In particular, the number of trees that are likely to be removed from the site and the impact on the vegetative corridor in Mr Green’s submission did not satisfy cl 30 and cl 32 of LEP 2000

61 Mrs Kelly’s submission was that the development had addressed the constraints of the site. In particular, any development of the site would need to obtain access from Bligh Street. The development retained the required Riparian Zone which meant that the eastern portion of the site would be retained as bushland. The proposal was setback from the south to maximize the separation between it and the existing residences and to retain the trees along the southern boundary as a vegetative link. The car park being underground enabled less hard driveways and hard surfaces at ground level and maximised the opportunities for landscaping. In her submission the proposal satisfied the requirements of LEP 2000 and achieved an appropriate balance between development of the site and satisfying environmental constraints.

62 I accept Mr Green’s submission that the proposed development should have been designed from the outset to recognise the environmental sensitivity of the site. However, I do not accept that this is fatal to the application. The lengthy process and the number of amendments have resulted in development, which adequately addresses these constraints. While the development does have negative features these are not sufficient to warrant refusal of the application, particularly as some of these negative features would result from an alternate development of the site as they are inherent in responding to the site constraints. In particular, the access to the site off Bligh Street is now a constraint for whatever development is to occur on the site.

63 The site that was zoned for residential use in 1978 was essentially a land locked site and the only way currently to obtain access is by amalgamating it with another allotment. The only feasible access now is via No 59 Bligh Street. A more logical access would be off Helena Street but this would require access to be through the Helena Street Reserve and either the National Park or the RTA land used as a Dog Park. While this would make good planning sense, it is not reasonable to impose the logistics of achieving this onto a private owner and I have no evidence to suggest that council has or would assist in pursuing this option. Access to the site, the constraints it imposes and the impacts are therefore the same for any development of the site.

64 Inherent in the council’s case was the opinion that the development of the site for single dwellings would be more appropriate and consistent with the proposed re zoning of the site under the draft LEP. Under the current controls 11 houses would be permissible on the site and under the draft LEP this would be reduced to 9 houses. I am not convinced that single dwelling houses would have less impact than a town house proposal. The size and lack of separation between the town houses results in a compact floor plate, which combined with the basement car park, means less of the site is covered with building or hard surfaces for driveways and paths. While the basement does necessitate excavation, for the reasons discussed above this is acceptable. The town house development also enables the Riparian Zone and the vegetative link to be common property and the ongoing maintenance to be a shared responsibility of the development. Detached houses with separate driveways and entry off an access road would not have these advantages, particularly if they were of a similar bulk and scale to those which already exist in the area.

Conditions

65 The main area of disagreement on conditions was in relation to whether the consent should be a deferred commencement. The applicant agreed to a condition to move the driveway further from the rear of No 61 Bligh Street to retain the Banksia tree (Tree No 165A). This may also achieve the retention of another tree (Tree No 42), which is identified as being significant. The movement of the drive way would encroach into the Riparian Zone and therefore would require the approval of DIPNR. In council’s opinion, if DIPNR does not agree to the change, the application should fail and therefore it should be a deferred commencement condition. In the applicant’s opinion the change is not fundamental to the application. I accept the applicant’s submission as while the retention of the Banksia is desirable, particularly as it is on an adjoining property, any development of the site that provides a drive way and pedestrian path would need to satisfy the same constraints and be located within the Riparian Zone and the boundary of No 61. It is not reasonable to prevent development of the site by requiring the retention of one tree.

66 The parties disagreed on whether a visitor car space should be deleted. The purpose of this condition was to minimise construction near the angophora tree (Tree No 166) on No. 59 Bligh Street. I accept that this can be deleted as the development provides visitor parking in excess of the 2.6 spaces required by the DCP. Even with the deletion of this space there will still be two visitor parking spaces off Bligh Street and two within the basement car park. This is more than the DCP requires and is more than adequate to meet the needs for a development of 13 townhouses in a street that does not appear to have a shortage of parking.

67 Mr Green did not oppose the other conditions and changes proposed by the applicant but submitted that these did not satisfy the fundamental problems with the development. For the reasons outlined above, I have not accepted this submission.

68 I have made minor changes to some conditions which do not change their meaning.

Orders

1. The appeal is upheld.

2. Development application No 02/2165 for the demolition of the existing house and the construction of 13 townhouses at lot 2 DP605791 (20R Helena Street) and lot 121 DP 228631 (59 Bligh Street), Kirrawee, in accordance with the plans at Annexure “A” is determined by the grant of development consent subject to the conditions in Annexure “B”.

