S and R Properties Pty Limited v Ashfield Council - [2004] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION: S & R Properties Pty Limited v Ashfield Council [2004] NSWLEC 143

PARTIES:
APPLICANT
S & R Properties Pty Limited
RESPONDENT
Ashfield Council

FILE NUMBER(S): 10061 of 2003

CORAM: Watts C

KEY ISSUES:
Development Application :- Mixed use retail/residential development application
Relationship between the proposal and 'Darrell Jackson Gardens'
Relationship between the proposal and No 123A Smith Street and whether or not the proposal would unnecessarily detract from the heritage values of that house
Relationship between the proposal and No 13 Hardie Avenue and whether or not the proposal would cause unreasonable overshadowing and loss of privacy
Whether or not the proposal should have been designed with an active northern frontage and should have maintained and enhanced the vista along the northern elevation
Whether or not there would be unreasonable conflict in Hardie Avenue with ehicular traffic entering and leaving the main car park and motorists using the 90 degree parking opposite
Whether or not semi trailers would be likely to use the proposed loading dock and the impact on traffic in Smith Street
Whether or not there would be adequate internal residential amenity and whether or not there would be effective overdevelopment of the site
Whether or not the design incorporating an arcaded passageway is appropriate the desirability of an arcade v northern walkwayand internal steps at the shop entrances
Whether or not there would be sufficient retail car parking
Owners' and development consent to the proposed drainage diversion.

LEGISLATION CITED: Ashfield Local Environmental Plan 1985, (ALEP)
Draft Ashfield Local Environmental Plan 1985
(Amendment 100), (Amendment 100)
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)
Draft State Environmental Planning Policy No 66 - Integration of Land Use and Transport, (Policy package)
State Environmental Planning Policy No 32 Urban Consolidation (Redevelopment of Urban Land), (SEPP32)

CASES CITED:

DATES OF HEARING: 03/11/03-07/11/03 and 08/03/04-09/03/04

DATE OF JUDGMENT: 03/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M G Craig, QC
instructed by Mr R J Wilcher, solicitor
for Baker & McKenzie
RESPONDENT
Mr J A Ayling, SC
instructed by Mr P M Jackson, solicitor
for Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10061 of 2003

Watts C

19 March 2004

S & R Properties Pty Ltd

Applicant

v

Ashfield Council

Respondent

Judgment

Environmental Planning and Assessment Act 1979,

Environmental Planning and Assessment Act 1979

The land
5 The land is situated southern side of the western railway line within the Summer Hill shopping centre about 180m from the Summer Hill railway station and has good access to public transport.
6 The land is ‘L’ shaped with a frontage to Hardie Avenue of 53.64m, to Smith Street of 30.5m. The 93.1m western boundary of the land adjoins ‘Darrell Jackson Gardens’ and the northern boundary is about 61m, giving an area of 4,469m2.

Title Description	Address	Size
Lot 1 DP 1018057	Nos 1-11 Hardie Avenue	3,621m2	Supermarket; bottle shop, butcher and bakery.
Lot C DP 347563	No 123A Smith Street	848m2	Two-storey residence.
Total Site Area	4,469m2

Urban structure and built form

Topography
9 The shopping centre falls to the south from the railway line to about the mid point of Lackey Street and then rises to the southwest. The land is located in a broad gully running from the adjoining ‘Darrell Jackson Gardens’ from the northwest to the south east of the land.

Surrounding land use
10 Nearby land uses include:

‘Darrell Jackson Gardens’ to the west and northwest. A walkway along the northern boundary of the land links Hardie Avenue and the car park with the Gardens.
A NSW Ambulance facility to the north of the land within a special uses zone separated from the subject land by the park and the walkway linking the park to Hardie Avenue.
A three-storey industrial building built to the Hardie Avenue frontage to the north east of the land with a street wall height of about 12m.
To the south are two-storey semi-detached terraces at Nos 13-15 Hardie Avenue, within Zone No 3(a) (General Business).
To the east of No 123A Smith Street is a row of two-storey shops fronting Smith Street.
The Hardie Avenue car park to the west of the land and a public plaza on Lackey Street. A marked pedestrian walkway links the car parking area and plaza to the entry to the existing supermarket on the land.

Streetscape character

Background

The supermarket consent
12 In 1979, the council granted development consent (No 1945) to the construction of a single-storey supermarket and two shops at Nos 1-9 Hardie Avenue (a major part of the land). This involved land swaps with the council and the construction of the car park currently located to the east of the site.
13 Car parking for the development was met by way of a restrictive covenant in the following terms:

The Transferee covenants with the Transferor that the ground level stratum of the said land shall not be used or permitted to be used for any purpose other than that of a Car Park for the public free of charge provided that this restriction shall not prevent the Transferee from using the air space at a height greater than a reduced level of 22.2 metres on Australian height datum for any other purpose. The land to which the benefit of the restriction shall be appurtenant is the land in the following Certificates of title: Vol 588, Fol 39, Vol 568, Fol 136; Vol 3463, Fol 44; Vol 5473, Fol 44; Vol 10899, Fol 107, Vol 10899, Fol 108.

Supermarket additions
15 Development consent No 439/99 issued by the council in May 2000 allowed construction of a single-storey shop at No 11 Hardie Street to be used by Liquorland attached to the adjoining supermarket and upgrading of the façade of the supermarket. This current consent has not been implemented.

Mixed use development
16 On 27 September 2002 development application No 348/ 2002 was lodged for a mixed use redevelopment of the land involving a supermarket and specialty shops, 44 residential apartments, underground car parking and restoration works to the dwelling at No 123A Smith Street. This application was refused by the council at its meeting of 21 January 2003.

Relevant planning controls

Ashfield Local Environmental Plan 1985, (ALEP)
17 Under the provisions of the ALEP the land is zoned Zone No 3(a) (General Business), and the proposal, defined as a ‘mixed development’, is permissible with consent.
18 The objectives of the ALEP are to:

(a)

promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment, and

(b)

retain and enhance the identity of the Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield (now listed as part of the National Estate).

…development that results in the existence of a dwelling, dwelling-house or residential flat building on the same allotment of land within a business zone as a building used or intended to be used for another purpose permitted in that zone, whether or not the dwelling, dwelling-house or residential flat building:

(a)

is attached to that building, or

(b)

is used in conjunction with any other use permitted in the zone.

The Council must assess and take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.

Map Ref No.	Address	Heritage Item
77	Henson Street, corner Smith Street	St Andrews Anglican Church and Church Hall
99	Nos 160-162 Smith Street	Group of two matching free standing houses
256	Nos 154-156 Smith Street	Group of two houses
88	No 2 Moonbie St, corner Smith St	Summer Hill post office
255	Nos 132-134 Smith Street	Flats and shops
254	Nos 112, 114, 116-122 and 124 -128 Smith Street	Three groups of shops with dwellings above
98	No 139 Smith Street	Strata title units
97	No 133 Smith Street	Lethington Community Centre, with former stable block
253	Nos 109 Smith Street__	Former shop with dwelling above
202	Corner Lackey Street and Carlton Crescent	Summer Hill hotel
203	Nos 1, 3 and 5 Lackey Street
290	Nos 2-4 Lackey Street	Weir's Building
204	Nos 16, 18 and 20 Lackey Street	Three shops with dwellings
142	Carlton Crescent	Summer Hill railway station
143	Carlton Crescent	Summer Hill railway station -booking office

Draft Ashfield Local Environmental Plan 1985 (Amendment 100), (Amendment 100)
26 The council resolved on 1 October 2002 to prepare and publicly exhibit a draft amendment to the ALEP relating to the Summer Hill Urban Village Centre (Amendment 100).
27 Amendment 100 was adopted by the council at its meeting on 10 December 2002 and was forwarded to the Director General of Planning NSW who advised that she cannot recommend proceeding with the making of that amendment. Mr Brindle considered that the making of draft Amendment 100 in its present form is therefore not imminent.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)
28 The principal aim of SEPP65 is to improve the design quality of residential flat development in NSW through the orderly design of new buildings based on improving the economic, cultural, environmental and social benefits of development. SEPP65 is structured so as to allow the assessment of residential development to which SEPP65 relates to conform to a set of design elements and guidelines.
29 SEPP65 applies where buildings comprise or include three (3) or more storeys and four (4) or more self-contained dwellings. SEPP65 applies to the land and the proposal.

Draft State Environmental Planning Policy No 66 - Integration of Land Use and Transport, (Policy package)
30 The policy package, prepared by planningNSW (now Department of Infrastructure Planning and Natural Resources) in association with Transport NSW and the Roads and Traffic Authority, applies to all urban areas throughout NSW (primarily the Sydney Greater Metropolitan Region), and has been developed with the primary aim of reducing car dependency and providing more equitable access to jobs and services.
31 The policy package has been prepared in order to implement strategies and achieve the aims identified in earlier strategies including Shaping Our Cities (the metropolitan planning strategy for the Greater Metropolitan Region of Sydney), Action for Air (the State government's air quality management plan), Action for Transport 2010 (the NSW transport plan), and the National Greenhouse Strategy. Further, the policy package aims to achieve a range of social, environmental and economic goals including equity, improved neighbourhood amenity and lower road congestion.
32 The policy package aims to:

ensure that urban structure, building forms, land use locations, development designs, subdivision and street layouts help achieve the following planning objectives:

(a)

improving accessibility to housing, employment and services by walking, cycling, and public transport,

(b)

improving the choice of transport and reducing dependence solely on cars for travel purposes,

(c)

moderating growth in the demand for travel and the distances travelled, especially by car,

(d)

supporting the efficient and viable operation of public transport services,

(e)

providing for the efficient movement of freight.

State Environmental Planning Policy No 32 Urban Consolidation (Redevelopment of Urban Land),

(SEPP32)

(a)

To promote the orderly and economic use and development of land by enabling urban land which is no longer required for the purpose for which it is currently zoned or used, to be redeveloped for multi-unit housing and related development;

(b)

to implement a policy of urban consolidation which will promote the social and economic welfare of the State and a better environment by:

locating housing in areas where there are existing public infrastructure transport and community facilities,

ii.

increasing opportunities for people to live in a locality close to employment, leisure and other opportunities,

iii.

the reduction in the rate at which land is released for development on the fringe of existing urban areas.

