Pipheron Pty Ltd v South Sydney City Council - [2000] NSWLEC 65

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65

PARTIES:
APPLICANT:
Pipheron Pty Ltd
RESPONDENT:
South Sydney City Council

FILE NUMBER(S): 10673 of 1999

CORAM: Talbot J

KEY ISSUES: Development Application :- residential flat building - justification for non-compliance with DCP

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20

DATES OF HEARING: 20/03/2000, 21/03/2000, 22/03/2000, 23/03/2000

DATE OF JUDGMENT:
03/31/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M G Craig QC
SOLICITORS:
Mallesons Stephen Jaques
RESPONDENT:
Mr P J Schofield (Solicitor)
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 10673 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 31 March, 2000

Pipheron Pty Ltd

v

South Sydney City Council

Respondent

REASONS FOR JUDGMENT

1. The applicant has appealed against the actual refusal of its application for development consent by the respondent council.

2. The development application seeks consent for the demolition of the existing building on land bounded by Power Avenue, Brennan Street and Loveridge Street, Alexandria and the erection of a residential flat building. The property is known as 11-15 Power Avenue, Alexandria. It has a generally rectangular shape and a total area of 6,516 square metres.

3. Present development consists of a brick factory/warehouse type building with a three storey commercial office building in the north east corner of the site.

4. The site is surrounded by land used for commercial purposes on three sides, whereas Alexandria Park is situated to the north, on the opposite side of Power Avenue.

5. There are mixed residential and other uses within the immediate vicinity.

6. The Court has been told that the site is located in an area subject to substantial planned change and redevelopment within a mixed use zone.

7. A high school is situated immediately west of the park.

The proposed development

8. The proposal is to erect four separate multi-unit residential buildings with a single commercial use in the north east corner, adjoining both Power and Brennan Streets. The latter will be a ground level café with outdoor seating.

9. The four buildings are arranged around the street boundaries and the ACI site adjoining to the south. This creates a central open space for the communal use of future residents. The ground level units have courtyards facing the street. There are also small courtyards at the rear of each unit facing into the communal open space in the centre. Units on upper floors have balconies and in particular, each unit passes through the full width of the building in order to provide through ventilation without the need for air-conditioning or fans, in accordance with the principles of sustainable development.

10. Building A faces Power Avenue and is four storeys in height above a basement carpark. Another further level is described as an attic.

11. Building B faces Loveridge Street and is four levels above a basement carpark. Building C is similar, facing Brennan Street.

12. Building D, running parallel to the common boundary with the ACI site, is five storeys above a basement carpark with a sixth level, described as an attic.

13. There are two basement carparks. The larger one is located under buildings B, C and D with ramp access from Brennan Street. The smaller car park is proposed beneath building A with ramp access from Loveridge Street. There is a substantial stormwater easement crossing the site between the two separated basement carparks.

14. The development comprises a total of 121 residential apartments within the four separate buildings, with 114 car spaces. There are 70 one bedroom units, 41 two bedroom units and 10 three bedroom units. The proposal achieves a floor space ratio (FSR) of 1.5:1. The carpark has, amongst the 114 car spaces, two disabled spaces, three wash bays and some 20 visitor spaces, together with 28 bicycle spaces at basement level and 14 bicycle spaces at ground floor level.

15. According to the applicant, the central communal open space and the perimeter landscaping will provide 1,517 square metres of private open space at ground level and 2,187 square metres of common open space. The total landscaped open space equates to 56.8 per cent of the site area.

Planning controls

16. In South Sydney LEP 1998 (“the LEP”) the council has adopted a recent trend to pursue as one of the principal objectives of the plan, an aim to create an integrated planning framework of land use controls which allow detailed provisions, which would otherwise be development standards, to be made in development control plans. The consequence is that where there is non-compliance with controls over FSR and height, for example, then the constraints imposed by SEPP 1 have no application.

17. Clause 10 of the LEP, provides in a familiar form, that consent is not to be granted unless council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.

18. The land is within Zone No. 10 - The Mixed Uses Zone which lists six objectives, primarily to allow a mixture of compatible land uses in appropriate circumstances, such as residential, retail, commercial, light industrial and industrial development, to promote mixed use planning by locating facilities such as housing, places of employment and shops in close proximity to each other so as to be accessible by public transport.

19. The remaining objectives pursue that same primary theme of accommodating a variety of compatible land uses with controls to manage the impacts of non-residential development and to minimise adverse impacts on residential amenity by devising appropriate design assessment criteria and applying specific impact mitigation requirements by the use of development control plans.

20. Development for the purpose of home businesses, building works and dwelling houses, other than those in a heritage conservation area, do not require development consent. Otherwise, any other development requires consent.

21. The council is required, pursuant to cl 28, to take into consideration a number of specified built environment design principles. Where there is an application for consent to the carrying out of development on land comprising a site area of 5,000 square metres or more, the council must take into consideration any masterplan for the land that is available to the council.

22. DCP 1997 - Urban Design (“the DCP”) specifies FSR and height controls.

Floor space ratio

23. The FSR for the site is specified on the map as 1:1. However, a bonus floor space incentive of up to 0.25:1 of the total site area may be applicable to sites requiring dedication of areas in addition to s 94 requirements; through site links in large development sites; public art; street closures and any other works or improvements at the discretion of the council.

Where a site is seen as capable of taking an FSR or height above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such increase.

26. The council has prepared the DCP on the basis that the FSR and height controls are intended to allow development that will enhance the character and built form in the area.

