Songkal Pty Limited v Warringah Council - [2001] NSWLEC 197

No judgment structure available for this case.

Reported Decision: 117 LGERA 237

Land and Environment Court

of New South Wales

CITATION: Songkal Pty Limited v Warringah Council [2001] NSWLEC 197

PARTIES:
APPLICANT
Songkal Pty Limited
RESPONDENT
Warringah Council

FILE NUMBER(S): 10266 of 2001

CORAM: McEwen AJ

KEY ISSUES: Development Application :- Owners consent
non planning matters not a bar to grant of development consent
access - bulk and scale - deferred commencement

LEGISLATION CITED: Conveyancing Act 1919, s 88K
Environmental Planning and Assessment Act 1979, s 78A, s 79C
Environmental Planning and Assessment Regulation 1994, cl 46

CASES CITED: Buckoke v Greater London Council [1971] 1 Ch. 655;
Currey v Sutherland Shire Council and Anor (1997) 92 LGERA 85;
Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 400;
Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113;
Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, Bryson J, unreported;
Marshall v Blackpool Corporation [1935] AC 16;
North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470;
Parramatta City Council and Anor v Hale and Ors (1983) 47 LGRA 319;
Remath Investments No 6 Pty Ltd v Botany City Council (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported);
Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231;
Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71;
Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181;
Weal v Bathurst City Council and Anor (2000) 111 LGERA 181

DATES OF HEARING: 23/07/2001, 24/07/2001, 25/07/2001, 26/07/2001

DATE OF JUDGMENT:
08/24/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr N Hemmings QC
SOLICITORS
Allens Arthur Robinson
RESPONDENT
Mr M Tobias QC
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND 10266 of 2001
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 24 August 2001

Songkal Pty Limited

Applicant

v

Warringah Council

Respondent

JUDGMENT

Introduction

1. These Class 1 proceedings were filed at a time when there was a deemed refusal by the respondent Council of a proposal to redevelop the property commonly known as No 701 Pittwater Road, Dee Why (“the subject site”). Subsequent to filing the appeal the Council on 19 June 2001 determined the application by refusing it, on the basis of nine matters which went to the merit of the proposal, and one relating to owner’s consent for a portion of land owned by the Council, the use of which was necessary to give access to the proposed development.

2. The Council’s initial Statement of Issues were amended in June of this year to add, in addition to the 12 merit matters which the original Statement had identified, the following: -

1A. Whether the development application as to the development of Part Lot 1 DP 364010 St Davids Avenue Park (“St Davids Avenue Park”) for pedestrian and vehicular access is one to which the provisions of clause 5(2) of WLEP 2000 do not apply, the development application not being a development application submitted before 5 December 2000 which substantially complied with Section 78A of the EP&A Act 1979 and clauses 46 and 46A of the EP&A Regulations 1994 in that it was not made by the Applicant with the consent in writing of the Council as the owner of St Davids Avenue Park.

1B. Whether the development of St Davids Avenue Park for pedestrian and vehicular access is prohibited by Warringah LEP 2000.

3. Issues 1A and 1B raised questions as to owners consent, and permissible use, of a small triangular area (“the triangle”) of St Davids Avenue Park (“the Park”) which abuts the subject property and is owned by the Council, and over which the applicant proposes both vehicular and pedestrian access to the development.

4. When the proceedings commenced issues 1A and 1B were addressed as preliminary matters. Although submissions were put by both parties in relation to these issues, Mr Hemmings QC, for the applicant made it plain that the application was not for consent to use the Council owned triangular portion of St Davids Avenue Park (sometimes referred to as Gore Park), but rather that consent for that use was to await another day; he made it clear that the application was confined to the boundaries of the subject site, albeit the proposal was for the site to be accessed in the manner I have described. In those circumstances Mr Tobias QC for the respondent, accepted that the triangular portion of St Davids Avenue Park formed no part of the application for consent, and agreed that the preliminary questions in 1A and 1B did not arise.

