Roberts v Pittwater Council
[2009] NSWLEC 1375
•30 October 2009
Land and Environment Court
of New South Wales
CITATION: Roberts v Pittwater Council [2009] NSWLEC 1375 PARTIES: APPLICANT
RESPONDENT
Stephen Roberts
Pittwater CouncilFILE NUMBER(S): 10392 of 2009 CORAM: Dixon C KEY ISSUES: DEVELOPMENT CONSENT :- Construction of a swimming pool LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 30 October 2009 EX TEMPORE JUDGMENT DATE: 30 October 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr G Green (solicitor)
SOLICITOR
Pikes LawyersRESPONDENT
Ms A Rhodes (solicitor)
SOLICITOR
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESDixon C
10392 of 2009 Stephen Roberts v Pittwater Council2 November 2009
This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT
1 The applicant seeks approval to construct a concrete swimming pool at the rear of the dwelling at 29 Ralston Road, Palm Beach. Although initially refusing the application, council now accepts that the proposed amended plans (Issue F dated 28 September 2009) are capable of approval subject to conditions.
2 The parties have asked me to consider the proposed consent orders and the further evidence in respect of the amended plans and determine the matter.
Background:
3 This appeal commenced as an on-site s 34 conciliation conference and that process provided the parties and the residents with an opportunity to discuss the issues and design changes to address their concerns. Although the conference was terminated without a resolution of all of the issues it facilitated an agreement by the applicant to amend the plans.
4 In accordance with the request of the parties I terminated the section 34 conference and agreed to determine the matter with a further hearing. The parties agreed to a timetable for the preparation and notification of the amended plans and the matter has been listed before me today for a final determination of the appeal.
Amended plans
5 At the outset of this hearing the applicant (with the council’s consent) seeks leave to rely on the amended plans Issue F dated 28 September 2009 accordingly the amended plans are substituted in the appeal. As a consequence of that amendment I order that the applicant (as agreed) pay the respondent’s costs in the sum of $10,000 as triggered by s 97B of the Environmental Planning and Assessment Act 1979.
6 The proposed consent orders and draft conditions are supported by a supplementary planning report prepared by Council’s planner Mr Pearson dated 20 October 2009. The report concludes that the amended application with its increased setback to the north, removal of the under croft area of the pool, deletion of the deck, redesign of the stair, relocation and acoustic treatment of the pool filter and the erection of a 600 mm high up stand wall to the northern edge of the pool structure, and the other amendments satisfactorily address the issues raised by the original application.
7 Furthermore, the council submits that the amended design will improve the noise and visual amenity of the neighbours. Despite council’s assessment it asked me (as I am required to do under the Act) to also consider the further evidence of the residents in respect of the amended design.
8 The setbacks to the site boundaries and rear building line (issues of concern to the neighbours at 70, 72 and 74 Pacific Road) addressed by Mr Lovell, the neighbours consultant planner, are according to council’s supplementary report now satisfactorily dealt with by the amended plans and conditions.
9 While the proposal does not comply with the height variation control in council’s DCP because the pool is 250 mm higher than the variation allows, council submits and I accept that the greater rear setback from the northern boundary compensates for this minimal non-compliance with height control. I accept that the objectives of the controls in the DCP are achieved by the amended plans.
10 During the hearing the neighbour at 70 Pacific Road gave oral evidence about his concerns with the amended plans. In particular, he asked me to take into account the acoustic impacts of this development on his family’s’ amenity. I recall visiting his property and others adjoining properties at the onsite section 34 conference and appreciate their setbacks from this development. His evidence was instrumental in the further amendment to the design to include the 600 mm up stand wall along the eastern edge of the structural coping to the pool and acoustic treatment of the pool filter. In my opinion his evidence and the resulting amendments achieve a better amenity and design outcome, as is an objective of council’s controls.
11 Despite the neighbour’s opinion that approval of this application is an overdevelopment of the site he was realistic in his acceptance of the fact that this development is permissible with consent. In the end I believe I understood his concerns and the applicant did try to address them to some degree. The amended application in my view achieves a fair compromise of the applicant and the neighbour’s issues, having regard to the permissibility of the development and council’s controls.