27. Recognition is given to sites that are capable of taking an increase in FSR or height above the limit, provided they satisfy environmental and amenity considerations.

28. Section 94 contributions are contemplated in accordance with a formal s 94 contributions plan.

29. A bonus floor space incentive of up to 0.25:1 of the total site area may be applicable to sites requiring the provision of dedication of land or other works or improvements not necessarily justified under s 94.

31. The evidence of the council’s transport planner, Mr John Hart, is that if the applicant made a contribution for a pedestrian crossing, estimated at $70,000 and also paid $120,000, allegedly towards the upgrading of a government bus service through the area at nights and weekends pursuant to proposed conditions of consent, the council would be satisfied to allow the FSR of 1.5:1 which the applicant seeks. The council’s satisfaction has been further induced by the applicant’s agreement to pay a $250,000 contribution to the cost of embellishing Alexandria Park and also to carry out street improvements beyond those which arise directly as a consequence of the development.

32. The Court has been told that a consultant engaged by council derived a general contribution figure of $300 for each square metre of bonus floor space.

33. The scheme identified by Mr Hart suggests that council is prepared to ignore strict town planning considerations and allow bonus floor space if a developer is prepared to make monetary contributions beyond its statutory legal obligation.

34. A consideration of the provisions in the DCP, in the light of the evidence of Mr Hart, leaves the Court with serious reservations about the veracity of council’s opposition to the additional floor space.

35. Nevertheless, it is axiomatic that the Court is required to have regard to environmental and amenity impacts arising from the provision of additional floor space, irrespective of the DCP provisions. Indeed the obligation extends to all aspects of the development, notwithstanding the specific controls found in the DCP.

36. In July 1998 council recognised that the site could be capable of accommodating 1.5:1 FSR and heights up to 12 metres in various elements of the building, including along the frontage opposite Alexandria Park when it passed a resolution to that effect in response to a form of masterplan lodged in respect of the subject site and the adjoining ACI site.

Height

37. The height control map in the DCP specifies a maximum height of nine metres in respect of the subject site. The height specified in the height control map does not include an attic as defined.

38. Height is defined for the purposes of the DCP as being the vertical distance between a point on the ceiling of the topmost habitable floor and natural ground level.

39. An attic is defined as the top storey of a building formed by the roof space or under the beams of the roof, where there are two or more storeys and the roof angle or pitch is not greater than 36 degrees. For an attic not to be an additional storey, the roof must pitch from the ceiling level of the uppermost floor.

The issues

40. The central issue between the parties is the proposed departure from the standards set for FSR and height by the DCP. Questions arise in regard to the interpretation of the DCP provisions. The council contends that the applicant needs to persuade the Court that notwithstanding the constraints imposed by the DCP, the exceedence of floor space and height are nevertheless acceptable because, within the terms of the DCP itself, it is possible to satisfy environmental and amenity considerations following the detailed assessment of the urban context which shows the site is capable of taking the increase beyond the numerical limits.

41. There are also a number of peripheral issues relating to the mix of uses within the proposed development, landscaping and relationship to adjoining areas.

42. On the opposite side of Alexandria Park there are a number of Victorian single dwellings which are deservedly within a heritage conservation area. Any direct relationship between the conservation area and the subject site is broken dramatically by the intervention of Alexandria Park. The park is a large area, surrounded on three sides by suburban streets with no buildings up to its alignment. At the western end it adjoins the playing areas of Cleveland Street High School. It contains formal facilities for the playing of organised team sport as well as open passive recreation areas inside a strong perimeter of mature trees up to 20 metres high.

The masterplans

43. This is a large site and falls within the ambit of land that demands special consideration in a masterplan, contemplated by cl 28(2) of the LEP.

44. A masterplan is defined by the LEP. The matters to be included in a masterplan require more detailed consideration to the particular parcel of land beyond the wider address of the LEP and DCP.

45. It becomes a finer development tool by which the development of the land is to be considered. The express provision in the LEP for consideration of any masterplan gives added weight and status to it.

46. The definition requires an explanation of how the planning and design principles adopted address the DCP. As Mr Craig QC submits, the standards in the DCP are deliberately not set as development standards that are the subject of specific legislative address in the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and SEPP 1. By relegating the standards to the DCP, the council is recognising that a degree of flexibility and discretion is to be applied. This approach is confirmed by the overriding discretion in the DCP to allow development which is above the FSR or height limit where the site is capable of taking such increase.

47. If a masterplan answers the description in the definition, then it falls for consideration if it is at the time available to the council.

48. The masterplan prepared for the site is the subject of a specific resolution by council. On its face, it meets the criteria for a masterplan contemplated by cl 28(2) of the LEP and the definition.

49. The council officers’ assessment of the masterplan recognises the capacity of the site to accommodate development with FSR in excess of 1.5:1 and height in excess of nine metres. After dealing with objections following public exhibition, the officers concluded that the site is very suitable for comprehensive redevelopment, although the scale of development depicted exceeds the current and draft controls for the site.

50. The recommendation to council was that development complying with the 1.5:1 maximum FSR, subject to appropriate public realm improvements being provided, would be more appropriate.

(A)

That the Council advise the applicant that whilst the general principles and concept of the development are supported, Council does not support the scale of the larger buildings and the total floor space proposed due to their inconsistency with Development Control Plan 1997 and the Draft Green Square Masterplan and that development complying with the 1:1 maximum floor space ratio, with a 0.5:1 bonus if and only if appropriate public realm improvements are proposed above and beyond Section 94 Contributions that would be applicable, would be more appropriate, and further that any building facing Alexandria Park comply with a 12 metre height limit;

52. The draft structural masterplan for Green Square is a broader based study which identified a core area proximate to the proposed Green Square Railway Station. It recognised an area which is potentially influenced by the Green Square development and referred to as the related area. The subject land is part of the land outside the core area, but within the related area.