5. When final submissions were made after taking evidence on the merits of the proposal, both parties returned, in different ways, to these two issues. Hence the questions of owner’s consent (1A) and permissibility of access (1B) remained live issues.

The Proposal and its History

6. The proposal is described by the applicant as being “alterations and additions to an existing commercial building to construct a four to six storey mixed shops, commercial and residential flat building plus lower level car parking”. The proposal retains the existing two shops at the Pittwater Road frontage, with them being set back to comply with a five metre build-to-line requirement; the first floor will retain existing commercial offices as will level two; there are then four levels of dwellings, with 14 units; 24 spaces are provided for car parking. The Council maintains that due to the way storeys are counted the proposal is a seven storey building; the applicant says it’s a six storey building. There is no argument that on either approach, the proposal does not exceed the control of a maximum height limit of 24 metres.

7. The subject property is Lot 1 in DP 300967. Its location in relation to St Davids Avenue Park (Lot 1 in DP 364010), St Davids Avenue and Pittwater Road, is shown in the following plan, where the triangle over which access is proposed is shown in the western apex of the Park with an area of 27.3 m2.

8. The proposed building is articulated with stepped facades which the applicant maintains complies with the Council’s build-to-line requirements, resulting in a structure which satisfies the “wedding cake” objective. The modulated fenestration is proposed to be complimented by the use of a wide range of materials – stone facing, aluminium framed glazing, cement rendered brickwork with texture coat finish, treated timber, and steel hand rails. The Council maintains that due to the storey exceedence, the setbacks of the top floors are inadequate (in so far as it is alleged they do not comply with the requirements of DCP 24).

9. It is not insignificant that the present application has had a long gestation. An original application was lodged on 29 April 1997, which proposed access to the site from Pittwater Road. Consequent upon Council’s recommendation that the applicant seek alternate access off St Davids Avenue, across the triangle, and the applicant agreeing to do so, the Council took steps to effect this access. Prior to 1997 the Park had been classified as “community land”; in April of 1997 the Council adopted a Plan of Management for Community Lands. In May of 1999 the Council entered into an agreement with the applicant for an easement to be provided across the triangle to facilitate access for development of the subject site, but was advised by its lawyers the following year that that agreement was void, as it sought to deal with community land in a manner which was proscribed. To meet that advice, and still achieve the objective of providing access across the triangle, the Council on 28 March 2000 resolved to alter the classification of the triangle from “community” to “operational”. It is also of relevance that on 24 September 1999 Council’s Director of Public Office a Mr Simons, provided a consent on behalf of Council to the development application lodged in April 1997, in respect of the Council owned land. On 11 May 2000 Mr Simons withdrew that consent.

10. In September of 1999 Council referred the 1997 application to private consultants, Scott Carver, for assessment. Following the request for further information and discussions with Council’s officers a series of amended drawings which dealt with these requests for information were lodged by the applicant. In March of 2000 Council formed the view that the application was so significantly modified from the original that it could only proceed as a fresh application and invited the applicant to withdraw the 1997 application, and re-lodge. The applicant declined to do this and brought Class 1 proceedings against Council’s deemed refusal.

11. Those Class 1 proceedings came before Sheahan J to determine the question of whether or not it was competent to prosecute an appeal more than 12 months after the date the original application had been lodged. His Honour (Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71), found that it was not.

12. Immediately after his Honour’s decision, on 30 October 2000, the applicant lodged the present application (DA2000/5096). Part of the problem which was ventilated in the present proceedings arose out of the manner of approach by the applicant to the question of use of the triangle for access. In a letter accompanying the application, the applicant’s architects requested the Council’s consent “…in writing for the lodgement of the Development Application”. Although any proposal for the use of the triangle was not stated in the letter, the plans which accompanied the application showed an “entry/exit - Proposed R.O.W.”, for pedestrian and vehicle access across the triangle.