12 Mr Lovell gave oral evidence at the hearing (on behalf the residents at 27 Ralston Road, 70, 72 and 74 Pacific Road) and spoke to his written submissions dated 6 October 2009 and 26 August 2009, which were tendered in councils bundle. I also read the written objections in respect of the original and amended application in council’s bundle.
13 The amendment to include balustrades on the stair access during the hearing at the request of Mr Lovell’s clients is said to further insulate the noise from the development. I cannot accept that this amendment will achieve the desired result, there was no expert acoustic evidence to support this proposed acoustic treatment, however, this is academic because the applicant agreed to the design being changed to accommodate this detail In fact, several of the agreed conditions incorporated in the consent orders reflect design changes suggested by Mr Lovell to address his clients concerns. Most of those changes can be supported on the planning evidence and because the applicant has accepted them I need not comment any further on those issues.
14 I am mindful that the controls in the DCP are a focal point of consideration of this application but they are not determinative. The breach of the DCP controls in respect to height can be supported on the particular constraints of this site. The property at the rear northern boundary of the site is built close to its boundary and given the slope of the land will be impacted on by this pool development. However, with appropriate planting and the setback of 3.5m from that boundary I accept Council’s planning assessment that the impacts on that neighbours are acceptable and do not warrant refusal of the application.
15 Following an assessment in accordance with the relevant provisions in s 79C of the Environmental Planning and Assessment Act 1979, having regard to Pittwater LEP 1993, Pittwater 21 DCP the evidence and submissions, and the draft consent orders and conditions I have determined the application should be approved on the amended plans subject to the agreed conditions.
16 Accordingly, I make orders as follows as reflected in the consent orders filed by both parties:
- (1) The appeal in respect of the land known as No 29 Ralston Road, Palm Beach is upheld by consent.
(2) The development application for a swimming pool submitted to Pittwater Council is determined by the granting of its consent subject to the conditions contained in Annexure A.
(3) The exhibits are returned to the parties with the exception of the draft conditions, which are exhibit 2 and the amended plans, which is Exhibit A.
(4) The Court notes the applicant’s undertaking to pay the respondent the sum of $10,000 in settlement of the costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 on or before 6 November 2009.
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- Susan Dixon
Commissioner of the Court
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Annexure ‘A’
Conditions of Consent
The Development Application has been determined by the granting of consent based on information provided by the applicant in support of the application, including the Statement of Environmental Effects, and in accordance with Plans numbered MLS-5166-1F, MLS-5166-2F, MLS-5166-3F, MLS-5166-4F, MLS-5166-5F and MLS-5166-6F, dated 28/09/09, prepared by Premier Pools; and Risk Analysis and Management Report VT 25833, dated 13th October 2008, prepared by Jack Hodgson Consultants as amended in red (shown clouded) or as modified by any conditions of this consent.
The reason for the imposition of the attached conditions is to ensure that the development consented to is carried out in such a manner as to achieve the objectives of the Environmental Planning and Assessment Act 1979 (as amended), pursuant to section 5(a) of the Act, having regard to the relevant matters for consideration contained in section 79C of the Act and the Environmental Planning Instruments applying to the land, as well as section 80A of the Act which authorises the imposing of the consent conditions.
This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.
Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development.
A. Prescribed Conditions:
1. All works are to be carried out in accordance with the requirements of the Building Code of Australia.
2. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.
4. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:3. Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning & Assessment Regulation 2000. To allow a Principal Certifying Authority or another certifying authority time to carry out critical stage inspections required by the Principal Certifying Authority, the principal contractor for the building site, or the owner-builder must notify the Principal Certifying Authority at least 48 hours before building work is commenced and prior to further work being undertaken.
Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and
b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and
c. stating that unauthorised entry to the work site is prohibited.
- a. in the case of work for which a principal contractor is required to be appointed:
- i. the name and licence number of the principal contractor, and
ii. the name of the insurer by which the work is insured under Part 6 of that Act.
- i. the name of the owner-builder, and
ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.
6. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information.