53. Controls for the development of the related area are referred to in the Green Square Masterplan. One of the key principles underpinning the design in the Green Square Masterplan is a gradation of FSR and heights, allowing higher densities along South Dowling Street and Green Square Station with provision for density bonuses in return for improvements to the public domain. An FSR control of 1.5:1 and a 12 metre height control is contemplated for the subject site by the Green Square Masterplan.

54. Although council is now moving to repeal DCP 1997 - Urban Design Green Square Amendment Stage 1 which followed the consideration of the Green Square Structural Masterplan as a consequence of the decision of this Court in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20, it nevertheless reflects the intentions of council for the future development of the area at that time.

Land use mix

55. In the context of land use the proposal meets the objectives of zone 10 set out in cl 21(1) of the LEP. There is already a proliferation of retail, commercial and industrial development in the immediate locality. The introduction of residential development on this site will contribute to the mixture identified by the LEP. The Court rejects any suggestion that the objectives require that the mixture of uses be necessarily found within any individual site.

Impact on Alexandria Park

56. Council’s case is that there will be an adverse effect from the building facing the park when viewed from the park or Power Avenue. The Court has the benefit of a site inspection including a comprehensive observation of the site from the park and surrounding streets. Existing trees within the park will substantially break up and at times obliterate any perspective of the proposed building.

57. The building itself has architectural features including fenestration, articulation, setback and balconies which will detract from any adverse impact. Individuals may well express competing views about its attractiveness. The Court is not convinced that the building will be so ugly or obtrusive that it should be rejected.

The planning approach

58. DCP 1997 is a comprehensive document and indicates an acceptable FSR of 1:1, with a floor space bonus of up to 0.25:1 in the circumstances outlined above. Performance criteria are set for achieving the maximum FSR on a site. In particular, these are the environmental constraints imposed by overshadowing and privacy, streetscape, parking and landscape requirements, visual impacts and views and the capacity of the community infrastructure and the road networks to support the development.

59. In addition the DCP indicates a maximum height of nine metres for the subject site and surrounding land. This contrasts to building A which is approximately 12 metres high (excluding the so-called attic), buildings B and C which will be 12 metres and building D which will be approximately 14 metres high (excluding the so-called attic). The height standard in the DCP is directed to ensure that buildings are appropriate in scale, compatible with and complementary to areas of townscape significance, the site and its context and that they do not dominate or overshadow the public domain and achieve high environmental amenity.

60. LEP 1998 requires the consent authority to consider the principles relating to built environment design and demands the consideration of a masterplan in relation to sites over 5000 square metres in area.

61. The Draft Green Square Masterplan is the document upon which the Green Square LEP and DCP were based. At that time it was foreshadowed that the subject site would have a 12 metre height limit and an FSR of 1:1 with the prospect of a bonus of 0.5:1.

62. It must be recognised, however, that when council adopted the key principles and elements of the Green Square Structural Masterplan, it did not embrace the specific controls proposed, such as for heights and FSR. It was recognised only as being a principles framework for further work and a basis for negotiations and discussions with stakeholders in developing workable statutory plans for the area.

63. The consideration of the masterplan which specifically addresses the subject site and the adjoining ACI site is more remarkable than the masterplan itself. The masterplan envisaged the redevelopment of the whole of the block including the ACI building. The proposed buildings were in a different configuration to that now proposed.

64. The report on this masterplan pointed out that the scale of the development exceeded the current and draft controls for the site as they applied on 20 July 1998.

65. The report to council concluded that given the future of the entire area was being looked at in a broad systematic way through the Green Square planning exercise, there was not considered to be any reasonable justification for the proposed departures from the FSR and height controls, particularly the building fronting the park which introduced a significantly different scale to the precinct.

66. The building facing the park in the masterplan had a height in excess of 24 metres and in elevation appeared to accommodate seven storeys. The applicant stated that the proposal had an FSR of about 2:1.

67. The council resolved on 29 July 1998 to advise the applicant that whilst general principles and concepts of the development were supported, the scale of the larger buildings and the total floor space were not and that development complying with the 1:1 maximum FSR with a 0.5:1 bonus “if and only if appropriate public realm improvements are proposed above and beyond Section 94 Contributions” would be more appropriate and that any building facing Alexandria Park should be within a 12 metre height limit.

68. Having regard to the evolving planning philosophy to be applied in this area and taking into account the council’s intention to return to the drawing board in relation to Green Square, it is difficult to adopt a firm set of criteria against which the proposed development should be assessed.

69. The Court is really thrown back to a subjective assessment after taking into account the whole of the evidence, including the views of the four experts who gave evidence, the opinions expressed by council officers when considering the two masterplans and the subject development application prior to its rejection and the concerns of local residents.

70. A number of residents have given evidence. The majority of resident complaints, in the Court’s opinion, stem from a dissatisfaction with the zoning of this land and the encouragement for redevelopment of former industrial sites by council and other agencies. Apprehension about the impact of changes to the built form and social mix in an area during a time of a structured evolution of planning regimes is understandable. The Court, however, does not have an active role in this process.

71. There are no individual residences within 200 metres of the site. The proposal does not have any direct adverse impact on any existing dwelling.