13. That application (DA2000/5096) was again referred by Council to the consultant, Scott Carver, for assessment. Previously when Scott Carver, had been engaged in September 1999 to advise on the 1997 application, they advised the deletion of a floor. That floor had been deleted in the amended drawings lodged between October 1999 and March 2000. In the fresh development application (DA2000/5096) that floor remained deleted.

14. The fresh application was the subject of a request by Council on 27 November 2000 for more detailed information. Also on that day Council received legal advice concerning the capacity of Council to deal with the question of access across the triangle. The triangle was then zoned General Business 3A, and the balance of the Park was zoned Existing Recreation 6(a) – Community. The advice was to the effect that Council had the power, as owner, to grant consent for the purpose of ingress and egress, across the triangle.

15. Having lodged amending plans in December to delete “sun hoods” which projected along the northern boundary into air space above the Park, the applicant proceeded to further significantly modify the proposal. On 1 March 2001 it lodged plans which deleted one residential floor, the lowest level of car parking, and modified the two top floors. The Council decided on 22 March 2001 to retain Mr Harvey Sanders of Design Collaborative Pty Ltd, to advise on this amended proposal.

16. In light of the issues which have been argued in these proceedings, a report to Council on 27 March 2001, recorded legal advice to the effect that the application which had been lodged on 30 October 2000 was valid, that the savings provision of the Warringah LEP 2000 (which came into effect on 5 December 2000) applied, and that the use of the triangle for access was permissible with the Council’s consent. Although the Council report observed that the question of access across the triangle was “not before the Council at this stage”, the report none the less went on to recommend that Council resolve to grant consent to the Development Application.

17. The General Manager’s report to Council to which I have just referred came before Council in its governance committee meeting that same day 27 March 2001. However on two occasions sufficient number of Councillors vacated the chamber when the question of owner’s consent arrived on the agenda, such that the Council was left without a quorum. The applicant was informed of this two days later, and that its “request for owner’s consent remains deferred…”

18. Consideration of the proposal by Mr Harvey Sanders led him to make a variety of suggestions which were met by the applicant lodging further amended plans on 13 June 2001. This was to no avail however as the matter went forward before Council on 19 June 2001 with a recommendation for refusal, which the Council accepted. The formal notice of refusal issued on 25 June 2001 identified 10 reasons for refusal, which in summary were absence of owner’s consent, height and number of storeys, building mass, desired future character, and bulk and scale.

Planning Regime

19. Warringah Local Environmental Plan 1985 (“WLEP 1985”), pursuant to amendment No 32, zoned the subject land as General Business – 3A. That zoning permitted alterations and additions to existing commercial premises to include both commercial and residential components. Amendment No 32 to WLEP 1985 was gazetted on 23 September 1988. Its purpose was to rezone the triangle “in recognition of (that) land not being required for open space recreation purposes as permitted under the current zoning”. This rezoning of the triangle was to enable vehicular access to the proposed building on the subject site.

20. In 1993 the Council engaged the Travis McEwen Group to provide a shire wide Urban Design Strategy, which was to give guidance as to the future development in the shire and in particular for the Dee Why town centre. That strategy identified opportunities as to redevelopment within the Dee Why town centre, relevantly as: -

· The south east corner sites of the intersections of Pittwater Road and Howard Avenue and Pittwater Road/Dee Why Parade, offer locations for landmark buildings because of their height and visibility. Landmark buildings are characterised by increased height compared to their neighbours and a high quality of design.

· A general streetscape improvements programme for the Dee Why centre and beach area is essential to both enhance the physical appearance of the areas as well as business prosperity.