____________________

Annelise Tuor

Commissioner of the Court

Approved Plans

Annexure A

Oceanic Developments Australia Pty Limited

-v-

Sutherland Shire Council

Conditions of development consent

Annexure B

Oceanic Developments Australia Pty Limited

-v-

Sutherland Shire Council

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

1. Approved Plans and Documents

Note 1:
Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.

Note 2:
Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Note 3:

a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA

b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.

(c) Notification of the appointment of an Arborist and a letter of acceptance from the Arborist.

(d) Notification of the appointment of a Geotechnical Engineer and a letter of acceptance from the Geotechnical Engineer.

(e) Notification of the appointment of an Ecologist and a letter of acceptance from the Ecologist.

2. 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.

A. Compliance with the Building Code of Australia
The development must be carried out in accordance with the provisions of the Building Code of Australia.

B. Residential building work

Principal Certifying

Authority

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

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.

C. Details to be Provided to Council with the Notice of Commencement.

3. Requirements of IDA Approval Authorities

The development shall be conducted in accordance with all conditions of approval of the following Approval Authorities under Section 91A of the Environmental Planning and Assessment Act 1979:

DIPNR

A copy of the requirements of the approval Authority(s) is attached to this development consent.

NB:

DSNR

DLWC

Accordingly, any reference in the attached approval to DSNR and DLWC is to be read as a reference to DIPNR.

Bonds and Contributions

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

4. 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 $25,000 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.)

5. Construction Performance Security

Before the issue of a Construction Certificate the applicant shall provide security to the value of $5,000 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.

6. Landscape Security (Effective Landscaping)

Before the issue of a Construction Certificate the applicant shall provide security to the Council to the value of $50,000 for the payment of the cost of providing effective Tree protection and landscaping and maintenance for a period of 6 months from the date of the occupation certificate.

The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council. This will be retained by Council for a period of 6 months following completion of work to enable the monitoring of the maintenance of the tree protection and landscape work. An application for refund of this bond or security may be made to Council following the expiration of this period.

7. 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.

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

A monetary contribution of $176,895 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 $154,612 (A/c No. 2944LLA7GYMCS94)

District reserve embellishment $4,593 (A/c No. 2944DRA7GYMCS94)

Local reserve embellishment $17,690 (A/c No. 2944LRA7GYMCS94)

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 44 new bedrooms with a concession for 2 existing allotments (6.28 bedrooms).

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 shall be made prior to the issue of the Subdivision Certificate in the case of development applications involving subdivision or alternatively prior to the issue of a Occupation Certificate or submission of the Completion Report in the case of development applications involving building work.

The payment of monetary contributions may be deferred 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.
NOTE: Council has resolved that in relation to Section 94 Contributions for Open Space that all applications from the date that the draft Sutherland Shire Contribution Plan - Open Space 2000 was publicly exhibited (28/11/2000), to allow payments of the Section 94 Contributions for Open Space to be in accordance with the plan applying at the time of payment.

9. Community Facilities, Established Area of Shire

A monetary contribution of $11,979 shall be made for the cost of providing community facilities. (Account No. TR29447763SUTCS94)

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Sutherland Shire Contributions Plan - Community Facilities in the Established Area of the Shire, 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 13 very large new dwellings, with a concession for 2 existing allotments.

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.

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.

Design Conditions

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

10. Design Changes Required

To reduce the environmental and/or ecological impact of the development proposal, the following design changes shall be implemented:

Details of these design changes shall accompany the Construction Certificate.

11. Detailed Landscape Plan

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 including:

Tree and shrub screen planting shall be provided along the site boundaries to enhance the privacy of the adjoining properties. This planting shall be of a type that will achieve a minimum height of 1.8m.

Identification of native species to be provided for ground cover (height < 1m), lower canopy (height 1 to 4m) and upper canopy (height 4m+) so as to maintain and enhance the wildlife link;
Identification of a diversity of native species that are faster growing trees and other vegetation, provided to enhance the wildlife link in the short term;
Identification of measures to protect the rocky habitat along the southern boundary and other areas; and
Any special requirements for weed control.

The Ecologist is to inspect the site and issue a notice that all requirements have been met prior to the issue of an occupation certificate.

i) A Vegetation Management Plan is to be prepared as part of the detailed landscape plan containing:

A schedule of local native plant species suitable for plantings in the riparian zones;

A schedule of local native plant species suitable for plantings along the southern wildlife link/tree line;

Measures to maintain rocky habitat;

A weed control program;

An appropriate monitoring and replanting program.