7. The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.
B. Matters to be incorporated into the development and maintained over the life of the development:
1. The recommendation of the risk assessment required to manage the hazards as identified in Geotechnical Report prepared by Jack Hodgson Consultants are to be incorporated into the construction plans.
2. Screen planting is to be provided, which after three years will, in conjunction with the canopy planting, screen the pool when viewed from the neighbouring properties. Species selection is to incorporate locally native species. This screen planting is to be retained over the life of the development and replaced if any part of it should die or be destroyed or removed.
3. The existing landscaping required to be retained together with any additional landscaping required by this Development Consent is to be maintained for the life of the development.
4. In accordance with Pittwater Councils Tree Preservation Order, all existing trees as indicated in the Survey Plan and/or approved Landscape Plan shall be retained except where Council's prior written consent has been obtained, as trees stand within the envelope of approved development areas. For all other tree issues not related to a development application, applications must be made to Council’s Tree Management Officers.
5. For the life of the development, domestic pet animals are to be kept from entering wildlife habitat areas at all times. Dogs and cats are to be kept in an enclosed area or on a leash such that they cannot enter areas of bushland, unrestrained, on the site or on surrounding properties or reserves. Ferrets and rabbits are to be kept in a locked hutch/run at all times.
6. Over the life of the development all declared noxious weeds are to be removed/controlled in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and controlled. Refer to Pittwater Council website ( ) for noxious/environmental weed lists.
7. No environmental weeds are to be planted on the site. Refer to Pittwater Council website ( ) for environmental weed lists.
8. Any vegetation planted outside approved landscape zones is to be consistent with locally native species or locally native plants growing on site and / or selected from the list pertaining to vegetation community(s) on the site as per the Native Plants for Your Garden book available from Pittwater Council and on the Council website.
9. Any new fencing is to be made passable to native wildlife. As a guideline, hole dimensions should be 150mm wide X 100mm long at ground level spaced at 6 metre intervals.
10. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve.
11. The pool backwash water is to be disposed to the Sydney Water sewer.
12. A 600mm high up-stand wall is to be provided on the northern edge of the structural coping to the pool.
13. All pool overflow water and waste water from the filtration process is to be directed to the sewer when available or to an approved on site disposal system.
14. Noise from the operation of any plant or equipment at the premises shall not exceed 5dB(A) above the background noise level.
15. Pool safety fencing/barrier is to be designed, installed and maintained in accordance with the provisions of the Swimming Pools Act 1992, and the Swimming Pools Regulation 2008, which references AS 1926.1-2007 Swimming Pool Safety, Part 1:Safety barriers for swimming pools.
16. A Warning Notice and Resuscitation Chart containing the wording and information specified in clause 10 of the Swimming Pools Regulation 2008 is to be affixed in a prominent position in the immediate vicinity of the swimming pool and/or spa pool. The signage must be maintained in a clearly legible condition when viewed from a distance of at least 3 metres.
17. The under-side of the pool and the up-stand wall are to be finished in dark and earthy tones, consistent with the colour palette for the locality, as detailed in section D12.3 in Pittwater 21 DCP. A complying colour schedule is to be submitted to Council or the Accredited Certifier with the Construction Certificate Application.
18. The commitments identified in the BASIX Certificate and on the plans or specifications are to be fulfilled and maintained for the life of the development.
C. Matters to be satisfied prior to the issue of the Construction Certificate:
Note: All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted.
1. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, the requirements of Building Code of Australia and satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority.
3. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures .2. The Accredited Certifier or Council must be provided with a copy of plans that a Quick Check agent/Sydney Water has stamped before the issue of any Construction Certificate.
- Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:
1. Protection of site workers and the general public.
2. Erection of hoardings where appropriate.
3. Asbestos handling and disposal where applicable.
4. Any disused service connections shall be capped off. Council is to be given 48 hours written notice of the destination/s of any excavation or demolition material. The disposal of refuse is to be to an approved waste disposal depot.
4. Structural Engineering details relating to the new works are to be submitted to the Accredited Certifier or Council prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.
5. Plans and details demonstrating that the commitments identified in the BASIX Certificate that apply to the construction certificate or complying development plans and specifications are fulfilled.