It is important to recognise that the Dee Why town centre has been nominated in the metropolitan strategy as a subregional centre. This makes Dee Why comparable to other subregional centres such as Chatswood, Bondi Junction, Liverpool, Penrith, Blacktown and Sutherland. Dee Why is the only subregional centre on the Manly/Warringah peninsular…

21. The Dee Why town centre was broken into a variety of “redevelopment sites” in the Strategy, and for present purposes the subject site was included in the area as “redevelopment 5”. This area was to have a maximum height of six storeys, and a maximum floor plate of 1000 m2 above four storeys. The purpose of the 1993 Strategy was to investigate ways to revitalise the commercial centre of Dee Why. The result of that Strategy was the preparation of a Draft LEP in 1995. That draft went through a variety of redrafts, part of which ultimately incorporated a study by Dickson Rothschild Architects, of 9 December 1997. That study confirmed the earlier suggested height limitation of six storeys, but also recommended a maximum height of 24 metres. The study led to the Council adopting DCP 24 “Dee Why Town Centre” on 23 June 1998.

22. DCP 24 required the Council, before granting consent, to be satisfied that a proposal was consistent with the identified Desired Future Character in the relevant locality. The DCP then set out a variety of Locality Statements, and as to the construction and implication of those statements, it provided:

(7) It is not necessary, however, to comply with the built form control to obtain approval for a development. Nor indeed does strict compliance with the built form controls guarantee approval. The overriding concern in all instances is to ensure development conforms with the General Principles of Development Control and is consistent with the Desired Future Character of the locality.
(8) In this respect, Council may vary a development standard contained in this plan if the resulting development is consistent with the General Principles of Development Control and the Desired Future Character of the locality.

23. The Desired Future Character of the Locality within which the subject land was located (the Pittwater Road locality), is in part described as follows:

Buildings should define the streets and public spaces and create environments that are appropriate to the human scale as well as comfortable, interesting and safe. In particular, future development should ensure that a 4 storey podium adjoins the sidewalk and establishes a coherent parapet line along Pittwater Road. Above the parapet line additional storeys should be set back to maintain solar access to the sidewalks and ensure that the scale of buildings does not dominate public spaces. Building facades should be articulated in such a way that they are broken into smaller elements with strong vertical proportions and spaces should be created between buildings at the upperlevels to add interest to the skyline, reduce the mass of buildings and facilitate the sharing of views and sunlight.
The overall height of buildings should be such that long distance views of Long Reef Headland and the top of the western escarpment and the Norfolk Island Pines adjoining Dee Why beach are preserved.

24. The DCP provided a six storey and 24 metre height constraint in relation to the subject site, allowing however a 26 metre limit for the site on the corner of Dee Why Parade and Pittwater Road (flowing no doubt from the 1993 Strategy which identified that site as a landmark building, at a “gateway site”).

25. In measuring a storey as the space between two floors, the DCP also excluded from calculation “…garages… which do not project above natural ground level (at any point) and mezzanine floors on top floor apartments are not counted as storeys…”. This definition opened an argument as to the meaning of “natural ground level”, and how it was to be ascertained.

26. On the question of access, map No 3 in DCP 24 identified as a “laneway location”, a portion of St Davids Avenue which straddled from the driveway to access the church property to the west of the subject property, to the eastern side of the triangle at the western apex of the Park. This suggests that the “laneway location” was intended to allow for laneway vehicular and pedestrian access across the triangle. The 1997 Dickson Rothschild Study showed a proposed future laneway located generally along the common property boundary between Lots 3 and 4 DP 417528.

27. The DCP also provided in relation to building mass, that the floor-plates of upper floors would be constrained as to 30 per cent for the top most storey in relation to ground floor floor-plate, 50 per cent for the top most storey, and 70 per cent for the second top most storey.