Certification from an Accredited Certifier, Ecologist and Arborist to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the construction certificate.

12. Tree Management Plan

A detailed Tree Management Plan shall be prepared by a qualified arborist detailing which trees are to be removed and the protective measures that will be put in place during construction so as to facilitate the long term survival of the trees identified to be retained. These protective measures are to be in accordance with the requirements of Councils Landscape DCP and shall include:

A final report by the Arborist is to be prepared recommending to Sutherland Shire Council the full or partial return of the bond money prior to the release of the Landscape Security as set out at Condition 6.

On completion of the bulk earthworks and prior to the construction of the walls to the basement carpark, the Geotechnical Engineer and the Arborist shall inspect the site to determine if a passive irrigation system is required to the southern tree line, if a passive irrigation system is required it will be designed by the Geotechnical Engineer in consultation with the Arborist in accordance with Section 4 of the Joint Statement, Land and Environment Court Proceedings No 10214 of 2003, 20R Helena Street Kirrawee – Conference between Geotechnical Experts, signed by Mr Bruce Walker of Jeffery and Katauskas Pty Ltd and Mr Ross Best of Coffey Geosciences Pty Ltd on 24th September 2003.

The Geotechnical Engineer is to inspect the site and issue a notice that all requirements have been met prior to the issue of an occupation certificate.

Certification from an Accredited Certifier and arborist to the effect that the detailed tree management plan has been prepared having regard to these requirements shall be submitted with the construction certificate.

13. Design and Construction of Works in Public Areas

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":

a) A temporary concrete footpath crossing for construction vehicle access.
b) Stormwater drainage.
c) Demolition of existing kerb and gutter at the proposed point of access and replacement with a concrete layback crossing.
d) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter.
e) Removal of all redundant footpath crossings and reinstatement in accordance with Council's requirements.
f) Construction of 150mm barrier type kerb and gutter across the full frontage of the site where required,
g) A layback crossing at the access point.
h) The footpath crossing in Bligh Street to be 6.5m wide.
i) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required.
j) Construction of a footpath crossing to the levels issued by the Council.
k) 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.

Note:
Council's Engineering Division charges a fee for its services. A quotation may be obtained by contacting the Design Branch Manager on telephone 97100247.

14. Site Management Plan

A Construction and Site Management Plan in accordance with the principals of the Revised Site Management Plan dated September 2003 prepared by Projectworx Pty Limited 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:

a) 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,

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

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

d) 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,

e) 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.

f) The requirements of any site specific Development Control Plan that may affect this development site.

g) The footpath and road reserve shall not be used for construction purposes including site deliveries.

h) The footpath area shall not be used for vehicle parking.

i) Permission is to be sought from the adjoining landowners at the north west boundary of the site for construction access to Helena Street. Subject to that approval being obtained in a reasonable time and on reasonable conditions, the predominant construction access and egress is to be by way of Helena Street. All reasonable endeavours are to be made to obtain permission for construction access/egress as noted. Should such approval not be obtained, access and egress is to be via Bligh Street.

j) Rigid trucks without trailers are to be used to transport soil from the site. When possible, without the need for excessive reversing movements, trucks will enter and exit the site via Helena Street. At other times, only as necessary, trucks will enter and exit via Bligh Street.

Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:

i. Pump concrete from within a public road reserve or laneway,
ii. Stand a mobile crane within the public road reserve or laneway,
iii. Use part of Council's road/footpath area,
iv. Pump stormwater from the site to Council's stormwater drains, or
v. Store waste containers, skip, bins, and/or building materials on part of Council's footpath or roadway

15. Soil and Water Management

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:

71 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.

16. Access Application

17. Road Opening Approval Required

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.

18. 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".

72 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.

19. Sydney Water - Notice of Requirements

20. 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.

21. Internal driveway profile

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;
c) Provide a maximum grade of 5% for the first 3 metres inside the property boundary; and
d) Comply with AS2890.1(1993) and AS2890.2(2002) in relation to the design of vehicular access, parking and general manoeuvring. The design vehicle for AS 2840.2(2002) is the small rigid vehicle

22. Drainage Design - General

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" and "On-Site Stormwater Detention Policy and Technical Specification".

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. This shall include the provision of rainwater tanks.