72. The land immediately adjoining is currently used for a variety of industrial and other commercial purposes.

73. Some residents were clearly under the misunderstanding that the applicant is proposing a building opposite the park up to 25 metres high, as contemplated by the exhibited masterplan for the site. The subject application proposes a building 12 metres high along that frontage.

74. Of all the experts who have given consideration to the proposal, it is only the council’s consultant town planner, Mr Lawrence Winnacott, who stands out against the development. He has done this in the face of a recommendation for conditional approval by council’s Director of Planning and Building. The analysis by Mr Winnacott has been most helpful to the Court by providing a balance against the otherwise unanimous endorsement of the proposal.

75. Mr Winnacott points out that the proposed development, having regard to its height, bulk and scale will be substantially larger than any other developments in the immediate vicinity. In his opinion the development will have a dominating impact on the streetscapes of Power Avenue and Brennan and Loveridge Streets. He says it will also have an unsatisfactory visual impact on Alexandria Park and views from the park to the south.

76. He protests that in terms of its height and bulk the development will be of a scale simply not envisaged for this area by DCP 1997. Accordingly, it will be out of character with the relatively small scale development in the streets surrounding Alexandria Park.

77. He has formed the opinion that the departure from the DCP FSR standard is unacceptable and when considered within the context of the other features of the development will be likely to have a detrimental effect on the amenity of the area.

78. Similarly in regard to the height of the proposed development, Mr Winnacott says that when considered in conjunction with other design features, it will result in a development which is substantially higher than any other development in the surrounding area and therefore would be likely to have an adverse impact on the environmental amenity of the area.

79. He recognises the current state of flux when he opines that any consideration of increasing the development standard in terms of height and FSR needs to be carried out within the context of a comprehensive pre-planning study for the area.

80. In the circumstances Mr Winnacott believes that the proposed development is premature and does not warrant the granting of development consent.

81. The council’s Director of Planning and Building reported on 5 October 1999 that the proposal had been assessed in accordance with the requirements of s 79(c) of the EP&A Act and regulations. The director noted that the proposal is satisfactory from an urban design perspective and is consistent with the objectives of the LEP in respect of the mixed use zone. Any concern regarding the height of the buildings in respect of the relationship with Alexandria Park and neighbouring conservation area was dealt with by the inclusion of conditions which have since been reflected in amendments made to the plans.

82. Curiously, the director did not consider that the various public domain improvements offered as inducement for additional FSR were sufficient to warrant the full FSR bonus and hence the additional bonus elements were recommended. Notwithstanding this requirement he stated the proposed built form of the development is such that the FSR of 1.5:1 can be reasonably accommodated on the site.

83. Professor Peter Webber believes that the new building will significantly enhance the amenity of the area and thereby satisfy the fundamental objective of any FSR control in relation to both form and amenity considerations.

84. It is Professor Webber’s view that the development will not “dominate” the public domain because the height of the new building will be compatible with the existing nearby buildings, streets and park, and their scale would reinforce this compatibility because of the modelling and articulation of the facades.

85. Professor Webber also told the Court that the visual bulk of the buildings would be unobtrusive because of the detailed modelling and articulation which gives a suitable domestic scale to the facades.

86. It is clear to the Court that the buildings proposed will be higher than the existing industrial buildings in the immediate locality. However, the residential character of the development will give it appropriate proportion, which together with the setbacks proposed and the separation between the four buildings will significantly diminish the impact of additional height.

87. The setting back of the buildings from the street alignment affords the opportunity to provide landscaping in the front yards. I agree with Professor Webber that this will allow the development to provide a good level of amenity for future residents whilst fitting comfortably into the streetscape and protecting existing and future neighbouring buildings from any undue amenity impacts.

88. The criticism levelled by council that the provision of a café in the north eastern corner of the site is no more than a token recognition of the objective to obtain mixed uses in the zone does not in my view take account of the underlying purpose of the objective, which is a statement of broad intention rather than site specific.

89. I agree with Professor Webber when he recognises the nearby heritage areas as being invaluable and attractive. However, it must be recognised that the proposed buildings will be sufficiently removed from the heritage areas for there to be no adverse impact. The width of Alexandria Park and the heavy screening by existing trees and the proposed new landscape planting will, as Professor Webber contends, ensure that the heritage area will not be compromised.

90. The applicant also relies upon the evidence of consultant town planner, Mr Neil Ingham. He expresses the opinion that the proposal will have a visual appearance which is appropriate to the mixed use context of the site and is a vast improvement on the existing development on the site and in the surrounding area. He is likewise of the opinion that the proposal is consistent with the objectives of the mixed use zone.

91. Mr Ingham reiterates that the proposed height, bulk and scale of the residential buildings are appropriate and relate well to the character of the area.

92. In response to concerns expressed by nearby residents that the mix of proposed dwellings would not contribute to the social amenity of the area, Mr Ingham notes that there has been significant redevelopment in this area since 1991 including development similar to that proposed. In his opinion it is likely that the current dwelling mix will reflect what is proposed in the development. In any event, in his opinion, it is not unreasonable to allow a dwelling mix which is different to other established areas.

93. Finally, Mr Ingham expressed the opinion that the proposal will not have any unreasonable impacts upon surrounding properties or the area in general.

94. Mr Robert Chambers is a town planner who has an ongoing association with the evolution of this proposal.

95. Not surprisingly, Mr Chambers considers the proposal is generally consistent with council’s prescriptive requirements and is totally consistent with the objectives underpinning the current controls. He also believes the proposal will result in major improvements to the amenity and streetscapes of the area and that it is sympathetic to and compatible with the surrounding locality.