28. When DCP 24 was adopted by the Council on 23 June 1998, the Council was the proprietor of Lot 4 DP 417528. That lot abutted the subject property immediately to its south, and was of a similar rectangular shape, except for a portion which extended to the rear onto St Davids Avenue. Although in a commercial zone, the Council had used the building on that land for purposes associated with its ordinary functions. The Council sold that land to Parkview Farm Pty Limited in early 2000 with a restriction that required that access to the land be via way of a laneway along the western boundary of that property, onto St Davids Avenue. Evidence was given that draft plans had been prepared showing access along such a laneway. Given the traffic evidence in the present hearing it is reasonable to conclude that such a laneway, including access across the triangle to the subject property, would not present problems from a traffic and safety viewpoint.

29. On 5 December 2000 Warringah Local Environmental Plan 2000 (WLEP 2000) was gazetted. Clause 5 thereof provided:

5 What effect has this plan on other environmental planning instruments?

(1) Except as provided by subclause (2), the following environmental planning instruments do not apply to the land to which this plan applies while this plan has effect:

State Environmental Planning Policies Nos 1, 4, 5, 6, 9, 11, 19, 21, 22, 23, 33, 35, 44, 45, 55, and 56,

Sydney Regional Environmental Plans Nos 9, 20, and 21,

Warringah Local Environmental Plan 1985.
(2) Any development applications submitted before, but not finally determined when this plan took effect for the land to which they relate, are to be determined as if those other environmental planning instruments continue to have effect and as if this plan had been exhibited but had not been made.

The draft plans prepared by Parkview Farm Pty Limited showed the proposed laneway located along the western boundary of Lot 4 DP 417528 with the proposed building bridging over the laneway and extending at ground level and above along the remaining St Davids Avenue frontage adjoining the subject site.

30. One of the issues in these proceedings is whether or not the savings effect of cl 5(2) is operative. The argument on behalf of the Council is that the development application lodged on 30 October 2000 was not, relevantly “submitted” insofar as it did not contain the owner’s consent to the triangle, and hence fell foul of the requirements of s 78A of the Environmental Planning and Assessment Act 1979, and clauses 46 and 46A of the Environmental Planning and Assessment Regulation 1994. That argument is only sustainable if the triangle is a part of the development application. The applicant made it plain that it was not, and for that reason, that argument falls away.

31. Clause 17 of WLEP 2000 relevantly reads:

17 How will the use of public open space be controlled?

…

(2) Public open space can be developed for any purpose that is consistent with a plan of management applying to that public open space.
(3) In the absence of a plan of management, only exempt development and development for the purpose of recreation facilities can be carried out on public open space.

32. In accordance with the reclassification of land within the shire pursuant to WLEP 2000, the Park and triangle were changed in their zoning classification to “public open space”. That change however is only relevant in a determinative sense if the application fails to obtain the benefit of the saving provision in cl 5(2); if the application is so saved then cl 17 is treated as “exhibited but not made”, as is the changed zoning. For the reasons I will turn to shortly, cl 5(2) does operate to preserve WLEP 1985. Hence in assessing the proposal cl 17 does not work as a bar as the Council contended. However the objective of the reclassification of the Park from community to operational was, in the context of this matter, to facilitate the proposed access across the triangle to the subject site.

33. On 22 December 2000 Warringah Local Environmental Plan (“Reclassification”) was gazetted, which altered the classification of St Davids Avenue Park from “community to operational”. Council’s Plan of Management only dealt with community land. Hence, absent a Plan, it was submitted by Council that the newly zoned “Public Open Space” of the Park and triangle could not be used for access (per cl 17(2) and cl 17(3)). Again this bar only operates if cl 5(2) does not apply, and as I find it does apply, cl 17 does not run.