23. Drainage Design - Detailed Requirements

A detailed drainage design shall be prepared in accordance with "Australian Rainfall and Runoff (1987)", Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification.

a) A detailed drainage design supported by a catchment area plan and drainage calculations (including a Hydraulic Grade Line Analysis).

b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.

c) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the drainage line.

d) Water from pathways and access drives shall be prevented from entering the road reserve as surface flow. This can be achieved by constructing a box drain at the boundary equipped with a 300mm wide grate and frame to collect the flow or directing the flow to a sag pit within the property.

e) The rate of discharge of stormwater from the site to a drainage system under Council's control shall be controlled so that it does not exceed the pre-development rate of discharge. Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details.

f) The design floor level, including the level of any opening in the wall adjacent to the drainage easement, shall be set a minimum of 500 mm above the level of the overland flow of stormwater generated by a storm of design recurrence interval of 1 in 100 years, flowing along the overland escape route within the drainage easement within or adjacent to the site. Specific certification from a designer to this effect shall be incorporated in the submitted drainage design/details.

g) A drainage depression shall be provided for the full width and length of the drainage easement that facilitates the overland escape flow of stormwater. The escape route shall be designed to have the capacity to carry the difference between a 1 in 100 year flow and half the flow in the pipeline within the easement. Specific certification shall be provided by the designer to this effect as part of the submitted drainage design / details.

h) Details of the top water surface level of the 1in 100 year stormwater surcharge flows through No 59 Bligh Street.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

24. Design of structures adjoining drainage easements

The walls of the dwelling / pool or of any structure adjoining the easement shall be designed to withstand all necessary forces should excavation be required within the easement down to the existing pipe invert levels. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.

25. Footing design adjoining easements

All footings within 2m of the drainage easement shall be designed in such a manner that they are supported by foundations set at a minimum of 300mm below pipe invert levels or, alternatively, founded on sound rock. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.

26. Basement car park design

The basement carpark shall be designed in accordance with AS 2890 and shall incorporate the following:

a) 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. Where adaptable housing garages are provided this height shall be 2.5m.

27. Parking areas and access

All vehicular access, parking and manoeuvrability including loading areas for the proposed development shall be designed and constructed to comply with AS2890.1 - 1993.

The following specific requirements shall be incorporated into the constructed works:

28. External Lighting - (Amenity)

29. Building Ventilation

To ensure that adequate provision is made for ventilation of the building mechanical and / or natural ventilation systems shall be provided. These shall be designed, in accordance with the provisions of:

30. Energy Efficiency - Where NatHER Certificate is provided

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:

PRE-COMMENCEMENT CONDITIONS

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

31. Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:

32. Pre-Commencement Inspection

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.

33. Signs to be Erected on Building and Demolition Sites

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:

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.

a) 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.

34. Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.

35. 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.

36. Toilet Facilities

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.

37. Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:

Note:

The formal approval of the Workcover Authority is required prior to commencement of work where the area of the sheeting or product exceeds 200 square metres.

38. 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 damage during excavation. The extent of all affected root systems shall be identified on the ground and "pegged" by an experienced arborist prior to the commencement of work.

39. Protection of Public Places

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

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

b) 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.

Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

40. Noise control during construction and demolition

To minimise the impact on the surrounding environment:

a) 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 measured at the nearest affected premises.

b) 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.

41. Vibration damage

42. Maintenance of Erosion Control Measures

43. Run-off and Erosion Controls

Run-off and erosion controls shall be installed prior to commencement of any site works and shall be continuously maintained during the period of construction or demolition. These control measures shall generally be in accordance with the requirements of Council's Environmental Site Management Development Control Plan and shall specifically address the following matters:

44. Construction of Public Frontage Works

The following road frontage works shall be constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments":

45. Stockpiling of materials during construction

46. Vibration Control - Residential

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

47. 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:

accordance with Council's "Urban Street Tree Planting Guide".

48. Bushfire condition Category B sites (Ember & Radiant Heat Control)

The following requirements have been imposed to reduce the risk of ignition to a building as a result of the passing of a bushfire front.

Decks
Bearers and joists of a deck shall be constructed of non-combustible material.

No combustible materials shall be stored below the deck.

Windows

All external glazing, fixed or openable, that faces towards the bushfire hazard must be either:

a) glazed in toughened safety glass to a minimum thickness of 5 mm, within a non combustible frame; or,
b) protected by screens with corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8 mm.

To prevent entry of burning debris through open windows, the openable part of a window, including louvres, shall be screened with corrosion resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm.

