Pamada Cammeray No. 8 Pty Ltd v North Sydney Council
[2013] NSWLEC 1104
•20 June 2013
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Pamada Cammeray No. 8 Pty Ltd v North Sydney Council [2013] NSWLEC 1104 Hearing dates: 20 June 2013 Decision date: 20 June 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions
Catchwords: MODIFICATION APPLICATION; minor alterations Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001Category: Principal judgment Parties: Pamada Cammeray No. 8 Pty Ltd (Applicant)
North Sydney Council (Respondent)Representation: Applicant: Mr A Perkins (Solicitor)
Respondent: Mr J.P Merlino (Solicitor)
Applicant: Colin Biggers & Paisley
Respondent: HWL Ebsworth Lawyers
File Number(s): 10097 of 2013
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: In 2010 the Court gave conditional consent (D305/05) to development application DA 305/2005 for an apartment building and other works at 2 Vale Street Cammeray. The decision is given in Simpson v North Sydney Council [2010] NSWLEC1211.
Amongst other things, the deferred commencement conditions required the parties to enter into a Planning Agreement to dedicate land to council for Public Open Space and to alter the plans that effectively reflected the Court's findings. These conditions have been met.
This appeal before the Court is against North Sydney Council's refusal of s 96 Development Application D305/05/3 which seeks to modify consent D305/05. The appeal is made under sections 96AA and 97AA of the Environmental Planning and Assessment Act 1979 (the Act).
The proposed modifications are primarily changes to the building envelope of the apartment block in order to accommodate changes to the design and internal layout of the units as well as changes to the size and configuration of the two basement levels.
In summary, the proposed modifications are:
- Lowering of basement level B2 by 550mm; minor reconfiguration of parking, storage space, sprinkler water and detention tanks; and a net increase in approximately 24m2 in floor space/excavated area;
- Reconfiguration of parking and a small net increase in excavation at basement level B1;
- Extension of the northern elevation northwards by up to 800mm and minor additional sideways projections in some sections of residential levels 1,2 and 3 due to the reconfiguration of unit layout and location of balconies (an increase of about 20m2); and
- Minor inconsequential changes to the layout of the roof garden/ entry level with no increase in height of the building/ structures.
The applicant initially sought the deletion or modification of conditions of consent pertaining to the existing dwelling and a new pool, however those proposed amendments have been withdrawn. The only proposed change in this regard is to include a condition enabling the issue of separate occupation certificates for the apartment building and the dwelling. Council does not oppose this change to the application. Similarly, the Court has no objection to this modification of the application.
Council raises no merit contentions in relation to the modification application and accepts that the proposed changes are resolvable by imposing or modifying conditions of consent.
Council's Executive Planner, Mr Ian Pickles prepared a Position Statement that essentially summarises his report to council (included in council's bundle of documents). Mr Pickles considers that when assessed against the development approved by the Court, the modifications are minor and acceptable in terms of the relevant planning controls in North Sydney Local Environmental Plan 2001 (NSLEP). He notes the absence of any measurable impacts on nearby properties, bushland, or the heritage significance of the existing dwelling on the site. There will be no reduction in landscaped area, no increase in building height, and no removal of any additional trees. In his view, the relocation/ redesign of the approved balconies on the eastern side of the apartment building is likely to reduce the potential privacy impact on, and improve the amenity of, the neighbouring units to the east at 12 Cambridge Street.
The principal reason for council's refusal appears to be that the modifications are not in the interest of the community as a consequence of issues raised by a number of nearby residents. The matters raised in submissions include:
- Lowering of bushfire protection obligations by a reduction in the width of the Asset Protection Zone (APZ) and a possible consequential exposure of council to liability;
- Increases in building height, envelope, excavation and building form, especially on the northern elevation, which will increase the negative impacts of the development on the amenity and enjoyment of residents;
- Loss of bushland and trees; and
- The goal posts fixed by the court should be complied with.
The hearing commenced on site as a number of residents wished to make statements in support of their submissions. This provided the applicant with an opportunity to show the residents the extent of the changes against the approved building footprint and floor plans.
While some residents were somewhat satisfied that the proposed changes were indeed minor, a number of residents remained fundamentally opposed to the approved development and to ongoing, incremental changes. Several residents wanted certainty that the applicant would not continue to lodge development applications for further changes to the approved development.