34. The injunction presented by cl 5(2) of WLEP 2000 is that assuming the present development application is accepted as being “submitted” and having the protection of that clause, the instruments identified in cl 5(1) continue to have effect “as if this plan (ie WLEP 2000) has been exhibited but not made”. In effect one removes from the planning regime WLEP 2000. One of the effects of taking WLEP 2000 out of the planning scenario for the purpose of assessment is that whilst it reinstates WLEP 1985, it (WLEP 2000) also superseded and replaced DCP 24; it is plain that the legislative intention in promulgating WLEP 2000 was to incorporate within its provisions those standards which previously appeared in DCP 24, and which were pertinent to the interpretation of WLEP 1985. Like an exemption for fire brigades on from obeying speed limits not extending to an exemption from obeying traffic lights and other restrictions (Buckoke v Greater London Council [1971] 1 Ch. 655), the exemption from WLEP 2000 of WLEP 1985 does not extend to the exemption of other instruments and policies made or adopted by the Council.

35. Notwithstanding all experts in the matter accepting that in the event of WLEP 2000 not applying, then DCP 24 would, on a strict construction WLEP 2000 only kept alive WLEP 1985, and repealed DCP 24. However both the Council, and the applicant, have relied upon the standards in DCP 24, as parameters against which, or within which to assess the proposal. Further, because cl 5(2) of WLEP 2000 keeps alive, specifically, “those other” instruments referred to in cl 5(1), the effect of it is in relation to instruments not mentioned (and by inference Policies also not mentioned) is that they have been subsumed within WLEP 2000, or repealed by it. However this construction would lead to the peculiar result that whilst WLEP 1985 continued to be the primary Instrument in control of the present application, Policies adopted under it, and made for its amplification, are to be disregarded. The result would be a vacuum in planning terms, plainly not intended by the objective of cl 5(2) of WLEP 2000, viz, to ensure that in relation to development applications not determined before WLEP 2000 took effect, the applicant was entitled to have an application assessed subject to the planning regime which operated before it was gazetted.

Issues on Appeal and Submissions

36. The issues fell into two broad areas – firstly the question of permissibility and secondly the merits of the proposal. Witnesses for the applicant were Mr Robert Player, planner, Mr Stephen Camillo, architect, and Mr Michael Harrison, planner; the Council called Mr Harvey Sanders, planner, and tendered four letters of objection.

Permissibility

37. The Council submits that WLEP 2000 works a prohibition on use of the triangle such that an essential part of the application, namely the ingress and egress of vehicles and pedestrians, cannot be provided. However this is only true if the application is not saved by cl 5(2) of WLEP 2000, leaving to one side the question of whether or not the triangle is included in the application for consent. Council submits that as this essential aspect of access is missing from the application, it ought be refused until use of the triangle for access is both lawful, and the right of access is available to the applicant.

38. Council’s initial submissions in this regard were founded on the assumption that the application for consent included an application for the Council’s consent for use of the triangle – ie for the development approval to work as a consent by the Council as consent authority and owner for the use of that land.

39. Mr Tobias submitted that because the formal application did not contain the consent of Council for the use of the triangle, then the requirements of s 78A of the EP&A Act, and Regulation 46(1)(b) dictated that the form of application was incomplete and ineffective, and by analogy with the decision in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446, there was no application relevantly “submitted” before WLEP 2000 took effect. Similar to the absence of an EIS in Remath, the absence of owner’s consent meant that an essential aspect of the application had been omitted, and there was not a “submitted” application which satisfied the statutory requirements.

40. The thrust of this argument falls away with the removal of any suggestion that the triangle was to form part of the consent proper. Owner’s consent for the triangle is only necessary if the application is for its use, and Mr Hemmings withdraws that suggestion, accepting that any application in that regard is for another day. It is still relevant to assess whether, under s 79C access can be provided, is satisfactory in practical and planning terms, and can be properly assessed in that regard.

41. The need to make adequate and proper consideration of relevant matters as referred to in Parramatta City Council and Anor v Hale and Ors (1983) 47 LGRA 319, was amplified by the Court of Appeal in Weal v Bathurst City Council and Anor (2000) 111 LGERA 181. In referring to the earlier decision Giles JA opined:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (at par 80).