(a)

to ensure that urban land suitable for multi-unit housing and related development is made available for that development in a timely manner; and

(b)

to ensure that any redevelopment of urban land for multi-unit housing and related development will result in:

an increase in the availability of housing within a particular locality; or

ii.

a greater diversity of housing types within a particular locality to meet the demand generated by changing demographic and household needs.

Summer Hill Urban Village Centre Development Control Plan, (UVDCP)
35 When the original development application was lodged on 1 December 2002, a previous DCP was operating, [Note: Exhibit 18]. The UVDCP was adopted 11 December 2002 and the main difference is that two new objectives have been included. A height control of generally 7m and for sites greater than 1,000m2 car parking should be below ground level has been included.
36 Under cl 4.0 of the UVDCP the objectives are, [Note: Exhibit 3 p 4]:

(a)

to maintain and enhance the existing character and identity in other Summer Hill commercial precinct so as to promote business activity, including after-hours activities such as restaurants and cafes.

(b)

To retain the identified heritage values and achieve a heritage related theme of the precinct.

(c)

To encourage conservation of individual heritage items.

(d)

To ensure that new development is of the design, scale and finish that is appropriate to the precinct.

(e)

To encourage improvements in the public environment, including pedestrian safety in circulation.

(f)

To ensure that new development is of the design and scale that will enhance dominant distances from the precinct.

(g)

To improve safety through the provision of adequate lighting and appropriate building design and landscaping.

(h)

To provide land owners, purchases and developers with development guidelines to assist in enhancing the appearance and viability of the shopping centre.

(i)

To ensure that new development is of a scale, which is sympathetic to the predominant two-storey height and predominant parapet and facade height of the precinct.

(j)

To provide residents and shopkeepers of Summer Hill with certainty and ensure that the Village character is retained.

In this clause;

“height” in relation to a building means the greatest vertical distance (expressed in metres) of the natural ground level surface of the site on which the building is to be erected as located on its boundaries, and the ceiling of the topmost floor of the building at that point calculated as follows:

by measuring 7m height at the street boundary of the site, and drawing in section, a line to the midpoint of the site; and
by measuring a 7m height at the rear boundary of the site and drawing in section, a line to the midpoint of the site.
“Parapet or facade height” means the greatest vertical distance measured in metres between any point of the natural ground level surface of the site on which the building is to be erected, and the finished height of the topmost part of the building fronting the street.
This clause must be read in conjunction with the explanatory height diagram showing in schedule 3.

The maximum height to which a building may be erected on land to which this clause applies shall be 7.0 metres at the property boundary, and extending into the site in accordance with clause 1 and Schedule 3 diagram.

The maximum parapet of facade height to which a building may be erected on land to which this clause applies shall be 9.0 metres.

the maximum number of storeys to which a building may be erected on land to which this clause applies, shall be two-storey is excluding any basement carpark level that is entirely below natural ground level.

The entire ground floor of a building erected on land to which this clause applies, shall be occupied by non residential users, except for that part of the land required for loading and unloading areas, driveway areas and car parking.

(a)

In determining the building height, consideration and shall be given to maintain investors to dominant landscapes, such as St Andrew's Church spire including the views to the spire indicated on the map in Schedule 2.

(b)

New development shall not unreasonably restrict access to some light on adjoining properties or public areas, including surrounding streets.

(c)

Where development adjoins residential zoned land or open air commercial premises, it is to be designed to allow the daily minimum of four hours direct sunlight to adjoining windows and open spaces at midwinter; and protect adjoining windows and open spaces from overlooking, loss of privacy and unreasonable transmission of noise.

Access Adaptability and Mobility Development Control Plan,

(ADCP)

The proposal and its history
40 Development application No 434/2002 was lodged with the respondent council on 1 December 2002 to demolish the existing supermarket and shops and the rear section of the dwelling on No 123A Smith Street, to erect a mixed use retail/residential development, comprising basement car parking, a ground floor retail level incorporating a supermarket and associated smaller shops and two upper levels of residential apartments at Lot 1 in DP 1018057, known as Nos 1-11 Hardie Avenue, and Lot C DP 347563, known as No 123A Smith Street, Summer Hill. It is also proposed to subdivide the land to create a separate lot for the dwelling on No 123A Smith Street.
41 It is proposed to erection of a ground floor of retail, with thirty-six (36) dwellings above, a basement of 121 car parking spaces, alter the dwelling house ‘Hawthorn’ at 123A Smith Street, provide on-site detention, landscaping; earthworks and associated services diversions and connections, and remove trees. A two-storey block, with lift, is proposed at podium level comprising eight (8) apartments, accessible and adaptable for the use of the disabled.
42 Roofs are proposed to be either gable or hip form pitched at 34 degrees. Shutters to balconies and outdoor areas would be provided to shield the less desirable west and east sun.
43 The proposal is described in architectural plans prepared by Prescott Architects and Mr Brindle the town planner for the applicant stated that the architect has sought to:

Achieve a height, scale and bulk complementary to the neighbouring buildings and the existing shop front facades on Lackey Street.
Reflect the building forms of the surrounding context including the shop front facades of the Lackey Street shops, and terraces, roof forms (without replication or pastiche).
Minimise mass, overshadowing, overlooking.
Preserve vistas and create a building form that does not dominate the precinct.
Create an attractive and humanised interface at pedestrian and street level to the retail and park frontages.

Notification
45 The application was notified to nearby owners and occupants and a summary of those objections was presented in the Town Planners Report to Council dated 28 April 2003. Those grounds for objection have been addressed in the evidence and insofar as they relate to the issues in dispute have been addressed.

The council’s decision
46 When the Class 1 application was filed the council had not formally determined the application.

The hearing
47 The appeal was filed on 20 January 2003 against a deemed refusal.
48 At the hearing the court heard evidence on behalf of the respondent council from:

Mr H M Sanders, consultant town planner [Note: Exhibit 9: statement of evidence];
Mr S Rizzo, resident of No 13 Hardie Avenue, Summer Hill, Architect, [Note: Exhibit 4: Vol 1 Fol 42 together with statement 31 October 2003];
Mr M A Johnston, resident of Dover Street, Summer Hill, [Note: Exhibit 4: Vol 1, Fol 34 and 100];
Ms L M Overton, resident of No 263 Grosvenor Street, Summer Hill, [Note: Exhibit 4: Vol 1 Fol 27and 135];
Mr K N Poulsen, resident of No 5 Lindsay Avenue, Summer Hill, [Note: Exhibit 4: Vol 1 Fol 49 and 54];
Professor P J Crittenden, resident of No 21 Rosemount Crescent, Summer Hill. [Note: Exhibit 4: Vol 1 Fol 65]
Mr R B Beamish, resident of No 8 Rosemount Avenue, Summer Hill, [Note: Exhibit 4: Vol 1 Fols 59-60];
Mr G Vickas, consultant architect, [Note: Exhibits 10 and 11: statement of evidence and supplementary reply];
Mr T Lawrence, traffic engineer, [Note: Exhibit 13: statement of evidence];
Ms G T Newling, town planner, on behalf of the Summer Hill Community Centre Management Committee, [Note: Exhibit 24: statement of evidence];
Mr P J Parker, consulting engineer, [Note: Exhibit 13: statement of evidence].

Mr D Brindle, consultant town planner, [Note: Exhibit E: statement of evidence];
Professor R G Mackay, heritage consultant, [Note: Exhibit G; statement of evidence, and Exhibit H: heritage assessment];
Professor P Droege, urban designer, [Note: Exhibit J: statement of evidence]

The issues

1. Whether the height, bulk, scale and architectural design of the proposed development when viewed from Darrell Jackson Gardens and the right of footway to the northern side of the site is unacceptable and visually obtrusive.

2. Whether the proposed development is inconsistent with the aims and objectives of draft Local Environmental Plan 100 in that it exceeds the maximum floor space ratio imposed by the plan of 1:1 by the proposed floor space ratio of 1.33:1.

3. Whether the proposal provides sufficient setbacks from the northern and western boundaries to provide a substantial transition zone of deep soil planting between Darrell Jackson Gardens and the right of footway along the northern boundary of the site.

4. Whether the lack of appropriately landscaped setbacks results in a development, which will have an adverse impact on the amenity of the Darrell Jackson Gardens and the right of footway.

Whether the proposed landscape design for the entire development can be achieved and maintained.

Particulars: The proposal exhibits significant inadequacies in relation to the purported landscape scheme and its reasonable reconciliation with the architectural plans.

6. Whether the proposed development represents an overdevelopment of the site having regard to the matters in issues 1, 2, 3 and 4 above.

Whether the proposed development complies with the objectives of the

Particulars: The proposal will not promote the orderly and economic development of the local government area of Ashfield in a manner consistent with a need to protect the environment and the development will not enhance the identity of Summer Hill as derived from its role as an early residential suburb.

Whether the proposed development satisfies the aims and objectives of State Environmental Planning Policy No 65.

Particulars: The proposal fails to adequately respond to the Design Quality Principles of Part 2 namely context, scale, built form, security, landscape and aesthetics.

The scheme fails to meet the applicable standards of the BCA and AS1428 with regard to the provision of access facilities and car parking for people with a disability. The areas of concern include:
(i) the provision of compliant accessible toilet facilities within the proposed development;
(ii) the provision of compliant car parking spaces and their efficiency in terms of location, maneuverability, size and slope;
(iii) the provision of continuous parts of accessible travel within the basement and from the basement to the ground floor and into and out of the shops;
(iv) the provision of adaptable and accessible units.

The proposed development does not provide adequate toilet facilities for the public and staff of the proposed development in accordance with the provisions of the BCA and in this regard whether sufficient toilet facilities can be provided in the design and a subsequent construction certificate stage without necessitating substantial changes that will be inconsistent with the form, configuration and associated impacts of the proposed development.

The proposal presents inadequate security and access arrangements for the residential apartment component due to evident after-hours security conflicts with the retail component in particular in relation to the retail activities of the central arcade.