Consideration and orders
Pursuant to sections 96(1A), 96AA, and 79C of the Act, I am satisfied on the evidence before me that:
- While there are some minor breaches of the building height plane control in cl 18 NSLEP, the proposed modifications are of minimal environmental impact in that slight changes in projection will have no appreciable impact on the amenity of adjoining properties, there will be no change to landscaped area, no additional tree removal, and no changed to the proposed APZs;
- The proposed development as modified is essentially the same development for which consent was originally granted;
- The application has been appropriately notified; and
- I have considered the submissions made by the resident objectors.
With respect to the written submissions made by the residents, I have had regard to pages 16 and 17 of the 'Report of Ian Pickles, Executive Planner' made to council on 13/08/2012 in which he considers each of the submissions, and I agree with his findings.
In regards to the oral submissions made on site, the Environmental Planning and Assessment Act 1979 provides the statutory basis for the making of development applications as well as the appeal process, should a development application be refused. The Court has no power to prevent anyone from lodging a development application with the appropriate consent authority.
The council prepared draft without prejudice conditions of consent that reflect the modifications as well as the amended application retaining the conditions pertaining to the existing dwelling. The applicant agrees with the conditions. I have considered the conditions and find them appropriate.
On the evidence before me, I find there is no reason to refuse the application. Therefore the Orders of the Court are:
(1) Appeal 10097 of 2013 is upheld.
(2) The s 96 application D305/05/3 to modify development consent DA 305/2005 is approved subject to the conditions in Annexure A.
(3) The exhibits other than exhibit 2 are retained.
____________________________
Judy Fakes
Commissioner of the Court
ANNEXURE A
CONDITIONS OF CONSENT TO SECTION 96 APPLICATION 305/05/3;
NO 2 VALE STREET, CAMMERAY
To delete conditions A1, A2, C2, C13, C29, G3, G4, G5, G6, G8, G9, G10, G11, G12, G13, G15 and G16, G17 and H2 of the consent and insert in lieu thereof the following new conditions, namely:
Development in accordance with Plans
1. J1
A1. The development being carried out in accordance with the plans submitted to comply with condition AA2 (schedule 2), namely:
Drawing / plan no.
Issue/ revision no.
Dated
Date received by Council
Drawn by
Architectural plans
JPR Architects P/L
DA 102 and DA 200
H
24/9/2010
13/10/2010
DA 201 to DA 204
G
24/9/2010
13/10/2010
DA 205
J
24/9/2010
13/10/2010
DA 206
K
24/9/2010
13/10/2010
DA 210 to DA 212
J
24/9/2010
13/10/2010
DA 220
G
24/9/2010
13/10/2010
DA 221 and DA 222
E
24/9/2010
13/10/2010
DA 223
F
24/9/2010
13/10/2010
DA 300
B
24/9/2010
13/10/2010
DA 301
D
24/9/2010
13/10/2010
DA 310 and DA 311
A
24/9/2010
13/10/2010
DA 500 and DA 501
G
24/9/2010
13/10/2010
DA 502
F
24/9/2010
13/10/2010
DA 503
G
24/9/2010
13/10/2010
DA 600
D
24/9/2010
13/10/2010
DA 601
C
24/9/2010
13/10/2010
DA 602 and DA 603
B
24/9/2010
13/10/2010
Landscape plans & plant list
Umbaco Landscape Architects P/L
SK 01
H
20/9/2010
13/10/2010
SK 02
G
20/9/2010
13/10/2010
SK 03
G
30/9/2010
13/10/2010
SK 05
H
30/9/2010
13/10/2010
SK 06
G
20/9/2010
13/10/2010
SK 07
G
23/9/2010
13/10/2010
Stormwater drainage, sedimentation & fire system plans
H-DA-00, 01, 02 and 03,
C
24/9/2010
13/10/2010
ITM Design P/L
F-01 to F-07
C
24/9/2010
13/10/2010
Community title subdivision plans
Sheets 1-4,
Surveyor ref: 28201/31532CT
D
23/9/2010
13/10/2013
Surveyor ref: 28201/31532CT
except as modified by the following plans and drawings:
Drawing / plan no.
Issue/revision no.