His honour, after noting the injunction by Talbot J in his decision in Remath Investments No 6 Pty Ltd v Botany City Council (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported) not to “…leave unresolved and for future determination issues, known and unknown, in respect of the development” (par 93), went on to emphasise the need to understand, consider and evaluate, requisite matters and impacts, and not defer them to a later time (par 94).

42. Mr Hemmings points out, that here both traffic experts agree that access over the triangle is acceptable. Unlike the situation in Weal (op. cit.), any deferred operation consent does not mean that the impact of use of the triangle is not, and cannot be assessed in the present circumstances. Unlike Weal an essential item is not being omitted from consideration, but to the contrary, has been given proper consideration. Mr Hemming submits that the question of lawfulness can be determined in the applicant’s favour either under WLEP 1985 where access was lawful and permissible, or under WLEP 2000 where pursuant to cl 17 use is still permissible with consent – the Council has that power, as well as the power to deal with public open space pursuant to a plan of management. Mr Hemmings submitted that the question of both lawfulness of user, and obtaining the right of use, was not unlike many other instances of a development requiring agreement and cooperation from neighbours for development to be carried out, for example with subdivisions, or for the construction of most commercial buildings fronting a public footpath.

43. In Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113, an application for change of use from a hairdresser’s shop to a gourmet food shop required the fitting of external ventilation exhaust to the common property of the building within which the business was located. That the application did not relate to the common property, and the consent of the body corporate did not accompany the application, did not prevent the Court from granting consent. The consent was conditioned on the ventilation exhaust being installed, with the applicant left to secure the consent of the body corporate for those works. As Sheahan J said in Bluewater District Services Pty Ltd v Sutherland Shire Council (1998) 97 LGERA 389, the obtaining of the Court’s consent “…is but one stage or hurdle in a series of events and approval processes which must be pursued/concluded between the conception of a project and its completion” (at p 393, citing Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 400). There his Honour upheld a consent notwithstanding the need for further works on common property, which works would require the consent of the body corporate.

44. In Grace Bros (op. cit.) a challenge was raised to a consent granted where access was proposed over land which was neither included in the application, nor in respect of which its zoning would permit access; and further the consent could not operate whilst a Residential District of Proclamation operated. None of these matters in the opinion of Wootton J were fatal to the consent. Like the present case, the land over which access was to be provided formed no part of the development application; arrangement for access over that land was left to another day. Significantly his Honour observed that if he was wrong in his conclusion as to whether or not that land for access was included in the application, that aspect of the consent was severable (at p 415). Here, as in Grace Bros, the applicant would not be able to proceed unless the objective is achieved of legal access being available across the triangle, and there being a grant of a right of way for that purpose. The fact that it is not available now, does not preclude determination of the application so long as the impacts which prospectively flow from such access being ultimately obtained are taken into consideration when assessing the present application (North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 at 481; see also Currey v Sutherland Shire Council and Anor (1997) 92 LGERA 85 at 90).

45. With the triangle not forming part of the application, the question of the consent of the Court, as the consent authority standing in the shoes of the Council, although argued lost its significance. Here, unlike decisions in Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181, and Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231, the consent of the Council (or the Court) was and is not being pursued for actual use of the triangle.

46. Mr Tobias submitted that one could not assume either what the law may be in the future or that the Council would eventually grant a right to the applicant for the use of the triangle, and that in those circumstances a determination in favour of the applicant would be premature. Reference was also made to the prospect of obtaining a right of way pursuant to s 88K of the Conveyancing Act 1919. Recently such an application was successful (Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, Bryson J, unreported). Of course there is no guarantee that here such an application would be successful, but as Mr Hemmings points out there are a plethora of examples of applications for consent by a Council which require some further permission consent or licence from a third party, and sometimes from many more than just one other instrumentality or government authority, for a council’s consent to be actioned. If Council’s determination of applications were to remain in abeyance and deferred pending the obtaining of all other necessary consents, the planning system in this State would descend into chaos.