The proposal exhibits in adequate functional performance characteristics of retail spaces with regard to general pedestrian and total ( ie disability) accessibility.

The scheme exhibits major pedestrian safety inadequacies in the north-eastern corner of the site where proposed pedestrian activities conflict with existing particular right-of-way circumstances.

The internal amenity of future occupants is poor.

9. Whether the proposed development contravenes the objectives and requirements of the Development Control Plan for Summer Hill Shopping Centre and the Development Control Plan for the Summer Hill Urban Village Centre.

10. Whether the proposed arcade pedestrian link between Hardie Avenue and Darrell Jackson Gardens is unsatisfactory due to safety concerns, overshadowing of this area, poor urban design as a public domain and the unacceptable relationship with the adjoining public children's playground in the Darrell Jackson Gardens.

11. Whether the proposed entry/ exit point of Hardie Avenue to the basement car park of a mixed development will cause direct conflict with each other movements to and from councils car park on the eastern side of Hardie Avenue.

12. Whether the proposal has adequate parking provision to cater for the retail component of the proposed development.

13. Whether the basement car park complies with AS 2890.1.

14. Whether the proposed loading dock area including the driveway complies with capital AS 2890.2 (2002) and whether a single unit 11 m truck is the appropriate design vehicle.

15.

Whether the proposed development will have an adverse impact on traffic and car parking in the vicinity of the proposed development due to the in adequate provision of car parking loading/unloading facilities and lack of works to ameliorate the impacts on adjoining roads and public car park.

16. Deleted.

17.

Whether the proposed re-the subdivision of the land is acceptable.

Particulars: the restart division allotments for 123 Eighty Smith St. significantly reduces the original lot size of this property resulting in insufficient curtilage for the property which has been identified as a draft heritage item.

18.

Whether the proposed development makes unacceptable visual and amenity contribution to the period streetscape integrity and heritage significance of Smith St in the immediate vicinity as an important historic boulevard leading into the town centre, and with particular regard to the proposed loading dock driveway entrance, loading dock structure, various infrastructure and utility works, residential apartment complex above and western boundary treatment.

Particulars: Smith Street is an important local road leading into the town centre that exhibits substantial period residential and civic character and streetscape qualities that will be substantially and detrimentally impacted both visually and in terms of function and public safety by the proposed development, and in particular by way of the inclusion of the loading dock facility on the southern side. In this regard, the pre-existence of loading dock facilities in the same location is an historical mistake that should not be retained within the proposed development.

The proposal will adversely impact upon the heritage significance of 123A Smith Street re BCA in fire safety works and proposed site access to residential development.

19.

Whether the amenity of chic sure occupants of 123A Smith Street, Summer Hill is inadequate.

Particulars: the proposed rear yard area of 123A Smith Street is inadequate for the size of the dwelling to be retained on the site. The rear yard will be overlooked by the proposed residential unit development and due to the lack of deep soil planting areas, this overlooking cannot be mitigated by adequate screen planting.

20. Whether the proposed development will have an unacceptable impact upon the amenity of 13-15 Hardie Ave., Summer Hill, concerning visual bulk, overlooking and overshadowing.

21. Deleted.

22. Deleted.

23.

Whether the proposed development as amended is accompanied by adequate plans that are technically competent and consistent.

Particulars: width of service corridors is inadequate; the height of the brush box fencing to courtyard as shown on DA2002 is different to landscape plan; trees shown on DA 3000 two western elevation do not exist on-site; the finished floor levels of the basement parking and proposed retail users still respond to only a proposal, even though the constraints which gave rise to those floor levels has been resolved: the pre-amended the proposal was restrained by the Sydney water channel which bisected the site. This gave rise to the then nominated floor to ceiling heights in the basement car park. The extent of excavation and number and layout of car spaces which could be achieved at basement level having regard to this constraint. The increase in the height of the slab to the supermarket level which resulted in steps to the proposed shopping at the Hardie Avenue frontage. The amalgamation of shops at their Hardie Avenue frontage to create one tenancy in size to address the provision for disabled access to those shops from the arcade, having regard to the new steps. Variable finished floor levels of the arcade. Variable levels and steps to the shop entrances of the arcade. Variable levels and steps to the shops from the colonnade area adjacent to the rider carriageway.

Having regard to resolution of the constraint, mainly the relocation of the Sydney Water channel, there is no reason why: additional car parking cannot be achieved at basement level to address the shortfall in parking. The floor levels in the arcade cannot be at grade. There needs to be steps from Hardie Avenue to the proposed shopping at that Street frontage. There needs to be steps to the shops in the arcade. There needs to be steps from the rear of the shops at the interface of the proposed colonnade.

24.

Whether there is a need to lodge a separate development application in respect of the works to the undertaken in association with the relocation of the Sydney Water stormwater channel which bisected the development site.

Particulars: The amended drainage concept drawings indicate that works will need to the undertaken in connection with the reconstruction of the Sydney Water stormwater channel on land, which does not form part of the application of the consent. Those works will be undertaken on the adjoining Darrell Jackson Gardens, which is council owned land to the north and within Hardie Avenue. The documents submitted by the applicant in support of the relocation of the drainage channel do not show the extent and detail of the work nor the land, which will be required of the site to complete the drainage works.

25.

Whether the proposed development is in the public interest and matters raised by the objectors.

Relationship between the proposal and ‘Darrell Jackson Gardens’;
Relationship between the proposal and No 123A Smith Street and whether or not the proposal would unnecessarily detract from the heritage values of that house;
Relationship between the proposal and No 13 Hardie Avenue and whether or not the proposal would cause unreasonable overshadowing and loss of privacy;
Whether or not the proposal should have been designed with an active northern frontage and should have maintained and enhanced the vista along the northern elevation;
Whether or not there would be unreasonable conflict in Hardie Avenue with vehicular traffic entering and leaving the main car park and motorists using the 90 degree parking opposite;
Whether or not semi-trailers would be likely to use the proposed loading dock and the impact on traffic in Smith Street;
Whether or not there would be adequate internal residential amenity and whether or not there would be effective overdevelopment of the site;
Whether or not the design incorporating an arcaded passageway is appropriate, the desirability of an arcade v northern walkway and internal steps at the shop entrances;
Whether or not there would be sufficient retail car parking; and
Owners’ and development consent to the proposed drainage diversion.

The evidence and findings
52 Mr Craig submitted on behalf of the applicant, that the Court should have regard for the physical and planning background to this development.
53 Mr Ayling did not demure in this summary but sought to emphasise different aspects in his submissions and stressed the importance of SEPP65 in the consideration of this application.
54 Mr Craig summarised the physical parameters as being:

The land is located within an inner-city urban environment where it might be expected, consistent with state government and council policy, that higher densities exist and be planned for when compared with planning regimes in outer urban areas. Close proximately to good public transport would further reinforce the need for higher densities on the subject land;
The proposal, as an ‘infill’, is not for the development of ‘green fields’ and regard has been had for urban consolidation and to that end the proposal incorporates a residential component above retail. Despite this little change has been made to the existing retail floor space on the land;
The proposal would form a built edge to Darrell Jackson Gardens on land within the Business 3(a) zone.
The proposed heights would be similar to those of other buildings in the vicinity. [Note: Exhibit E p 17 Mr Brindle’s statement of evidence].

The land is zoned Business 3(a) and under the provisions of cll 39B and 40 of the ALEP, inserted in the last decade, mixed development to a maximum FSR of 1.5:1 is authorised;
As was confirmed by the town planners who calculated that the FSR would be in the range of 1.22:1 to 1.4:1, [Note: Exhibit 23: Joint report Messrs Brindle and Vickas of 4 November 2003] the proposal would be consistent with the FSR provisions of the ALEP:
The DCP for Summer Hill shopping centre was adopted 15 August 1995, [Note: Exhibit 18] and was in place when the application was lodged. The Amendment No 1, UVDCP, adopted 11 December 2002 now applies to the land, [Note: Exhibit 3]. In the latter document cl 7.1.2 has the objective to retain a consistent scale when viewed from the main street, to achieve a sympathetic relationship between buildings, [Note: Exhibit 3 pp 7-8]. Buildings should not step back at street level and should maintain a continuous street alignment, [Note: Exhibit 3 p 8];

The council in preparing Amendment 100 sought to revert to the UVDCP limit on the height of buildings and to remove the FSR bonus of 0.5:1, [Note: Exhibit 3]. The Deputy Director General in a letter to the mayor dated around July 2003 indicated that in its present form Amendment 100 is unlikely to be made, because of the need to locate residential development close to rail, and the two storey/ 7m height would not allow flexibility in design, [Note: Exhibit Z]. The Minister Assisting the Minister for DIPNR in a letter dated 1 October 2003 expressed the same concerns [Note: Exhibit Z]. In its current form the Amendment 100 is inconsistent with the DCP and cannot carry weight. The council cannot seek to limit the FSR to 1:1 and impose a 7m height against the planning authority’s views.

Relationship between the proposal and Darrell Jackson Gardens
57 Mr Craig submitted there are strong views in favour of the present infill proposal and on the basis of the evidence of Professor Droege, there is no basis for saying the impact on the park would be intrusive, [Note: Exhibit J pp 4-5]. Also Professor Mackay applauds the design [Note: Exhibit G p 25] and the Court would be satisfied with this evidence in support of the application.
58 Mr Ayling submitted that this is the primary merit issue in the case and there is a need for any development “…to address the park”, and to improve the relationship with Darrell Jackson Gardens. He accepted that the existing building provides a “hard edge” but he submitted that the proposed podium wall would be more extensive, higher and rectangular than the existing. He submitted that it would be horizontal and monumental in form, on the boundary and provide the “…hardest of hard edges”. He submitted that the council contested the applicant’s contention that the proposed boundary wall would be articulated. He submitted that the ‘articulation’ would be limited to two small planter boxes with trees.
59 He further submitted that the proposed Sydney sandstone treatment of the podium wall would be likely to attract the eye and make the proposal appear even more imposing. He continued that the residential building above would have a two-storey appearance and pointed to the evidence of Messrs Sanders and Vickas who unlike Professors Mackay or Droege considered this to be other than a ‘sensitive relationship’ to be achieved.
60 He submitted that the proposal should be setback from Darrell Jackson Gardens “…to give some relief”.
61 Mr Craig submitted that the applicant considers that it is not reasonable to extend the open space onto the land as this might create a ‘no-mans land’. He continued that it is acceptable to erect the proposed western wall, on the boundary, where the existing supermarket wall presently stands.
62 It is proposed to erect the ground floor retail component of the proposal with a nil setback to the western boundary of the land, to a height of around 3m-3.5m above the natural ground level. Erected above the podium, would be mostly single-storey town houses, with attics in the roof, setback around 2m and 2.5m from the edge of the podium on the western side. Assessment of both the proposed setbacks and height is required to consider the relationship with the gardens.
63 Mr Brindle prepared a table of comparative building heights, near the land, in the Summer Hill shopping centre, south of the railway line. These buildings range from single-storey to three-stories in height and he concluded that the proposal would be consistent with the height of these buildings, both in terms of overall height and the number of storeys.