Dated
Drawn by
Architectural drawings
DA 100
A
19/11/2011
Geoform Design Architects
DA 102
I
18/11/2011
DA 200
I
18/11/2011
DA 201 to DA 204
H
18/11/2011
DA 205
K
18/11/2011
DA 206
L
18/11/2011
DA 210 to DA 212
K
18/11/2011
DA 220
H
18/11/2011
DA 221 and DA 222
F
18/11/2011
DA 223
G
18/11/2011
DA 401 to DA 406
A
18/11/2011
DA 500 and DA 501
H
18/11/2011
DA 502
G
18/11/2011
DA 503
H
18/11/2011
and except where amended by the conditions of this consent:
A reference in these conditions of consent to:
1. The apartment building, is a reference to the development works associated with the construction of a new apartment building comprising 21 apartments and 37 basement parking spaces on the development site.
2. The dwelling house is a reference to the works associated with the alterations and additions of the existing dwelling house on the development site and known as 2 Vale Street Cammeray.
(Reason: To ensure that the form of the development undertaken is in accordance with the determination of the Court and Council, and public information)
2 Approved Landscaping Plan A5
A2. Landscaping works on the site are to be undertaken generally in accordance with the landscaping plans and plant list identified in condition A1, except as varied:
(1) By the Vegetation Management Plan dated 30 April 2009 prepared by Abel Ecology, as approved and revised in accordance with the Voluntary Planning Agreement (as modified) referred to condition AA1 of this consent.
(Reason: To ensure appropriate landscaped area and landscaping amenity for the development)
Lot Layout
A5. The subdivision pattern and lot layout shown in the architectural drawings by Geoform Design Architects dated 18 and 19 November 2011referrred to above is not approved.
1. Design and Construction for Bushfire Protection
C2. The construction of the alterations and additions to the dwelling house shall comply with Australian Standard AS 3959-1999 'Construction of buildings in bushfire-prone areas' Level 3.2.
The construction of the apartment building and ancillary structures and works on its south-west, north-west and north-east elevations shall comply with Section 8 (BAL 40) Australian Standard AS 3959-1999 'Construction of buildings in bushfire-prone areas'
The construction on the south-east elevation of the apartment building shall comply with the Section 7 (BAL 29) Australian Standard AS 3959-1999 'Construction of buildings in bushfire-prone areas'
The dwelling house must be upgraded to improve ember protection. This is to be achieved by enclosing all openings (excluding roof tile spaces) or covering openings with a non-corrosive metal screen mesh with a maximum aperture of 2mm where applicable, this includes any subfloor areas, openable windows, vents, weepholes and eaves. External doors are to be fitted with draft excluders.
Roofing shall be gutterless or have leafless guttering and valleys which are to be screened with non-corrosive mesh to prevent the build up of flammable material. Any materials used shall be non-combustible.
North-east structures and shade materials shall be non-combustible or have a Flammability Index no greater than 5 when tested in accordance with Australian Standard AS1530.2-1993 'Methods for Fire Tests on Building Materials, Components and Structures - Test for Flammability of Materials'.
The recommendations of the report 'Bushfire Protection Assessment, dated 30 March 2007, prepared by BES Bushfire and Environmental Services, including provision of water supply hydrants to each level of the building, shall be complied with except as varied by other relevant conditions of this consent.
(Reason: to minimise the risk of bush fire attack and damage to the buildings, and provide protection for residents and emergency services personnel, having regard for the recommendations of the NSW Rural Fire Service).
3. Sydney Water C1
C13. Notice of Requirements to be obtained from Sydney Water prior to release of a Construction Certificate and Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained prior to occupation. Application must be made through an authorised Water Servicing Co-ordinator. For details see the Sydney Water web site or telephone Sydney Water's 'Development Operations Group' on 9829 8682.
The final Section 73 Certificate must be submitted to the Certifying Authority prior to occupation of the development.
(Reason: To ensure compliance with the statutory requirements of Sydney Water)
4. Bond for Damage and Completion of Infrastructure Works - Stormwater, Kerb and Gutter, Footpaths, Vehicular Crossing and Road Pavement
C29. The applicant must lodge bonds identified in the following schedule with Council against any potential infrastructure damage to Council's assets or failure to complete to the relevant specification the construction of any infrastructure works required as part of this consent.