96. There has been considerable argument regarding whether or not rooms at the top of buildings A and D constitute attics within the definition contained in the DCP, for the purposes of calculating the height of the buildings. Having regard to the approach taken by the Court, whereby the buildings are to be generally assessed on their merit, rather than by reference to strict criteria and controls, the question of whether the additional rooms are attics within the definition is mainly academic. On balance the rooms in building A are not strictly attics, whereas the rooms in building D are clearly not.

97. The only real concern in this respect arises with building D. There is a question as to whether the landscaping can be achieved between building D and the rear boundary of the site with the ACI building and whether or not the height of the building and the limited setback would impose unreasonable constraints on redevelopment of the ACI building.

98. It is recognised that either the ACI building might be retained and redeveloped as contemplated by the masterplan or alternatively it could be demolished and an entirely fresh approach taken to its redevelopment. In the former case the proximity of building D is unlikely to place an unreasonable constraint on redevelopment. There is no substantive evidence which suggests that building D will render the redevelopment of the ACI site impracticable.

99. The height of building D also created some discussion in regard to the capacity to view it as a taller building out of character with its surrounds from some aspects within Brennan and Loveridge Streets. The Court is satisfied that any such impacts will be acceptable and are not such that should result in the development application being refused.

100. The applicant has presented a comprehensive set of landscape plans for the site. Originally these plans comprised part of the proposal. Ultimately, the applicant agreed to the council’s suggestion that the final detail of landscaping be left for future consideration as a condition of any consent to be granted. The Court is satisfied that it is practicable to provide adequate landscaping for the site and adjoining streets and that accordingly this matter can be deferred for approval at a later date.

Conclusion

101. Firstly, it must be said that the provision of balconies, courtyards and through flow ventilation to each unit, together with the communal open space in the central area will provide a high standard of amenity for future residents of the development. Some adverse comment has been made about the proposed social mix. The Court does not have any substantive evidence to convince it that there will be a negative social impact. Although there will be a preponderance of one bedroom units, there is nevertheless a roughly even ratio of units with more than one bedroom.

102. The question of height, bulk and scale inevitably must be determined in favour of the applicant, having regard to the weight of the evidence. The Court has no reason to cavil with the conclusions reached by the three expert witnesses relied upon by the applicant and council’s Director of Planning and Building. Mr Winnacott has provided the necessary balance to enable the Court to assess the applicant’s case critically.

103. The future development of the site has been contemplated as part of the evolutionary process commissioned by government at various levels. Guidelines and parameters have been identified for the locality and the site itself. In the Court’s opinion, the development will not be inconsistent with the adopted strategies.

104. The council’s case has been seriously weakened by the conclusion of its senior planning officer and the expressed willingness for council to accept public domain benefits in return for the so-called bonus floor space. If the floor space and height controls were intended to be sacrosanct and strictly applied, they would have been included in the provisions of the LEP and no question of a trade-off, even under s 94 of the EP&A Act, could have arisen.

105. The Court is satisfied that the development application be determined by a granting of consent subject to the conditions which have been settled between the parties.

Orders

1. The appeal is upheld.

2. Development Application No. U99/00663 for the demolition of existing buildings and the erection of four multi-unit residential buildings at 11-15 Power Avenue, Alexandria is determined by granting consent subject to the conditions attached and marked “A”.

“A”

Conditions of Development Consent
in
Matter No. 10673 of 1999

Pipheron Pty Ltd v South Sydney City Council

1. That in addition to the public domain improvements listed below in conditions (2), (3) and (16) a contribution of $120,000 be agreed by the applicant to be paid to Council, on behalf of Sydney Buses prior to release of the construction certificate, towards subsidisation of night time and weekend bus services;

2. That the applicant agree to meet all costs associated with the implementation of a pedestrian crossing over McEvoy Street, the design of which shall be agreed to and be to the satisfaction of both the Roads and Traffic Authority and the Director of Public Works;

A detailed plan of the proposed works shall be submitted to and approved by Council prior to release of the construction certificate.

4. That prior to issuing a Construction Certificate, it will be necessary to lodge with Council a fee of $60,000 in the form of Cash or non expiry Bank Guarantee being the building damage deposit for the public way. This deposit will be returned upon the satisfactory completion of the work approved under this application and the submission of all relevant certificates provided that there is no damage to the public way. A written request shall be made to the Council for the return of the deposit.

5. That prior to issuing a construction certificate, it will be necessary to produce evidence of the payment of the levy, or the first installment of the levy, required under the Building and Construction Industry Long Service Payments Act 1986, and ensure that the plans are suitably endorsed. The levy, to the value of $36,000, or first installment (as applicable), can be paid to the Council, providing that a completed levy payment form accompanies the payment;

6. Part A

As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and South Sydney City Council Section 94 Contributions Plan 1998, the following monetary contributions towards the cost of providing facilities and amenities are required.

Open Space: LGA Works Programme $37,380 2E97003.BGY0

Open Space: New Parks $191,112 2E97009.BGY0
Accessibility And Transport $1,129 2E97006.BGY0
Management $2,829 2E97007.BGY0

Total $232,450

The above payments, with the exception of the land acquisition component of New Parks and Management, will be adjusted according to the relative change in the Consumer Price Index using the following formula. The contribution for land will be adjusted in accordance with the latest annual valuations.

CPI1

where:

C is the original contribution amount as shown above;
CPI2 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of Statistics at the time of payment; and
CPI1 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of Statistics at the date of calculation being - December Quarter 1999/2000.

The above amount must be paid to the Council in cash or by unendorsed bank cheque.