D. Matters to be satisfied prior to the commencement of works and maintained during the works:
Note: It is an offence to commence works prior to issue of a Construction Certificate.
1. Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.
2. Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.
3. Waste materials generated through demolition, excavation and construction works are to be minimised by re-use on-site, recycling or where reuse or recycling is not practical, disposal at an appropriate authorised waste facility.
4. The site is to be fully secured by a fence to all perimeters to the site to prevent unauthorised access both during the course of the works and after hours.
5. No works are to be carried out in Council's Road Reserve without the written approval of the Council.
7. A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: -6. No skip bins or materials are to be stored on Councils Road Reserve.
- o The builder's name, builder's telephone contact number both during work hours and after hours.
o That no works are to be carried out in Council's Road Reserve without the written approval of the Council.
o That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.
o That no skip bins or materials are to be stored on Councils Road Reserve.
o That the contact number for Pittwater Council for permits is 9970 1111.
8. During site excavation, topsoil which is to be used in later landscape works is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained.
9. When working within the drip line of the trees, hand digging is to occur in sensitive areas. Liaison on a daily basis is to be maintained during the excavation works between the Builder and Arborist. No filling or compaction shall occur over tree roots within the area defined by the outer drip line of the crown. Root protection/ compaction mitigation in the form of planks or metal decking supported clear of the ground fixed to scaffolding is to be installed as required.
10. No storage of building materials or building waste, excavated fill or topsoil storage is to occur within the dripline of trees shown on the approved landscape working drawing(s) as being retained or within protective fenced areas. Drainage is to be arranged such that fill, building materials or contaminants are not washed into protective fenced areas.
11. All works within 5 metres of the existing trees to be retained including pruning, demolition, excavation, civil works, fencing and the like must be carried out by hand under the supervision of an experienced and qualified Arborist. Should roots larger than 50mm be encountered all excavation works are to cease immediately and a qualified Arborist is to advise on the impacts of the roots removal on the tree's survival and report to the Principal Certifying Authority prior to works recommencing. If tree roots are present a pier and beam method of footing construction is to be adopted so as to bridge/span any identified lateral roots.
12. A stamped copy of the approved plans is to be kept on the site at all times, during construction.
E. Matters to be satisfied prior to the issue of Occupation Certificate:
Note: Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.
Note: It is an offence to occupy the building or part thereof to which this consent relates prior to the issue of an Occupation Certificate.
1. An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent.
2. Deleted by consent
3. The pool filter box shall be enclosed in an acoustically treated structure and a qualified acoustic engineer is to certify that the maximum noise level associated with the pool filter does not exceed 5dB(A) above ambient background level, when measured from any adjoining premises.
4. Certification is to be provided that the commitments identified in the BASIX Certificate have been fulfilled.
F. Matters to be satisfied prior to the issue of Subdivision Certificate:
Nil.
G. Advice:
1. Electrical insect killing light devices should not be used outside and not installed anywhere that they can attract and kill micro-bats.
2. Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation.
3. The applicant is also advised to contact the various supply and utility authorities, ie Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.
4. It is the Project Managers responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with the Principal Certifying Authority. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent the Principal Certifying Authority issuing an Occupation Certificate.
5. In accordance with Section 95(2) of the Act, this consent will lapse if the development, the subject of this consent, is not commenced within 2 years after the date from which this consent operates.
6. NOTE: Council may be prepared to consider an extension of this Consent period for a further 12 months, however, the request for extension would have to be received during the initial 2 year period.
7. To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).
8. Should any of the determination not be acceptable, you are entitled to request reconsideration under Section 82A of the Environmental Planning and Assessment Act, 1979. Such request to Council must be made in writing, together with appropriate fees as advised at the time of lodgement of such request, within 1 year from the date of determination.
9. If you are dissatisfied with this decision, Section 97 of the Environmental Planning and Assessment Act, 1979, gives you a right of appeal to the Land and Environment Court within 12 months of the date of endorsement of this Consent.
_______________________10. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Waters sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to the web site at then see Building Developing and Plumbing then Quick Check, or telephone 13 20 92.
Susan Dixon
Commissioner of the Court
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