PVC window frames shall not be permissible.

External leadlight panels that face the bushfire hazard shall not be permitted.

Doors
Doors shall be fitted with weather strips or draft excluders to prevent penetration or build up of burning debris beneath the door.

The openable part of all external doors shall be fitted with a tight-fitting screen door with corrosion resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm.

All external glazing, fixed or openable, that faces towards the bushfire hazard must be either:

a) glazed in toughened safety glass to a minimum thickness of 5 mm, within a non combustible frame; or,

b) protected by screens with corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8 mm.

External leadlight panels that face the bush fire hazard are not permitted.

Vents & Weepholes
Openings including Vents and weepholes shall be protected with spark guards made from corrosion-resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm

Eaves
All eaves shall be enclosed with the fascia sealed.

Roof Cladding
Roof claddings shall be a suitable non-combustible material (such as tile, metal sheet roofing).

Timber shakes and shingles are not acceptable.

The roof shall be fully sarked, including the ridge, with sarking located directly below the battens. All sarking shall have a flammability index of not more than 5.

The openings at the exposed ends and sides of any metal sheet roofing shall be sealed. Similarly any other openings affording external access to the roof cavity shall be sealed.

Roof lights
Roof light penetrations and associated shafts through the roof space shall be sealed with a non-combustible sleeve or lining.

A roof light may consist of thermoplastic sheets in a metal frame, provided the diffuser at ceiling level is of wired or toughened glass in a metal frame

Openings in ventilated roof lights shall be provided with corrosion resistant steel or bronze mesh with a maximum aperture size of 1.8mm.

Roof Ventilators
All components of roof ventilators, including rotary ventilators, shall be of non-combustible material and have ventilation openings protected by corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8mm.

Floors
A suspended timber floor with bearer and / or joist is less than 600mm above the ground shall be fully enclosed for the entire sub-floor area with masonry or such other approved materials to secure the area against the entry of wind blown embers.

( Note : This does not relate to decks and the like).
Supporting Posts or Columns

The supporting posts or columns shall be any one, or any combination of the following:

a) Non-combustible
b) Timber protected by a metal sheathing, minimum 0.6mm thick, extended to at least 400mm above the finished ground level.
Note : The metal sheath shall be suitably protected against rusting, eg by galvanising.
c) Timber mounted on galvanised metal shoes with a clearance of not less than 100mm from the finished ground level.

External Building Materials
Combustible materials used on the exterior of the building should be eliminated or minimised

Walls
Where the external skin of the wall is not masonry or concrete, the wall framing shall incorporate either:
a) breather-type sarking, complying with flammability index of not more than 5, installed immediately behind the external cladding; or
b) an approved insulation material.

Where the external wall cladding is not of non-combustible material, the cladding shall be protected for not less than 400mm above the adjacent finished ground level. The protection shall be non-combustible.

Timber wall cladding shall be smooth faced. No rough sawn timber cladding is permitted.

No PVC external cladding is permitted.

Service Pipes

73 Bushfire Hazard Reduction

Removal of the majority of the shrub layer. Some isolated shrubs can be retained, as long as they do not form a continuous path across the asset protection zone/ inner fire protection zone to the dwelling.
Planting of bushfire resistant species.
Trees can be retained in the asset protection zone/inner fire protection zone, where their canopies do not interlock. However, trees located in close proximity to the dwelling should be trimmed so that the branches do not touch, or extend over the dwelling.
Well maintained lawn or other ground cover.
Ongoing removal of litter (bark, branches, leaves) from the ground.

POST CONSTRUCTION CONDITIONS

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

49. Section 73 Compliance Certificate

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 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.

Advice from Sydney Water:
An application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water web site at or by telephone 13 20 92.

Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water / sewer extensions can be time consuming and may impact on other services as well as building, driveway or landscaping design.

50. Works As Executed Information

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

a) 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.

b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.
c) All rights-of-way or positive covenants required by conditions of this development consent have been provided.

51. Works As Executed Drawings

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

a) 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".
b) The construction of the drainage system for the proposed development has been carried out generally in accordance with the requirements of the approved stormwater drainage plans, Council's stormwater management policy and guidelines and Council's On-site Detention Policy and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Subdivision / Occupation Certificate.

i. Need for Certification

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:

52. Set out of Building

Certificate from a Registered Surveyor certifying that the building has been set-out in accordance with the requirements of the development consent regarding location and levels.