Type of infrastructure For works involving the proposed apartment building and ancillary structures. For works involving alterations and additions to the dwelling house
Damage to footpath, verge, drainage and roads $47,000 bond $3,000 bond
The bond(s) shall be lodged in the form of a deposit or bank guarantee and will be refundable respectively following Occupation Certificate issue for the apartment building and the dwelling house alterations and additions, and at the end of any maintenance period stipulated by consent conditions, upon inspection and release by Council's Engineers. Further, Council shall have full authority to make use of the bond for such restoration works as deemed necessary by Council in the following circumstances: -
a) Where the damage constitutes a hazard in which case Council may make use of the bond immediately;
b) The applicant has not repaired or commenced repairing damage within 48 hours of the issue by Council in writing of instructions to undertake such repairs or works;
c) Works in the public road associated with the development are to an unacceptable quality; and
d) The Certifying Authority must ensure that bond is lodged with North Sydney Council prior to issue of any Construction Certificate.
(Reason: To ensure appropriate security for works on public land and an appropriate quality for new public infrastructure)
6 Works as Executed Drawings - Stormwater
G3. Prior to the issue of Final Occupation Certificate for the apartment building, the applicant must provide works-as-executed summary drawing (WAE) of the completed drainage system. The WAE shall show the alignment, depth and grade of the stormwater drainage pipelines, puts, storage tanks dispersion points and ancillary plumbing. The WAE shall be reviewed by a qualified civil engineer and certification provided to the PCA that the as-built-system achieves the design intent of the plans approved with the Construction Certificate. This certification shall be provided with the WAE survey.
7. Infrastructure Repair and Completion of Works G1
G4. Prior to issue of any Occupation Certificate all required works in the road reserve must be completed in full and any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers at no cost to Council.
(Reason: Maintain quality of Public assets)
8. Certification- Civil Works
G5. a) An appropriately qualified and practising Civil Engineer shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with this consent and the provisions of the applicable Australian Standard. The applicant shall, upon completion of the development works and prior to the issue of a final Occupation Certificate for the apartment building, submit to Council a copy of the aforementioned letter of certification.
b) An appropriately qualified and practicing Civil Engineer shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with this consent. The applicant shall, upon completion of the development works and prior to the issue of a final Occupation Certificate, submit to Council a copy of the aforementioned letter of certification.
c) An appropriately qualified and practicing Geotechnical Engineer or Engineering Geologist shall certify to the Principal Certifying Authority that :
(i) the cliff line risk assessment and outcome, and
(ii) any works to improve the cliff face stability undertaken during the development, and in accordance with this consent, and
(iii) a geotechnical risk assessment plan has been prepared for the ongoing management of geotechnical risk for the development and any adjoining property influenced by conditions on the development site, for the life of the development.
The applicant shall, upon completion of the development works and prior to the issue of a final Occupation Certificate, submit to Council a copy of the aforementioned certificate.
(Reason: Compliance with the Consent)
6. Pool Access
G6. Access to the pool shall be restricted by a child resistant barrier in accordance with the regulations prescribed in the Swimming Pools Act 1992, and the requirements of the applicable Australian Standard. The pool shall not be filled with water or be allowed to collect stormwater until the installation of the child resistant barrier is completed. Certification from an appropriately qualified person confirming compliance with these requirements shall be provided prior to the issuing of an Occupation Certificate for the dwelling house.
(Reason: To ensure that any person acting upon this consent is aware of their obligations under the provisions of the Swimming Pools Act)
7. Certification for Mechanical Exhaust Ventilation
G8. Certification, from an appropriately qualified and practising Mechanical Engineer, is to be submitted to the Principal Certifying Authority, detailing that the exhaust ventilation system has been installed in accordance with the applicable Australian Standard, prior to completion and the issue of any Occupation Certificate for the apartment building.
(Reason: To ensure compliance with acceptable standards for the construction and operation of mechanical plant)
8. Damage to Adjoining Properties
G9. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights and the need for owner's permission must be observed at all times, including the entering onto land for the purpose of undertaking works.
On completion of the works and prior to the issue of a final Occupation Certificate,
(1) For the apartment building, a certificate is to be prepared to the effect that no damage has resulted to adjoining premises, and is to be provided to Council and the Principal Certifying Authority, and
(2) For the alterations and additions to the dwelling house, a certificate is to be prepared to the effect that no damage has resulted to adjoining premises, and is to be provided to Council and the Principal Certifying Authority
Alternatively, if damage is identified which is considered to require rectification, the damage shall be rectified or a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible and prior to the issue of a final Occupation Certificate.