Building proposal	Height to Australian height datum AHD
Townhouses fronting Hardie Avenue east	30.08m
Townhouses fronting Darrell Jackson Gardens west	31.27m - 32.97m
Townhouses fronting the footpath north	30.7m
Central apartments	31.74m
No 123A Smith Street – existing house	31.93m
No 72 Carlton Crescent – three-storey industrial building	32.55m
No 74 Carlton Crescent - Ambulance building	33.14m
No 69 Carlton Crescent industrial building	34.22m
Summer Hill hotel corner Lackey Street and Carlton Crescent	35.73m
Nos 160 to 168 Smith Street - residences	35m - 41m

The proposed development is compatible with the scale of other buildings in the vicinity in terms of height and form when viewed from …the Gardens. The bulk of the building from th[is] viewpoint is totally acceptable with the building bulk reduced by the integration of the upper level into the roof form, the facades clearly expressed as separate units with a regular rhythm, the variation in plan and the variation in materials and colours.

The architectural design in terms of form, detailing and materials is totally appropriate for this infill development.

From the perspective of Darrell Jackson Reserve, the apartment buildings will read visually as a built form of substantial bulk. However, this effect has been reduced by architectural treatments, including changes in setback and roofline to break up the perception of a single built form.

I have not done what is needed to assess that. No reason to suggest that it would impact and could be for the better.

From an urban design perspective there is no basis for this statement [see Issue 1]. The design has managed the four cardinal faces of the site exceedingly well. All faces sit within the general urban profile of the setting, and in terms of overall height, do not challenge the prevalent height regime, as it ranges widely and crests well above the proposal’s maximum height.

The façades are rhythmically structured in both the horizontal and vertical direction, utilising familiar built elements such as plinths, windows, walls, balconies and rooflines, congenial colours and materials, as well domestic and civic sculptural elements such as the frontal terrace or villa-like silhouettes…

…the proposed development will now appear even more pronounced, harder and more physically overbearing on the landscape character of the adjoining park. The amendments only act to further reinforce how important it is for this side of the development to incorporate a much-needed setback and transitional landscape buffer. It is evident that the park has already suffered badly in recent years from intrusive and degrading built form, and the proposed development (with its zero lot setback and three storey scale) will only undermine the remaining landscape integrity of the park. In these circumstances, I do not believe that any amount of architectural detailing can make up for the absence of a softening landscape buffer.

In my opinion, the changes brought on by the amended application only act to worsen the urban design characteristics of the proposed development and its critically important visual and operational relationships on each of the four sides of the public realm interface.

Walls facing parks need to be handled with care. The author [here has] created a wall that is not too prominent, segmented, with different materials and layered horizontally with balustrades and gables of the residential areas. [The western side of the proposal is] segmented longitudinally and horizontally. [It is an honest] indication of what is inside, such as shops. [It is an] acceptable interpretation of a wall

Relationship between the proposal and No 123A Smith Street and whether or not the proposal would unnecessarily detract from the heritage values of that house
75 Mr Craig submitted that this dwelling is recognised as serving as a reminder of the past and is not a local heritage item. It stands in a commercial zone and he submitted that zoning would sanction any impacts. It is impacted upon by the present use of adjoining land and would be impacted to a lesser extent by the new works.
76 Mr Ayling submitted on behalf of the council that there are external and internal amenity impacts of the proposal on this building and together these would be a reason for refusal of the application. He submitted that with the incorporation of No 123A Smith Street in the site, that property would lose its “substantial rear yard”. He submitted this rear curtilage would be inadequate to serve the recreational needs of the occupants of that building. The amenity of the rear courtyard space would be downgraded by being overlooked and would be impacted by trucks using the loading dock on the western side. He submitted it would not be a high quality outcome.
77 Mr Ayling submitted that the internal amenity of the principle living rooms on the ground floor would be reduced, “…as the rear wall of the lounge room has no window facing north just a glazed door” [and a fanlight window above]. He pointed out that the side windows would be fixed and perhaps double-glazed to ameliorate privacy and noise impacts and thus not satisfactory.
78 Mr Vickas, considered the latest set of architectural plans, in respect of this issue, and was of the opinion that, [Note: Exhibit 11 p 6]:

Overall, I find this aspect of the proposal most unfortunate, and particularly because it rejects best practice approaches in reconciling heritage conservation with economic development. In effect, No 123A is an unwanted appendage of the development site that must be seriously compromised in order to make the overall development economically and physically viable. But this is only because of the particular design strategy chosen and not because of any irreconcilable conflicts of interest.

In my opinion, the amended application will worsen the already serious degradation that the proposed development will cause to the very fine and highly regarded period character and heritage values of Smith Street in the immediate vicinity. To base the proposed development on the assumption that it is justified in repeating (and in fact worsening) a serious mistake of the past that is allowing a loading dock and pantechnicon vehicular driveway to front Smith Street adjacent to the Darrell Jackson Gardens is in my view a grave and fatal error of judgment in terms of protecting the amenity and heritage values of Smith Street. It simply defies well-informed design judgment.

No it is not so. We disagree in this. There is no doubt there was a relatively grand row of houses there [in the past] but there are [now] other buildings to the west. It is not a grand boulevard. It is not appropriate to do, as Vickas does, judge the streetscape outcome of this, which is not there now. [There is a need to] look at it in the context of the current streetscape.

The path rises from the kerb then level and it is up the wall of the building and it has a heritage impact. It is clearly an impact, but not substantive. That change is negative but there are positive changes it is appropriate.

Given the clarity of design and rationality of planning, the project promises to become an asset to the vitality of the area, both in visual and urban activity terms.

Relationship between the proposal and No 13 Hardie Avenue and whether or not the proposal would cause unreasonable overshadowing and loss of privacy
85 Mr Craig submitted, for the applicant, that if one were to erect a building of the same dimensions as Nos 13-15 Hardie Avenue, on the land to the north, (part of the subject land), one would have similar shadowing effects to that proposed. The implication being that even if the land to the north were developed as residential similar impacts might be expected. Nos 13-15 Hardie Avenue is to the south of the land and the owner seeks to use the ground floor commercially. He submitted that the impact from shadowing would be limited to backyard.
86 Mr Ayling submitted that the proposal would be visually overbearing and overshadow Nos 13-15 Hardie Avenue, and in particular No 13 which is to the north of a pair of semi-detached terraces. He added that the proposed brushwood fences around the podium to a height of 1.6m proposed to maintain privacy would “…add to the solidity of shade”.
87 Mr Vickas was of the opinion that the proposal when viewed from Hardie Avenue would be “…architecturally distinctive and evidently handled with some architectural skill and maturity”, and he would not support any suggestion that it would need to be lower in scale on the eastern side. [Note: Exhibit 10 p 9] This is in the vicinity of Nos 13-15 Hardie Avenue. However, he continued that the proposal failed to provide an integrated solution for the western side of Hardie Avenue.
88 Professor Mackay stated [Note Exhibit G p 15-6: statement of evidence]:

Parapet heights are consistent with those in Lackey Street. They would not be intrusive elements in the existing streetscape. Indeed the parapet height fronting Hardie Avenue was increased at the request of the Council.

Whether the development should have been designed with an active northern frontage and should have maintained and enhanced the vista along the northern elevation
90 Mr Craig for the applicant, referred to the evidence of Professor Droege that the northern elevation would be “…a firm and well-designed wall of appropriate transparency” that would ensure “…that amenity would not be reduced at all”, and “…its urban design qualities strengthened” [Note: Exhibit J p 5].
91 Mr Ayling for the council submitted that the evidence of Mr Sanders criticised the dichotomy of the design in incorporating both an arcade and the thoroughfare of the laneway to the north. He added that shops with glazed back walls are difficult to plan and to occupy.
92 In respect of the interface with the northern right of way Mr Vickas stated, [Note: Exhibit 11 p 4]:

…the proposed development fails to integrate itself with the pre-existing public right-of-way that is such an important public link to the shopping centre from the west. The contended fronting of the shops to the north is in my opinion quite conjectural and highly unlikely to occur in reality, and this is for obvious reasons of security risks and functional complications associated with double fronted, small shops, as well as the differences in floor-ground levels. These shops will not in my opinion activate the northern side or provide passive surveillance, and indeed I believe that the northern entrances will be little more than service entrances. At best the proposed development might improve the look of the right-of-way marginally, but unfortunately the proposal misses an important opportunity to upgrade the right of way into a safer and more appropriate major pedestrian thoroughfare. In this regard I do not consider the central walkway through the development as being a reasonable alternative, and this is because (a) it will be closed for extended periods and (b) its accessibility to the park is not properly resolved.

Overall, therefore, while I continue to acknowledge that the broader visual urban design impacts of the northern side of the development will be limited, I consider its dynamic and operational urban design features to be seriously inadequate.