Payment shall be made before the release of the construction certificate.

Part B

Applications for the payment of contributions by carrying out works which are identified in the Section 94 Contributions Plan will be considered on their merits.

To support the case for carrying out works, Council requires the submission, for formal approval, of complete construction documentation and detailed cost estimates of the works based on established industry standards.

Unless otherwise agreed, security in the form of an unconditional bank guarantee for the full contribution amount must be lodged with Council and will be held until the approved works have been certified as complete to the satisfaction of Council. For substantial works, Council may, at its discretion, hold the bank guarantee, or part thereof, until the elapse of a minimum defects liability period of at least twelve months after the practical completion of the works. Works to be carried out on public land will also require proof of public liability insurance.

Council also reserves the right to require the future management of the completed work to be formally agreed prior to acceptance.

7. As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and South Sydney City Council Section 94 Contributions Plan B Multi-Function Administration Centre, the following monetary contribution towards the cost of providing the facility and amenities supported by that plan are required.

Contribution Category Amount Account

Multi-Function Administration Centre $62,098 2E97008.BGY0

The above payment will be adjusted according to the relative change in the Consumer Price Index using the following formula:-

CPI1

where:

C is the original contribution amount as shown above;
CPI2 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of statistics at the time of payment; and
CPI1 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of statistics at the date of the consent as shown above.

The above amount must be paid to the Council in cash or by unendorsed bank cheque. Payment shall be made before the release of the construction permit.

8. That the development shall be generally in accordance with plans numbered DA01 dated 15 June, 1999, DA02-DA11 Rev 4 dated 21 January, 2000, DA12A Rev 5 dated 17 March, 2000, DA13-DA14 Rev 4 dated 21 January, 2000, DA15 Rev 4 dated 24 January, 2000, except where amended by conditions of consent;

9. That the floor to ceiling height of any of the buildings shall not be increased above that indicated on the submitted plans;

10. That planting along the Power Avenue frontage of the site shall be complimentary to the existing trees on the southern boundary of Alexandria Park. Details shall be included on the landscape plan submitted for approval with the construction certificate;

11. That the floor space ratio (utilising the definition of gross floor area in LEP 1998) shall not exceed 1.5:1 and that computer generated shaded plans verifying compliance with this condition shall be submitted with the construction certificate;

12. That a maximum of 88 off-street resident car parking spaces, 20 visitor spaces, and 6 for the cafe and commercial components shall be provided and designed, in accordance with Australian Standards 2890.1 and Council's Development Control Plan No.11. Dependent upon the additional space that can be provided in the basement beside the stormwater, the visitor parking provision may be reduced down to 12 spaces;

13. That 40 secure bicycle-parking spaces (in the form of individual lockers as opposed to communal rooms) shall be provided on the site for residents, and the spaces shall be in accordance with DCP No.11 and shall be to the satisfaction of the certifying authority;

14. That the applicant shall obtain the necessary approvals from Sydney water in respect to the existing stormwater easement, and construction of the building over the easement;

15. That clear sight lines, equivalent to corner splays of 2.0 m x 2.0 m, be maintained at the corners of Power Avenue with Brennan and Loveridge Streets on the ground floor extending from 1.0 m above footpath level.

Works

17. That the colour scheme for the Power Avenue elevation shall be of recessive and earthy tones. A photo montage and scheme which depicts the trees in Alexandria park shall be submitted for approval prior to release of the Construction Certificate;

and such materials shall respect and be consistent with the attributes and character of the surrounding area and shall be to the satisfaction of the certifying authority prior to release of the construction certificate.

19. That adequate provision shall be made for the installation of a mechanical exhaust ventilation system to the cafe where cooking, heating or similar food preparation is to be carried out;

20. That the car park shall be ventilated in accordance with Australian Standard 1669.1-1998 and Australian Standard 1668.2-1997, Section 4;

21. That the construction, fitout and finishes of the cafe shall comply with Food (General) Regulation 1997 and the National Code for the Construction and Fitout of Food Premises;

22. That all car wash bays shall be graded and drained to the sewer in accordance with the requirements of Sydney Water;

23. That the storage and handling of garbage shall comply with the requirements of Council’s “Waste Minimisation Fact Sheets”;

24. That a separate garbage/recycling storage area for commercial use shall be provided and detailed in the application for a construction certificate;

25. That the business proprietor shall enter into a contract for the daily removal of trade waste from the premises;

26. That drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required gutters and roadways shall be swept regularly to maintain them free from sediment. Matter is not be washed down into the drainage system;

27. That the applicant and/or builder shall prior to the commencement of work, install and maintain suitable measures to ensure that sediment and other materials are not tracked onto the roadway by vehicles leaving the site. The applicant and/or builder is advised that it is an offence to allow, permit or cause materials to pollute or be placed in a position that they may pollute waters;

28. That the use of the premises shall not give rise to the emission into the surrounding environment of gases, vapours, dusts or other impurities, which are a nuisance, injurious, dangerous or prejudicial to health;

30. That any external glazing shall have a reflectivity not exceeding 20%;

31. That the applicant shall apply to the Director of Public Works and Services for the allocation of a street number (involves a fee);

32. That the street number(s) shall be clearly displayed, with such number(s) being of contrasting colour and adequate size and location for viewing from the footway and roadway, prior to the issuing an Occupation Certificate;

33. That the premises shall be ventilated in accordance with the requirements of the Building Code of Australia, AS1668.1 and 2 and Council’s Ventilation Code;

(a) transmission of ‘offensive noise’ to any place of different occupancy, or

(b) a sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LA10,15min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.