53. Mechanical Ventilation

Certification from a suitably qualified Mechanical Engineer certifying that all work associated with the installation of the mechanical ventilation systems has been carried out in accordance with the conditions of the development consent.

54. General Compliance

Certification from the Principle Certifying Authority certifying that all works have been completed and comply with the approved plans, conditions and specifications.

55. Works in Roadway

A Compliance Certificate from an Accredited Certifier certifying that all works undertaken in the road reserve have been completed in accordance with the conditions of the Road Opening Approval.

56. Energy Efficiency

Certification shall be provided by an NatHERs accredited certifier verifying that the development has attained the energy efficiency rating requirements specified in this development consent and detailing the type and efficiency rating of any energy efficiency devices installed in the development.

57. Completion of Landscaping

Certification shall be provided from an Accredited Certifier, Ecologist, Geotechnical Engineer and Arborist prior to occupation of the development verifying that the landscape works and tree preservation works (including fencing), pruning, and surgery has been completed in accordance with the detailed landscape plan and tree management plan approved in conjunction with the Construction Certificate.

58. Prior to Occupation or Use of the Development

The Development shall not be occupied or used until:
a) A Final Occupation Certificate and Completion Report is issued and provided to Council for the development, or
b) 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
c) An Interim Occupation Certificate and Completion Report is issued and provided to Council for the development.

59. Completion Report

The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information. This report shall accompany the Final / Interim Occupation Certificate or shall be submitted prior to occupation.
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 Principal Certifying Authority 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 Principal Certifying Authority (with Accreditation Number and Accreditation Body) making the report.
i) Date of the report.

60. Final site Inspection

Prior to the issue of the 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.

Note: An inspection fee of $145.00 applies (Account No. 1721550).

61. Endorsement of Linen Plans of Subdivision by Council

To facilitate the issue of the Plan of Subdivision, following completion of the requirements detailed in the conditions of this Development Consent and the issue of the Subdivision Certificate by Council, a film and eight (8) paper copies of the Plan of Subdivision shall be submitted to Council together with the Instrument (in duplicate) under Section 88B of the Conveyancing Act, where required for ultimate lodgement at the Land Titles Office.

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

62. Common Property

To ensure that the car parking area satisfies the demands of the development the nominated visitor carparking spaces shall be made available as common property in any future strata subdivision.

63. External Lighting

All external lights shall be operated and maintained in accordance with the Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on the amenity of residents of the surrounding area nor to motorists on nearby roads.

64. Noise Control - Car Park Security Grills

To minimise the impact on the amenity of surrounding residents, all sound producing plant, equipment, machinery or fittings within or forming part of the proposed security door fitted to the car parking area entrance shall be acoustically attenuated so that the noise emitted does not exceed an Leq sound pressure level of 5dB(A) above the ambient background noise level in any octave band from 31.5Hz to 8kHz centre frequencies inclusive, at the boundary of the subject site or on any balcony of the premises itself. Not withstanding the above, 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.
Details of the acoustic attenuation required to comply with this condition, shall be prepared by a practicing acoustic engineer and shall accompany the Construction Certificate.

Condition in Relation to Environmental Covenants

65. To ensure ongoing maintenance of the riparian zone on the site and of the vegetation of the southern treeline along the southern edge of the site, covenants shall be created pursuant to section 88B of the Conveyancing Act 1919 in terms set out in Annexure “A” to this consent. If the design changes contemplated in condition 10(e) proceed, the plans accompanying Annexure A will be amended accordingly. The covenants are in addition to the requirements of DIPNR under condition 3 as attached to and forming part of the conditions of this consent.

CITATION:	Oceanic Developments Australia Pty Limited v Sutherland Shire Council [2003] NSWLEC 345
PARTIES:	APPLICANT Oceanic Developments Australia Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10214 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- for a medium density housing development loss of trees and vegetative corridor character of the area and visual impact Impact on residential amenity
LEGISLATION CITED:	Rivers and Foreshores Improvement Act 1948 Sutherland Shire Local Environmental Plan 2000 Sutherland Shire Draft Local Environmental Plan 2003 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	25/9/03 - 30/9/03 and 02/10/03
DATE OF JUDGMENT:	12/17/2003
LEGAL REPRESENTATIVES:	APPLICANT Mrs Josephine Kelly, barrister instructed by Ms Rebecca Mohr of Deacons RESPONDENT Mr Gary Green, solicitor instructed by Ms Natasha Hishmen of Pike Pike & Fenwick