Whether or not there would be unreasonable conflict in Hardie Avenue with vehicular traffic entering and leaving the main car park and motorists using the 90 degree parking opposite
95 Mr Craig referred to the evidence of Mr Rogers and to the fact that the vehicular ramp intersection with Hardie Avenue should be seen as other than an intersection between two public streets as suggested by Mr Lawrence.
96 He submitted that it would be “…effectively an extension of the car park provided the ramp meets the Australian Standard”. He submitted that it would not present as a point of conflict if there were “…appropriate and adequate view lines”. He added that traffic could be expected to be slow moving.
97 Mr Ayling submitted that Mr Lawrence regards this as important and special considerations apply to the public car parking opposite the top of the ramp. He submitted that the traffic flows would be not ideal and on occasion vehicles would need to stand either in the ramp or in Hardie Avenue while other vehicles were moved.
98 Mr Lawrence stated that, [Note: Exhibit 17 p 4]:

The proposed entry/ exit driveway introduces significant vehicle turning movements that will conflict with the 90o angle parking on the eastern side of Hardie Avenue on the immediate approaches to and adjacent to the proposed driveway.

We have undertaken generation surveys of the spaces on the eastern side of Hardie Avenue during a Thursday afternoon/ evening peak period. The surveys indicated that on average, the spaces turn over once every 25 minutes. There are 2 or 3 spaces in Hardie Avenue opposite the location of the proposed ramp. The potential for conflict between vehicles exiting the proposed basement car park and vehicles entering or exiting the 2 or 3 spaces on the opposite side of Hardie Avenue would therefore be very low.

…because the potential for conflict is very low, I do not believe that banning the right turn from the car park is necessary.

Whether or not semi trailers would be likely to use the proposed loading dock and the traffic impact in Smith Street
101 Mr Craig submitted that articulated vehicles would be discouraged by the design, from using the narrowed and gradient-increased loading dock. He submitted that the dock and ramp leading to it has been designed to accommodate small rigid trucks to 11m in length and these would be able to enter and exit the site in a forward movement.
102 He submitted that recognition needs to be given to the fact that the proposal is within a 3(a) zone in an inner city location and not on a ‘green fields site’ where more elaborate provisions might be made to service a supermarket.
103 Mr Ayling submitted that the existing loading dock might be shallower, less steep and wider than the proposed, but drivers of semi-trailers do access it and the same might occur with the proposal. That would mean that large articulated vehicles might back into the site to the detriment of public safety. He submitted that there is plenty of room on the land to provide appropriately for delivery vehicle access.
104 Mr Vickas, considered the latest set of architectural plans, in respect of this issue, and was of the opinion that, [Note: Exhibit 11 p 7]:

To base the proposed development on the assumption that it is justified in repeating (and in fact worsening) a serious mistake of the past that is allowing a loading dock and pantechnicon vehicular driveway to front Smith Street adjacent to the Darrell Jackson Gardens is in my view a grave and fatal error of judgment in terms of protecting the amenity and heritage values of Smith Street. It simply defies well-informed design judgment.

Whether or not there would be adequate internal residential amenity and whether or not there would be effective overdevelopment of the site
109 Mr Craig submitted that both the proximity of units to one another and devices to control privacy are not unusual in a development such as this. He submitted that the dwelling units do not depend on outlook to the internal walkway as sole source of light. He referred to drawing No DA4000 [Note: Exhibit O], which shows in section the separation of buildings, potential outlook, light and overlooking.
110 Mr Ayling referred to the evidence of Mr Sanders in respect of the further amended plans and submitted that the proposal fails to meet the requirements of SEPP65. He submitted that Mr Sanders considered that development consent ought not be granted having regard to the “…less than desirable changes in level of the arcade and retail shops”, [Note: Exhibit 27 p 1]
111 Mr Ayling also submitted that there would be less than the desired 12m separation between dwellings under the council’s “Residential Flat Design Code” [Note: Exhibit 9 p 13 and in particular paras 5.30 and 5.31 Mr Sanders statement of evidence]. He submitted that these are “…bad outcomes are the very issue to which SEPP65 is directed”. He submitted that the central building looks out onto the internal walkways.
112 Mr Sanders stated, [Exhibit 9 p 13]:

Further concerns arise when the proposal is assessed in the context of the primary development controls and site design criteria set out in the residential flat design code, which is a matter consideration under clause 30 of the state policy.

These concerns relate to building separations, that are less than the 12 metres recommended in the code; the lack of any provision for deep soil plantings; the lack of open space with effective and appropriate amenity and utility; and inappropriate pedestrian access points with building entries (including the entry of Smith Street) not being clearly identified or well-connected to the Street.

[The proposal] is appropriate in height, bulk, scale, intensity of development and character and has been designed to integrate with, and not dominate, the surrounding built form. It is considerate of its neighbours and modest in proportions. It relates well to the adjoining public domain including the street and park. It retains an important retail facility and provides additional residential accommodation in a location well served with facilities and public transport.

It is well below the maximum floor space ratio permitted under the LEP and has a density totally appropriate for a suburban centre served by a main rail line.

all units are dual aspect allowing natural ventilation and good solar access;
the depth of units are approximately 10 metres allowing good daylight penetration and ventilation;
units have a north south or east west orientation allowing good solar access;
there is a large area of accessible private and communal open space including the landscaped podium accessible only by residents;
measures have been incorporated into the development to minimise loss of privacy for adjoining developments and units within the development;
safe and convenient parking is provided;
dwellings are energy efficient achieving a NATHERS rating of at least 3.5;
apartment layouts are functional and efficient with daylight access to all habitable rooms; and
apartments are well sized.

Whether or not the design incorporating an arcaded passageway is appropriate, the desirability of an arcade v northern walkway and internal steps at the shop entrances
117 Mr Vickas was of the opinion that the central walkway would not be “a reasonable alternative” to the northern walkway because it might be closed for extended periods and “…its relationship with the park is not properly resolved”.
118 Mr Sanders questioned the need for the arcade as it is in a similar alignment to the footway to the north, and would be in shade. [Note: Exhibit 9 p 15].
119 Mr Brindle supported the applicant’s case in this regard and stated, [Note: Exhibit E p 38]:

The new walkway from Hardie Avenue and the car park to Darrell Jackson Gardens is an important element of the proposed development. This open walkway is 5.75 metres wide and wider at the eastern and western ends and in the middle. It has a length of about 60 metres. Weather protection is proposed by way of translucent awnings. It will be well lit to supplement natural lighting as required in the evenings. The walkway is activated by proposed cafe uses at either end and by retail shops opening onto the walkway. The walkway will be open while shops are trading and closed at night.

Although privately owned it will have an open feel and will be readily accessible to the public who desire to access the park. It is expected to have a positive impact on the park by making it more accessible to workers in the centre and shoppers.

It is considered that the walkway will be a safe environment with good vision from the shops and a lack of corners and alcoves. Any overshadowing from the structures above will have no impact on the amenity or use of the walkway for shoppers and pedestrians.

I consider the walkway to be a totally acceptable and desirable element of the development.

Whether or not there would be sufficient retail car parking
121 Messrs Brindle and Sanders agreed that the FSR of the proposal would not exceed the standard in cll 17 and 40 of the ALEP, [Note: Exhibit 16 p 1]. Messrs Rogers and Lawrence disagree as to the parking rate to apply to the proposal, [Note: Exhibit U p1]. Mr Rogers considered adequate car parking would be provided for the retail component, and would result in an improved parking situation for the Summer Hill shopping centre. Mr Lawrence considered the provision of 82 parking spaces for the retail component would create a shortfall of 49 spaces calculated using the Roads and Traffic Authority (RTA) retail-parking rate. Mr Lawrence accepted that 20 car parking spaces in the Hardie Avenue public car park are available to the existing supermarket on the land, and would not be necessarily be recognised as being legally available to the proposed uses, [Note: Exhibit 17 p 1]. However, if those spaces are taken into calculation, the deficiency would be 29 spaces to meet the RTA requirements as calculated by Mr Lawrence, and if the car parking for visitors’ to the residential component were used for a dual purpose the deficiency would be less. Mr Lawrence was critical of the design of some of the car parking spaces and agreed that some of the deficiencies could be addressed by condition. Other concerns remained for him such as stacked parking and reduced headroom.
122 Mr Rodgers was of the opinion that minor design deficiencies could be addressed at the construction certificate stage and the proposed retail car parking would be adequate and improved. He was of the opinion that under the RTA guidelines only 94 car parking spaces were required and 102 spaces would be provided without the need of the visitors’ spaces, [Note: Exhibit K p 7].
123 Given the proximity of the site to the station and to bus routes I am persuaded by the evidence of Mr Rodgers that the application should not be refused for this reason. Given the inner city location I am satisfied that overall the car parking provision would be adequate if not improved.

Owners’ and development consent to the proposed drainage diversion
124 Under s 39(2) of the Land and Environment Court Act 1979 the court may assume the powers of the council as owner to give consent to this part of the application and to approve it. There was no dispute between the parties in this regard.

State Environmental Planning Policy No 65, (SEPP65) assessment
125 At issue in these proceedings are Principles 1, 2, 3, 8, 6 and 10 of SEPP65, being context, scale, built form, security, landscape and aesthetics, respectively.
126 The evidence of Mr Brindle, [Note: Exhibit E pp 25-31] persuades me in this regard. I am satisfied that the proposal would be of ‘good design’ under SEPP65.
127 For the above reasons, the appeal is upheld.

Conditions
128 The conditions are those in Exhibit 26 and AH as amended during the hearing.

Orders
129 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 434/2002 lodged with the respondent council on 1 December 2002 to demolish the existing supermarket and shops and the rear section of the dwelling on No 123A Smith Street, to erect a mixed use retail/residential development, comprising basement car parking, a ground floor retail level incorporating a supermarket and associated smaller shops and two upper levels of residential apartments at Lot 1 in DP 1018057, known as Nos 1-11 Hardie Avenue, and Lot C DP 347563, known as No 123A Smith Street, Summer Hill and to subdivide the land to create a separate lot for the dwelling on No 123A Smith Street, is approved subject to Conditions A(1) to I(4) in Annexure A.