35. That noise and vibration from the use and operation of any plant equipment and/or building services associated with the premises shall not give rise to an “offensive noise” as defined under the provisions of the Noise Control Act 1975;

36. That noise from construction/demolition activities associated with the development shall comply with the guidelines contained in the NSW, EPA, Environmental Noise Control Manual Chapter 171, that is:

(a) Construction periods of 4 weeks and under:

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 20dB(A) when assessed to any sensitive noise receiver.

The above noise levels are applicable for construction hours of:
(i) Mondays to Fridays, 7.00am to 5.00pm
(ii) Saturdays, 7.00am to 3.00pm
No construction work outside of the above hours is permissible without the prior approval of Council.

37. That the developer/registered proprietor shall advise any initial purchaser of a unit, or tenant where units are not to be sold, that it is Council’s policy not to issue resident parking permits to new residential flat developments located in Resident Parking Scheme areas;

38. That the surface of the car park shall be sealed to allow safe and clear operation of the car park, appropriately line-marked for spaces and to aid traffic circulation, prior to issuing an Occupation Certificate;

39. That of the required car spaces, at least 1 measuring a minimum of 3.5m x 5.5m shall be provided as a car wash bay for the development and shall be provided with water connection and drainage, detailed in the application for a construction certificate. All wash bay discharges are to be disposed of according to the standard requirements of the Director of Public Works and Services;

40. That a sign, legible from the street, shall be permanently displayed to indicate the availability of visitor parking, and visitor parking shall be clearly marked as such prior to occupation;

41. That all loading and unloading operations shall be carried out within the confines of the site, at all times (and shall not obstruct other properties/units);

42. That a detailed landscape plan and specification for works within the public domain and contained within the site prepared by a qualified Landscape Architect or designer shall be submitted to the Director of Public Works and Services prior to or with the application for a construction certificate. The plan shall nominate hardworks and softworks, including decorative paving types, retaining walls, garden bed edging, furniture, pergolas and fencing, existing and proposed critical levels, drainage, planting types and species, plant numbers and sizes (container size and height - minimum plant sizes are to be 75 litres for trees and 5 litres for shrubs) and irrigation. The plans shall include construction details. The plans shall be approved by the Director of Public Works and Services prior to the approval of the construction certificate;

43. That all existing trees on the site shall be protected from construction activities by the erection of a safety fence or barricade around the drip line (canopy edge) around each tree. No materials or equipment shall be stored or placed within the fenced area;

44. That the developer/owner shall be responsible for the cost of removing, relocating or replacing in the footway any tree whose removal is the consequential result of the construction of the vehicle driveways or other works;

45. That the developer/owner shall provide street trees (new and infill) in accordance with the Council’s Street Tree Masterplan (1996). The trees shall be a minimum of 75 litre container size, a minimum of 75mm caliper and shall be planted 10m apart, and shall be planted prior to issuing an occupation certificate;

46. That the minimum soil depth for planting on any slab shall be 1000mm for trees, 600mm for shrubs and 300mm for grass. These dimensions shall include 75mm depth for mulch and a suitable waterproofing and drainage layer;

47. That the developer shall submit with the landscape plan an annual maintenance programme for landscaping on the site, which is to be supplied to the body corporate or building owner for ongoing maintenance of the site;

48. That the landscaping works shall be to the satisfaction of the Parks Development Branch (ring to arrange a final inspection), prior to issuing an occupation certificate;

49. That a Certificate under Section 73 of the Water Board (Corporatisation) Act 1994 in respect of the proposed development shall be submitted to Council prior to issuing a construction certificate. Sydney Water may require you to construct works and/or pay developer charges. Accordingly, you shall make immediate application to avoid problems in servicing your development;

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

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

and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

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;

(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and

(b) adequate provision must be made for drainage;

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

In this condition, allotment of land includes a public road and any other public place;

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

(b) building involves the enclosure of a public place;

a hoarding or fence must be erected between the work site and the public place.

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.

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

Any such hoarding, fence or awning is to be removed when the work has been completed;

Any such sign is to be removed when the work has been completed.

54. Toilet facilities are 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.

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

In this condition:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan, the subject of a certificate of accreditation referred to in clause 95B of the Regulation.

approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

55. That the developer/owner shall accept responsibility for all costs associated with the design and construction of any works on the public way (including kerb, gutter, pavement, footpath paving, landscaping, drainage and alteration of public utility services), with such works to be carried out by Council’s workforce (unless otherwise agreed in writing by the Director of Public Works and Services);

56. That the applicant/owner shall fully meet the cost of any alteration or adjustment to existing public services affected by the proposed work, including the relocation of electric light poles or other services and the cost of Council’s subsequent restoration of the pavement (unless other arrangements are made with the Director of Public Works and Services);

57. Before erecting any hoarding, an application must be made to the Director of Public Works and Services for a Builders Hoarding Permit (for approval under the Roads Act 1993). No excavation shall be carried out on the public way beneath or adjacent to the hoarding without the approval of the Director of Public Works and Services;

58. That the developer shall make an application to the Public Works and Services Department for the issuing of new alignment levels to be adopted for the design of the building and other on-site works, prior to work commencing (Warning B To ensure that future vehicular or pedestrian access is possible you should not fix any boundary levels, either physically or in design drawings, until the alignment levels are issued);

59. That ground or rock anchors shall be placed no closer that 2 metres from the surface level and shall be the subject of a positive covenant, to the satisfaction of the Director of Public Works and Services, with the terms of the positive covenant being approved by the Council prior to the release of the occupation certificate;