(Reason: To ensure adjoining owner's property rights are protected)
9. Utility Services
G10. All utility services shall be adjusted, to the correct levels and/or location/s required by this consent, prior to issue of a final Occupation Certificates for:
1. The apartment building, and
2. The alterations and additions to the dwelling house.
This shall be at no cost to Council.
(Reason: To ensure compliance with the terms of this consent)
10. Basement Pump-Out Maintenance
G11. Prior to issue of the final Occupation Certificate for the apartment building maintenance regime shall be prepared for the basement stormwater pump-out system and submitted to Principal Certifying Authority to be included with the Occupation Certificate documentation for the apartment building. The regime shall specify that the system is to be regularly inspected and checked by qualified practitioners.
(Reason: To ensure future provision for maintenance of the drainage system)
11. Notification of New Address Developments
G12. Prior to any Occupation Certificate for the apartment building being issued for the building works, the person acting upon this consent must comply with the following: -
a) Notify Australia Post of the address(es) as issued by Council and the location in plan form of any secondary, internal addresses, in relation to built public roads. To find your nearest Australia Post Delivery Facility contact 13 13 18.
(Reason: To ensure that Council records are accurate, and that house numbering complies with the requirements of Council's House Numbering Policy. Proper house numbering also assists emergency services in readily locating properties)
12. Asbestos Clearance Certificate
G13. Prior to issuing any Occupation Certificate for building works (1) for the apartment building, and (2) for the alterations and additions to the dwelling house, where asbestos based products have been removed or altered, an asbestos clearance certificate signed by an appropriately qualified person (being an Occupational Hygienist or Environmental Consultant) must be submitted to the Principal Certifying Authority (and a copy forwarded to Council) for the building work which certifies the following: -
a) The building/ land is free of asbestos; or
b) The building/ land has asbestos that is presently deemed safe.
The certificate must also be accompanied by tipping receipts, which detail that all asbestos waste has been disposed of at an approved asbestos waste disposal depot. If asbestos is retained on site the certificate must identify the type, location, use, condition and amount of such material.
Note: Further details of licensed asbestos waste disposal facilities can be obtained from To ensure that building works involving asbestos based products are safe for occupation and will pose no health risks to occupants)
13. Vehicle Egress Signs
G15. Prior to the issue of an Occupation Certificate for the apartment building, appropriate sign(s) shall be provided and maintained within the site at the point(s) of vehicular egress to ensure all vehicles stop before proceeding onto the public way.
(Reason: To ensure pedestrian safety)
14. Disposal Information
G16. Upon completion of works for the apartment building and prior to occupation of the apartment building, the person entitled to act on this consent shall provide to Council's Open Space and Environmental Services Department a hard copy of the following information:
(a) the total tonnage of all waste and excavated material disposed of from the site (including any tipping dockets); and
(b) the disposal points and methods used.
(Reason: To ensure appropriate disposal methods are undertaken for auditing and inspection purposes)
15. Height
G17. The maximum RL of the proposed development shall be RL 61.00 AHD measured at the roof of the car lift structure, RL 59.83 AHD measured at the roof of the easternmost lift core/ stairwell, RL 59.13 AHD at the roof of the mid liftcore/ stairwell, and RL 58.43 AHD at the westernmost liftcore/ stairwell. The Certifying Authority must ensure, prior to the issue of the final Occupation Certificate for the apartment building required on the completion of works, that evidence is submitted by the Applicant, demonstrating compliance with this condition.
(Reason: To ensure compliance with the terms of this development consent)
16. Intercom
H2. An intercom system must be provided in a convenient location adjacent to the visitor parking entry to enable easier and safe access to visitor parking prior to issue of any Occupation Certificate for the apartment building.
(Reason: To ensure convenient access is available for visitors to the apartment building)
Management of Site for Bushfire Protection
J10. At the issue of a subdivision certificate and in perpetuity the entire development site shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of Planning for Bush Fire Protection 2006 and the NSW Rural Fire Service's document standards for asset protection zones. The riparian vegetation buffer is to be excluded and all lots are to be managed in accordance with the Voluntary Planning Agreement prepared by Colin Biggers & Paisley Lawyers (as modified from time to time and registered over the development site).
Amendments
26 June 2013 - Numbering
Amended paragraphs: Annexure
Decision last updated: 26 June 2013
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