Commissioner of the Court

In the Land and

Environment Court

of New South Wales

No. 10061 of 2003

S & R Properties Pty Limited

Applicant

Ashfield Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 434/2002 lodged with the respondent council on 1 December 2002 to demolish the existing supermarket and shops and the rear section of the dwelling on No 123A Smith Street, to erect a mixed use retail/residential development, comprising basement car parking, a ground floor retail level incorporating a supermarket and associated smaller shops and two upper levels of residential apartments at Lot 1 in DP 1018057, known as Nos 1-11 Hardie Avenue, and Lot C DP 347563, known as No 123A Smith Street, Summer Hill and to subdivide the land to create a separate lot for the dwelling on No 123A Smith Street, is approved subject to Conditions A(1) to I(4) in Annexure A.

3. The exhibits with the exception of Exhibits O, P, Q, R, S, T, AF, AH, AL, 25 and 26 may be returned.

Ordered: 19 March 2004

By the Court

Susan Dixon
Registrar
sw

Conditions of development consent

Annexure A

S & R Properties Pty Limited
v
Ashfield Council

Development Application 2002.434
Nos 1-11 Hardie Avenue & No 123a Smith Street, Summer Hill

Development consent pursuant to Section 80 of the Environmental Planning and Assessment Act 1979 is granted to development application No. 434/2002 for the re-subdivision of the land into two Torrens title allotments, demolition of an existing supermarket building and the construction of a new supermarket, seven (7) retail shops and 36 units at 1-11 Hardie Avenue and associated works at 123A Smith Street, Summer Hill, subject to the following conditions:

( 1) Approved plans stamped by Council

DA 1000 – Survey
DA 2000 – Basement Plan – Issue L
DA 2001 – Ground Floor Plan – Issue I
DA 2002 – First Floor Plan – Issue F
DA 2003 – Second Floor Plan – Issue B
DA 2004 – Roof Plan – Issue C
DA 2005 – Subdivision Plan – Issue E
DA 2006 – Plan of Pedestrian Right of Way Upgrade for Floodway
DA 3000 – East and West Elevation – Issue C
DA 3001 – North and South Elevation – Issue C
DA 3002 – Pedestrian Street Elevation North and South – Issue B
DA 3003 – West Elevation, Section H.H – Issue D
DA 4000 – Sections AA and BB – Issue D
DA 4001 – Sections CC and DD – Issue D
DA 4002 – Sections EE and FF – Issue C
DA 4003 – Sections GG – Issue E
DA 4004 – Sections II – Issue B
DA 4100 – Detail section AA privacy provisions – Issue A
DA 6000 – Typical Town House Layouts – Issue A
DA 6001 – Typical Town House Layouts
DA 6002 – Typical Apartment Layouts
DA 6003 – Typical Layouts
DA 8000 – Measured Drawings Existing Plans 123a Smith Street
DA 8001 – Plan Alterations to 123a Smith Street
DA 8002 – North Elevation of Proposed Alterations to 123a Smith Street
DA 8003 – East Elevation of Proposed Alterations to 123a Smith Street
DA 8004 – South elevation of Proposed Apartments to 123a Smith Street
DA 8005 – West Elevation of Proposed Alterations to 123a Smith Street
DA 9000 – Demolition and Tree Removal
Context Landscape Design LWD001 – November 2003
Traffic circulation diagram [Note: Exhibit AF].

Notwithstanding any other provision of this consent, the consent does not include or extend to the drainage works relating to the relocation of the Sydney Water stormwater channel passing through the site, nor the drainage works associated with the right of carriageway, nor drainage works in Hardie Avenue described in the drawings referred to in Condition C 19(a). Development consent must be obtained for these works before these works are undertaken.

B. Design Changes

The plans shall be amended as follows:

(a) The disabled car space marked car space No 74 shall be replaced with a standard retail car space of minimum dimensions of 2.5m x 5.5m.

(b) Deleted.

(c) Permanently fixed bollards and a single chain or cable wire system that meets the requirements of the relevant Australian Standards and the Building Code of Australia shall be erected along the pedestrian pathway proposed for the area between the western boundary and the adjoining café area facing Darrell Jackson Gardens. This condition has been imposed to ensure that this area is kept free and available at all times for clear pedestrian access.

C. Conditions that must be satisfied prior to issuing/releasing a Construction Certificate

(1) Subdivision

A final plan of subdivision in accordance with the plan received by Council on 20 November 2003 and marked Drawing No. DA2005 Issue E – Subdivision Plan and a final plan of stratum subdivision for the rear yard area for No 123A Smith Street both prepared by a registered surveyor with six (6) paper copies, are to be submitted to Council for signature prior to registration at the Land Titles Office (Department of Information and Land Management). Evidence of lodgement of the final plans with the Land Titles Office shall be submitted to Council or the Principal Certifying Authority prior to the release of a Occupation Certificate.

(2) Construction and Site Management Plan

Prior to the issue of a Construction Certificate the applicant shall submit to Council or the accredited certifier a construction and site management plan that clearly sets out the following:

(a) what actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

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

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

(d) how it is proposed to ensure that soil/excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

(e) the proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a chartered Civil Engineer or an accredited certifier.

(f) Submit a Traffic Management Plan to Council in respect of the drainage works to be undertaken in Hardie Avenue. The plan is to be prepared by a suitably qualified engineer and shall detail the following:

Work area required including staging and storage areas.

Estimated time period for proposed works including work hours.

Estimated number of vehicle movements associated with works and details of any proposed haulage routes.

Traffic and parking impacts of proposed works.

Proposed measures for ameliorating the above impacts including maintaining vehicle access to properties, loss of parking during works.

Where it is proposed to:

pump concrete from within a public road reserve or laneway, or

stand a mobile crane within the public road reserve or laneway, or

use part of Council’s road/footpath area,

pump stormwater from the site to Council’s stormwater drains, or

store waste and recycling containers, skip, bins, and/or building materials on part of Council’s footpath or roadway.

An Activity Application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee shall be submitted to Council and approval obtained before the relevant activity takes place.

Note: A separate application to Council must be made for the enclosure of a public place (hoarding).

(3) Landscaping plan

Submission of an amended landscape plan at scale 1:100 or 1:200 prepared by a qualified landscape architect, to the Principal Certifying Authority, including details of all planting proposed, planting to be retained and the following:

(i) The proposed planter bed to be created on top of the proposed sandstone wall along the Darrell Jackson Gardens boundary shall be planted with a combination of appropriate species which will provide an adequate privacy screen for the adjoining units and further screening of the wall below, eg the use of climbing plants to drape over the face of the wall will be required. Cross sectional details of this planter bed shall be included in the landscape plan.

(ii) Details of paving materials and any proposed retaining walls.

(iii) Specific details of the treatment of the landscaped areas above any suspended concrete slabs to include the soil depth and type of all materials to be used.

(iv) The establishment of two planter beds at the Hardie Avenue entry to the arcade and two planter beds along the Darrell Jackson Gardens frontage as shown on amended plan DA2001G.

(v) Compliance with Section 2-5 of Ashfield Council’s Tree Preservation and Landscape Policy.

(vi) The continued maintenance and protection of the proposed landscaped areas to be established on the subject premises.

(vii) Landscaping plans consistent in their detailing with the approved development plans, including any landscape concept plan.

(viii) All landscaped areas are to be provided with a water efficient irrigation system to ensure all plants are maintained to a satisfactory standard.

(ix) Full details of the proposed Palisade fencing along the western boundary and fencing around the proposed stratum and Torrens title lots to 123A Smith Street.

The landscaping details are to be provided for approval with the Construction Certificate. All site works and landscaping is to be carried out in accordance with the approved plans prior to completion and/or occupation of the premises, except in the case of No 123A Smith Street.

(4) Landscape maintenance bond

The approved landscaping is to be established and maintained on the subject property in accordance with Part 4 of Ashfield Council’s Tree Preservation and Landscape Policy. A bond, refundable after a minimum period of 6 months following a satisfactory final inspection and equivalent to 0.5% of the value of the development is to be lodged with Council prior to release of the Construction Certificate to ensure compliance with this requirement.

(5) Damage deposit/footpath, road, kerb and gutter

A Damage Deposit of $20,000 is to be submitted prior to the release of the Construction Certificate covering repair and/or replacement of adjoining footpath, road shoulder, road pavement, kerbing and guttering both adjacent to and outside the subject site and shall be lodged with Council either in the form of cash or a Bank Guarantee which will be refunded subject to satisfactory completion of construction or demolition.

This Damage Deposit covers unforeseen damage to the above property by construction vehicles, skip bins, construction methods etc. In addition to paying this Damage Deposit, a Road Opening Permit must also be paid covering maintenance and repairs for specific works carried out on Council land as part of the development.

(6) Section 94 Contributions – Community Facilities

The payment of a cash contribution of $18,900 towards the provision of community facilities in the locality.

This contribution is based on $525 for each unit in accordance with Council’s adopted Section 94 Contributions Plan for Ashfield: Community Facilities.

Any contributions required in satisfaction of a condition of development consent are to be valid until Council’s next review of Section 94 Contributions Plan on 30 June 2004 following which the amount of the contribution will be reassessed in line with the revised figures.

Payment is to be made prior to release of the Construction Certificate.

(7) Section 94 Contributions – Open Space and Recreation Facilities

The payment of a cash contribution of $154,980 towards the provision of open space and recreation facilities in the locality.

This contribution is based on $4,305 per unit in accordance with Council’s adopted Section 94 Contributions Plan for Ashfield: Open Space and Recreation Facilities.

(8) Long service levy

Compliance with Section 109F of the Environmental Planning and Assessment Act 1979; payment of the long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by installments, the first installment of the levy). All building works in excess of $25,000 are subject to the payment of a Long Service Levy at the rate of 0.2% x $8,000,000 = $16,000.

(9) Redundant crossing removal fee

Council will need to remove any redundant crossings and replace with kerbing and other ancillary works where necessary. Contact Council on 9716 1983 and you will be advised as to the estimate of cost of this work.

(10) Security devices/measures

In order to achieve satisfactory levels of surveillance and ongoing security on the site, the following shall occur:

(a) The windows and doors of all first floor units along the Hardie Avenue, Darrell Jackson Gardens and the right of footway frontages ground shall have fitted security-locking devices, which comply with the relevant Australian Standard.

(b) Ground floor and entry porticos shall have as a minimum double barrel security and fire locks.