60. That at least one main entry without steps and useable by people in wheelchairs shall be provided from the public way to the lift lobby in accordance with the design requirements of the relevant Australian Standards;

61. That prior to the release of the Construction Certificate (and any excavation or building work on the public way), a Road Opening Permit shall be obtained from Council’s One Stop Shop (required for approval under the Roads Act 1993);

62. That the cost of signposting for alteration of any kerbside parking restrictions required to complement the new development shall be borne by the developer/owner. The work shall be done by the Council, unless other arrangements are approved in writing by the Director of Public Works and Services;

63. That prior to the release of the construction certificate, the developer/owner shall make an application to the Director of Public Works and Services for the provision of the necessary footway crossing and also bear the cost of the crossing and reinstatement of the footpath where any existing crossings adjacent to the site are no longer required (such approval is required under the Roads Act 1993). The work shall be done by the Council, unless other arrangements are approved in writing by the Director of Public Works and Services;

64. That during demolition, excavation and building work, the public way shall not be obstructed by building materials or materials from the site in any way;

65. That all loading and unloading of construction materials shall take place off street at all times unless the South Sydney Local Traffic Committee approves an on-street Construction Zone;

66. That stormwater shall not be connected to the sewerage system and shall be disposed from the site in accordance with Council’s standard requirements for stormwater discharge. Stormwater shall not be connected to the sewerage system. All details of stormwater discharge shall be approved by a Council-registered stormwater certifier prior to the approval of the construction certificate;

67. That only clean and unpolluted water shall be permitted to discharge from the subject development/site into Council’s stormwater drainage system, in accordance with Council’s requirements;

68. That the developer/owner shall provide a system of on-site detention of stormwater in accordance with Council’s standard requirements for stormwater discharge. All details of on-site detention and discharge shall be approved by a Council-registered certifier prior to the approval of the construction certificate;

69. That any connection to Council’s stormwater system shall be subject to a positive covenant on the land title. A separate application for works on the public way related to the connection must be made to the Director of Public Works and Services and approval obtained prior to the approval of the construction certificate. The applicant/owner will be responsible for the full cost of the work, payment of fees, lodgement of a security deposit and public liability insurance;

70. That only refuse skips by approved suppliers who comply with Council’s Code for the Placement of Waste containers on the Public Way shall be delivered and placed on the public way (contact Council’s One Stop Shop for a list of approved suppliers);

71. That all excavation, demolition and building work in connection with the proposed development shall only be carried out between the hours of 7.00am and 5.00pm on Mondays to Fridays, and 7.00am and 3.00pm on Saturdays and no work shall be carried out on Sundays or public holidays (where applicable, these restrictions do not apply to the maintenance of site cranes nor the use of mobile cranes which stand and operate from a public road, provided that a permit has been obtained from the Director of Public Works and Services Department for the use of a mobile crane);

72. That all proposed work shall be wholly within the boundaries of the site;

(a) mobile cranes operation from the roadway shall not be accepted as a method of constructing the proposed buildings;

74. That the building/demolition work shall comply with Australian Standard 2436-1981 “Guide to Noise Control on Construction, Maintenance and Demolition Sites”;

75. That the premises shall be ventilated in accordance with the requirements of the Building Code of Australia, AS1668.1 and 2 and Council’s Ventilation Code;

76. That all relevant sections of the BCA shall be complied with;

77. That an application for a construction certificate, with supporting plans, specifications and details demonstrating compliance with conditions of this consent and the Building Code of Australia shall be lodged and no building or excavation work shall be commenced until that application has been approved and at least two days written notice of the intention to commence work has been given to the Council;

78. That the requirements of the Work Cover Authority shall be complied with;

79. That in accordance with the requirements of Clause 34 of the Local Government (Approvals) Regulation, 1993, a person excavating below the level of the base of the footings of a building on an adjoining allotment of land (includes a public road and any other public place) must comply with the following:-

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;

81. That all excavations and backfilling must be executed safely and in accordance with appropriate professional standards;

82. That all excavations must be properly guarded and protected to prevent them from being dangerous to life or property;

83. That a separate garbage/recycling storage area for commercial use shall be provided, detailed in the application for a construction certificate;

84. That the garbage/recycling areas shall make provision for containerisation requirements set by Council’s Waste Services Section;

85. That the storage and handling of garbage and recyclable materials shall comply with the requirements of Council’s Waste Management/Minimisation Facts Sheets;

86. That the garbage/recyclable materials room shall be constructed in accordance with the requirements of Council’s Waste Management/Minimisation Facts Sheets;

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Citations

Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65

Most Recent Citation

Billgergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94

Cases Citing This Decision

2

Wunsch and [Nine] Others v Rockdale City Council [2002] NSWLEC 103

Billgergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94

Cases Cited

1

Statutory Material Cited

1

Meriton Apartments Pty Limited v Minister for Urban Affairs and Planning [2000] NSWLEC 20

CITATION:	Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65
PARTIES:	APPLICANT: Pipheron Pty Ltd RESPONDENT: South Sydney City Council
FILE NUMBER(S):	10673 of 1999
CORAM:	Talbot J
KEY ISSUES:	Development Application :- residential flat building - justification for non-compliance with DCP
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20
DATES OF HEARING:	20/03/2000, 21/03/2000, 22/03/2000, 23/03/2000
DATE OF JUDGMENT:	03/31/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr M G Craig QC SOLICITORS: Mallesons Stephen Jaques RESPONDENT: Mr P J Schofield (Solicitor) SOLICITORS: Pike Pike & Fenwick