Details to be shown on the construction certificate

(11) Lighting to basement/pedestrian routes-safety/sightlines

Lighting which meets the relevant Australian Standard of 40 lux., spaced at appropriate intervals to provide the required surveillance shall be provided to the vehicular basement parking area and along pedestrian access routes for safety and security purposes during the evenings. Additional lighting is to be provided in the car park opposite the exit from the pedestrian ramp from the retail areas to ensure adequate visibility of pedestrians.

Sightlines for the pedestrian ramp are to be in accordance with the requirements of AS 2890.1-1993. Furthermore the sides of the lower section of the ramp are to be constructed with transparent glass or mesh to allow pedestrians to be seen by motorists circulating within the car park.

Details to be shown on the construction certificate.

(12) Entry control - safety

At the entry to the basement car park, the following shall be provided:

a boom gate; and

an intercom system between visitors and residents to entry and exit from the car park.

Each ground level entry area to the building shall have an intercom system whose purpose is to contact residents or the manager/caretaker to allow entry to visitors. Details to be shown on the construction certificate.

(13) Car parking provision/layout

One hundred and eleven (111) off-street parking spaces, including four (4) spaces for the accessible/adaptable units, shall be provided and allocated in accordance with the provisions of AS2890.1 and 2 and the requirements of Ashfield Council’s Development Control Plan for Access, Adaptability and Mobility. Note: Minimum basement ceiling height above any parking spaces provided for people with disabilities is to be 2.6 metres.

Of these 111 spaces, 82 shall be allocated to retail car parking including 4 disabled spaces. The remaining 37 shall be allocated to resident and visitor parking. Of these 37 spaces, 7 shall be allocated, suitably line marked and signposted as visitor parking in accordance with the amended parking layout marked Drawing No. DA2000E.

Should strata subdivision of the proposal be required, one (1) residential car parking space shall be allocated to each two bedroom unit and the remaining residential spaces distributed to the one bedroom units on the basis of not more than one car parking space per unit. The seven (7) visitor parking spaces referred to above shall be allocated as common property.

(14) Access and services for people with a disability – flats/mixed development

Detailed plans drawn to the scale of 1:50 shall be submitted detailing compliance with the requirements of AS4299 and AS1428 Part 1 and the provisions of Ashfield Development Control Plan for Access and Mobility (tel. 9716 1800 for a free copy) prior to the issue of a Construction Certificate, showing a minimum of four (4) adaptable and accessible units within the development and details of complying levels, ramp slopes, door widths, circulation spaces within the development for the adaptable units, entrances to lift wells, the access ramp off Smith Street, and access to residential garbage storage area.

(15) Access and services for people with a disability

Detailed plans drawn to the scale of 1:50 shall be submitted detailing compliance with the requirements of AS4299 and AS1428 Part 1 and the provisions of the Ashfield Development Control Plan for Access and Mobility (tel. 9716 1800 for a free copy) prior to the issue of a Construction Certificate, and details of complying levels, ramp slopes, door widths, circulation spaces for the trolley ramp from the basement car park, access to the lift for the retail component, and access to disabled parking spaces.

(16) Water conservation

Water saving devices must be fitted to all showers and dual flush cisterns installed within all WC/sanitary facilities provided throughout the development to reduce ongoing water consumption. Documentation to be shown on the plans to be provided with the Construction Certificate.

(17) Energy efficiency

The development must be designed and constructed to maximise energy efficiency, including wall and ceiling insulation and energy efficient appliances/hot water/cooling systems. Contact the Sustainable Energy Development Authority, telephone 9291 5260 for general design and construction information relating to energy efficiency. Documentation detailing the energy efficiency features of the development is to be shown on the plans to be provided with the Construction Certificate.

(18) Water efficient irrigation system

The communal open space areas shall be provided with a water efficient irrigation system to enable effective landscape maintenance. Details shall be included with the landscape plan to be submitted with the Construction Certificate.

(19) Stormwater disposal – calculations and details

Deleted.

(20) Services adjustment or relocation

The applicant shall meet the full cost for Telstra, Sydney Electricity, Sydney Water or Natural Gas Company to adjust/relocate their services as required. The applicant shall make the necessary arrangements with the service authority. (For information on the location of these services contact the “Dial before you Dig” service on 1100).

Documentary evidence from the public utility authorities confirming that all of their requirements have been satisfied shall be submitted to Council with the Construction Certificate under Section 68 of the Local Government Act, 1993, for construction of the development.

(21) Footpath/laneway – photographs to be submitted

Prior to the release of the Construction Certificate, the applicant shall lodge with Council photographs of the roadway, footpath and/or laneway at the property indicating the state of the relevant pavements. At the completion of construction, again at the expense of the applicant, a new set of photographs is to be taken to determine the extent, if any, of any damage, which has occurred to the relevant pavements. If any damage has occurred, the applicant shall meet the full cost to repair or reconstruct these damaged areas to Council’s relevant standard.

(22) Sydney Water – Section 73 Compliance Certificate

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water website or telephone Sydney Water on 13 20 92.

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

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the release of an occupation or subdivision certificate.

(23) Service corridor width

The service corridors in DA2001 on the western side of the proposal shall be a minimum clear width of 1500mm.

(24) Northern public pedestrian way treatment

The retail windows facing onto the northern public pedestrian way, are to be used down to the level of the footpath, for display purposes at all times.

D. Conditions that must be complied with before work commences

(1) Requirement for a Construction Certificate

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 the erection of a building and/or construction works must not commence until:

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:

(i) Council; or

(ii) an accredited certifier; and

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

The documentation required under this condition shall show that the proposal complies with all development consent conditions and the Building Code of Australia.

Note: If the principal certifying authority is the Council, the appointment will be subject to the payment of a fee for the service to cover the cost of undertaking building work and/or civil engineering inspections.

WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is a criminal offence that attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

(2) Public Liability Insurance – Works on Council/public lands

The applicant or any contractors carrying out approved works on public or Council controlled lands with consent shall have public liability insurance cover to the value of $10,000,000 and shall provide proof of such cover to the principal certifying authority prior to carrying out the works and annually for the period of time for which works are being carried out on Council or public lands.

(3) Inspections required by Principal Certifying Authority

If Council is selected as the Principal Certifying Authority (PCA) inspections will be required and must be paid for in accordance with the following fees:

(i) Footings and Slabs $136.50

(ii) Foundations, including piers $136.50

(iii) All framing (floors, walls and roof) $136.50

(iv) Stormwater drainage lines before backfilling of the trenches $136.50

(v) Completed Structure $136.50

Total Cost of Inspections $682.50

Note: The above fees are only valid until 30 June 2003 following which the charges will be reassessed. If additional inspections are required, an additional fee is payable for each inspection. A minimum of 24 hours notice is required to be given to Council to obtain an inspection. Work is not to proceed until the works or activity covered by each inspection is approved.

(4) Building location – check survey certificate

To ensure that the location of the building satisfies the provision of the approval, a check survey certificate shall be submitted to the Principal Certifying Authority either prior to the pouring of the ground floor slab or at damp course level, whichever is applicable or occurs first, indicating the:

(i) location of the building with respect to the boundaries of the site;

(ii) level of the floor in relation to the levels on the site (all levels are to be shown relative to Australian Height Datum);

(iii) site coverage of the buildings on the site.

(5) Crane permit

Should the applicant need to use a crane during the course of building, it will be necessary to first obtain a “Crane Permit” from Council’s One Stop Shop. A fee of $150 per day is payable for the permit. The approval of other authorities (eg Police Department, RTA) may be required for the use of a crane.

If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or 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 erected prior to works commencing and only with Council approval in accordance with Workcover requirements. The temporary structures are to be removed when the work has been completed.

(7) Site fencing/security

The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. Permits for hoardings and or scaffolding on Council land must be obtained and clearly displayed on site.

(8) Demolition work plan

Prior to demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

(9) Asbestos and/or lead removal certification

The existing structures/land on the site potentially contain asbestos and/or lead. Following removal of any asbestos/lead located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos/lead remains on site from a suitably qualified person.

A copy of the clearance Certificate must be forwarded to Council before any other demolition work is commenced.

(10) Garbage skips on Council land – Council approval

Bulk refuse bins or garbage skips shall not be placed on grass verge, footpath or roadway without Council permission. Application forms and details of applicable fees are available from Council’s One Stop Shop on telephone 9716 1800.

(11) Haulage route information

Full details of proposed haulage routes, estimated number of vehicle movements and trip locations related to demolition/construction activities are to be submitted to Ashfield Council prior to work commencing.

(12) Structural engineer’s details

To ensure compliance with the provision of Section B of the Building Code of Australia structural engineer’s details of all structural elements shall be submitted to the Principal Certifying Authority prior to commencement of work, including:

(i) pier and beam footings;

(ii) reinforced concrete slabs;

(iii) stairs, including patio steps;

(iv) retaining walls;

(v) all structural timber including floors, walls and roof; and

(vi) all structural steel.

E. Conditions that must be complied with during construction or demolition

(1) Plans to be available on site

The Council stamped approved plans and Construction Certificate shall be held on site to be produced unobliterated to Council’s officer at any time when required.

(2) Advertisements on hoardings prohibited

No advertisements of any kind shall be affixed to the hoarding except a broad, which may show the builder’s or architect’s name or any particulars regarding the subject building.

(3) Encroachment on Council property prohibited

No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach upon Council’s footpath area.

(4) Building materials – storage/placement on footpath/roadway – Council approval

All building materials shall be stored wholly within the property boundaries and shall not be placed on the footpath, grass verge or roadway without prior written approval of Council.

Bulk refuse bins shall not be placed on the grass verge, footpath or roadway without Council permission. Application forms and details of applicable fees are available from Council’s One Stop Shop telephone 9716 1800.

(5) Pedestrian way to remain accessible

The public pedestrian way must be freely accessible at all times. The minimum width of unobstructed footpath shall be 1.5 metres.

(6) Signs to be erected on building and demolition sites

(1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the work site is prohibited, and

(b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

(2) Any sign is to be removed when the work has been completed.

(3) This condition does not apply to:

(a) building work carried out inside an existing building, or

(b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

(7) Demolition/excavation/construction – hours of work

Demolition, excavation and construction work, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7:00am to 6:00pm, Monday to Saturday inclusive. Work is prohibited on Sundays, and on public holidays.

(8) Noise control during construction and demolition

For construction and demolition periods of 4 weeks or less the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more that 20dB.

(9) Dust control

Adequate measures are to be implemented, including, for example, water spraying/mesh barriers, to prevent dust from causing any nuisance.

(10) Site vehicles – mud/debris

You are to ensure that ALL vehicles leaving the site are free of mud and debris. Loads are to be fully covered and vehicles/wheels washed down to ensure that no nuisance occurs.

(11) Materials and colour schemes

Materials of construction and finishes shall be in accordance with the sample board lodged with the development application on 1 December 2003 and on the approved plans, except where amended by the conditions hereunder.

(12) Footpath, kerb and gutter reconstruction

The public footpath, verge, and kerb and gutter outside the site if damaged as a result of the development shall be completely reconstructed to the requirements of Council’s Engineering Services Department at the applicant’s expense.

(13) Road opening permit – Council controlled lands

A road opening permit shall be obtained for all works carried out in public or Council controlled lands. Contact Council’s Engineering Services for details.

This road opening permit coves the direct costs involved in the repair/replacement or works where the public or Council controlled lands are specifically damaged/saw cut etc for the construction of services, stormwater pipes, kerb works, bitumen works, footpath works etc. It is separate from a Damage Deposit as listed elsewhere in these Conditions of Consent.

F. Conditions that must be complied with prior to installation of services

Nil

G. Conditions that must be complied with before the building is occupied

(1) Positive Covenant – stormwater detention/surface flow paths – occupation certificate

A Positive Covenant under Section 88E of the Conveyancing Act shall be created on the title of the property providing that during the lifetime of the building constructed pursuant to this consent:

(i) the stormwater detention facility as described in the approved plan and the conditions of consent shall not be altered or removed in whole or in part without the written approval of Ashfield Municipal Council;

(ii) the registered proprietor at its expense is to maintain, renew and repair the stormwater detention facility so that it functions in a safe and efficient manner and keep it clean and free of silt, rubbish and debris;

(iii) Ashfield Municipal Council employees are to be entitle upon reasonable notice to access the land to inspect the facility;

(iv) the registered proprietor is to comply with any notices issued by Ashfield Municipal Council regarding maintenance, renewal and repair of works (and, in default of same, Council and/or its authorised agents may enter and carry out the specified work and recover the costs from the registered proprietor);

(v) the registered proprietor shall not modify or permit modification of finished ground and/or pavement levels within the flow path in whole or in part without the written approval of Ashfield Municipal Council; and

(vi) the registered proprietor shall ensure that at all times the stormwater surface flow path is kept unobstructed by fences or any physical structures of barriers.

The wording in the Instrument shall be submitted to and approved by Ashfield Municipal Council prior to lodgment at the Land Titles Office and prior to the release of the Occupation Certificate. The Instrument shall be registered prior to the completion of development.

In order to ensure that the on-site detention system is properly maintained the owner of the site shall each year provide Council with a Certificate from a practicing civil engineer stating that the on-site detention system is functioning correctly and has not been compromised in any manner.

(2) Engineering conditions to be satisfied prior to issue of occupation certificate

When the on-site building works are completed there are three (3) conditions that must be satisfied before Council’s Engineering Department will recommend that an Occupation Certificate be issued:

They are:

(b) Engineer’s Certificate
A qualified practicing Civil Engineer shall certify on the completion of drainage works in respect of:

Stormwater Management Code.

(c) Restriction-As-To-User

Such restrictions shall not be released, varied or modified without the consent of the Council.

(3) Restoration of No 123A Smith Street

The existing dwelling house and front garden at No 123A Smith Street shall be restored and upgraded in accordance with the Heritage Assessment Reports prepared by Godden Mackay Logan dated March, May and October 2003. The landscaping works to be carried out on the site shall be included in the amended landscaping plan required under condition C (3) above. A schedule of the proposed restoration works to the dwelling shall be included with the Construction Certificate for the restoration works. A qualified heritage consultant registered with the Heritage Office shall certify the schedule of works prior to commencement of such works and shall also certify that the works have been completed in accordance with the submitted schedule at the end of the construction process.

(4) Provision of Caretaker Services

The future proposed strata subdivision of the development shall include a By-Law requiring the Owners’ Corporation to employ a caretaker for the development. The caretaker shall be responsible for general maintenance duties on the site, including cleaning of garbage bins and storage rooms, transferring waste from the larger bins to the 240 litre bins where required, presenting all 240 litre bins for collection by Council’s contractor, and transferring recyclables from the residential shute rooms to the residential garbage storage rooms. Full details of the wording of this By-Law shall be submitted to Council with the Development Application for strata subdivision of the development.

H. Conditions that are ongoing requirements of development consents

(1) Machinery - soundproofing

All plant/machinery or equipment to be soundproofed to reduce the emission of noise, to the requirements of the Principal Certifying Authority and in compliance with the Protection of the Environment Operations Act 1997 and EPA noise control guidelines.

(2) Lighting overspill - amenity

No security or other lighting shall cause light overspill to adjoining property owners occupiers or residents.

(3) Loading/unloading on site

All loading and unloading associated with the proposed supermarket and the specialty shops is to be conducted within the site at all times. Any designated loading bay/dock area is to remain available for loading/unloading purposes at all times. No storage of goods or parking of cars is to be carried out in these areas.

(4) Hours of Operation for Supermarket

The hours of operation for the proposed supermarket shall be restricted to 7:00am to 10:00pm, Monday to Saturday and 7:00am to 10:00pm on Sunday and Public Holidays.

(5) Shopping Trolleys

Deleted.

(6) Use of Arcade Area

Deleted.

I. Advisory Notes

(1) Other approvals

This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, including:

An Application for Approval under Section 68 of the Local Government Act 1993 for any proposed activity under that Act, including any erection of a hoarding. All such applications must comply with the Building Code of Australia.

An application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979.

Note: An application for an Occupation Certificate may be lodged with Council if the applicant has nominated Council as the Principal Certifying Authority.

An Application for a Subdivision Certificate under Section 109(C)(1)(d) of the Environmental Planning and Assessment Act 1979 if land (including stratum) subdivision of the development site is proposed.

A Development Application for Strata Title Subdivision under the Strata Schemes (Freehold Development) Act 1973, if strata title subdivision of the development is proposed.

It should also be noted that the use of each of the specialty shops will require the prior development consent of Council before each of these premises are occupied.

A development application for demolition approval under the Environmental Planning and Assessment Act 1979 if consent for demolition is not granted by this consent.

Sydney Water may require the construction of additional works and/or the payment of additional fees. Other Sydney Water approvals may also be necessary prior to the commencement of construction work. You should therefore confer with Sydney Water concerning all plumbing works, including connections to mains, installation or alteration of systems, and construction over or near existing water and sewerage services.

Contact Sydney Water, Rockdale (Urban Development Section) regarding the water and sewerage services to this development.

Australia Post has requirements for the positioning and dimensions of mail boxes in new commercial and residential developments. A brochure is available from your nearest Australia Post Office.

Energy Australia/AGL Electricity/AGL Retail Energy or other alternative service/energy providers have requirements for the provision of connections.

Energy Australia has a requirement for the approval of any encroachments including awnings, signs, etc over a public roadway of footway. The Engineer Mains Overhead Eastern Area should be contacted on 9663 9408 to ascertain what action, if any, is necessary.

Telstra has requirements concerning access to services that it provides.

(3) Modifications to your consent – prior approval required

Works or activities other than those authorised by the approval including changes to building configuration or use will require the submission and approval of an application to modify the consent under Section 96 of the Environmental Planning & Assessment Act 1979. You are advised to contact Council immediately if you wish to alter your approved plans or if you cannot comply with other requirements of your consent whether a Section 96 modification is required.

Warning: There are substantial penalties prescribed under the Environmental Planning and Assessment Act 1979 for breaches involving unauthorised works or activities.

(4) Signs – approval required

A separate Development Consent or Complying Development Certificate must be obtained prior to the erection of any advertising sign.

S J Watts

CITATION:	S & R Properties Pty Limited v Ashfield Council [2004] NSWLEC 143
PARTIES:	APPLICANT S & R Properties Pty Limited RESPONDENT Ashfield Council
FILE NUMBER(S):	10061 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Mixed use retail/residential development application Relationship between the proposal and 'Darrell Jackson Gardens' Relationship between the proposal and No 123A Smith Street and whether or not the proposal would unnecessarily detract from the heritage values of that house Relationship between the proposal and No 13 Hardie Avenue and whether or not the proposal would cause unreasonable overshadowing and loss of privacy Whether or not the proposal should have been designed with an active northern frontage and should have maintained and enhanced the vista along the northern elevation Whether or not there would be unreasonable conflict in Hardie Avenue with ehicular traffic entering and leaving the main car park and motorists using the 90 degree parking opposite Whether or not semi trailers would be likely to use the proposed loading dock and the impact on traffic in Smith Street Whether or not there would be adequate internal residential amenity and whether or not there would be effective overdevelopment of the site Whether or not the design incorporating an arcaded passageway is appropriate the desirability of an arcade v northern walkwayand internal steps at the shop entrances Whether or not there would be sufficient retail car parking Owners' and development consent to the proposed drainage diversion.
LEGISLATION CITED:	Ashfield Local Environmental Plan 1985, (ALEP) Draft Ashfield Local Environmental Plan 1985 (Amendment 100), (Amendment 100) State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) Draft State Environmental Planning Policy No 66 - Integration of Land Use and Transport, (Policy package) State Environmental Planning Policy No 32 Urban Consolidation (Redevelopment of Urban Land), (SEPP32)
CASES CITED:
DATES OF HEARING:	03/11/03-07/11/03 and 08/03/04-09/03/04
DATE OF JUDGMENT:	03/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M G Craig, QC instructed by Mr R J Wilcher, solicitor for Baker & McKenzie RESPONDENT Mr J A Ayling, SC instructed by Mr P M Jackson, solicitor for Pike Pike & Fenwick