Merit Matters

47. The merit matters which receive considerable attention in the reports and evidence of the experts, and in submissions encompass the questions of access, the number of storeys, the design and bulk of the proposal, all these in the context of development standards and planning controls.

(i) Access

48. Mr Tobias submitted that where access was an essential aspect of the application and was missing, and in circumstances where not only was it not currently available but that there was no basis upon which it could be anticipated it will be available in the future, that it would be a misuse of the Court’s discretion to use a deferred commencement provision to enable the application to proceed subject to access being ultimately made available. For reasons I have referred to earlier (par 45 – 46), so long as the conclusion is reached that in relation to planning impacts flowing from access across the triangle being properly considered, evaluated, and resolved, the impediments to which Mr Tobias refers can await determination at a later time. The absence of Council’s approval, or cooperation to facilitate access over the triangle, does not preclude or bar consideration of the merits of the application in that regard.

49. It is not without significance that the applicant originally proposed access from Pittwater Road, but following Council’s recommendation and request, altered the access to that now proposed across the triangle. Given the established entitlement of an owner of land adjoining a highway to have access to and from the highway (Marshall v Blackpool Corporation [1935] AC 16, at 22, cited with approval by Clarke JA in Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231 at 235), it is reasonable to expect that common sense will prevail in the present circumstances. Such an observation of course in no way compels the Council to grant consent across the triangle, but on the material before the Court, logic dictates that this should happen.

50. Mr Tobias expressed apprehension that to grant consent predicated upon access being obtained in the future, may leave the present proposal in some suspended state, given that changes to the planning regime may occur such as to preclude forever the possibility of access across the triangle. However the obligation at present is to look at the material as it stands at this point in time, and not be deflected by supposition or hypothetical analysis as to what may or could occur in the future. That the planning regime may change in the future does not mean that a consideration of the present application, and granting consent to it, would be premature. Consent for access over the triangle is presently within the gift of the Council, and on the material before the Court it is not unreasonable to expect that that issue would be resolved in a relatively short time frame.

51. As merit considerations of vehicular and pedestrian access across the triangle were all resolved in favour of that access being provided, this issue is concluded in the applicant’s favour.

(ii) Number of storeys

52. Apart from access this was the most contentious of the issues. There was no argument that whichever count of number of storeys applied – six for the applicant, seven for the Council, the proposal met the maximum height control of 24 metres. These controls are found in DCP 24 and also repeated in WLEP 2000.

53. The calculation on the number of storeys depends upon where the natural ground level (“NGL”), is fixed. DCP 24 defines NGL as “natural ground level in relation to site means the level of the site as if the land comprising the site were undeveloped”.

54. A similar approach is taken in the December 2000 Warringah Design Guidelines for WLEP 2000 in relation to building height; it incorporates the LEP definition of the site “…as if the land comprising the site were undeveloped. If a site has been filled or excavated, it may be necessary to estimate the natural ground level based on the providing topography”.

55. There is no issue that some excavation has taken place on the site, the question is how much, and where. As development of land requires for the implementation of development the disturbing of the natural topography and the soil levels, the levels which need to be ascertained are those which existed prior to any earthworks being done on the site.

56. Mr Harvey Sanders counts seven storeys by taking the natural ground level as the existing ground level as surveyed. He makes no allowance for any excavation on the site, and hence he concludes that the proposal exceeds the six storey constraint for approximately two thirds of its length.

57. Mr Camillo, the applicant’s architect, relied on photographs taken in 1943 and 1953 and rock face cuttings on the northern side of St Davids Avenue coupled with the grade of that road and the juxtaposition of the subject site with the Park on its boundary and in particular at the Pittwater Road edge, to conclude that there has been substantial excavation of the site. He estimated that at the rear of the site on its western boundary, the original ground level was some three metres higher than that presently existing; his opinion is that that difference continued throughout the site until about 12 metres from Pittwater Road where it angled down towards the level at the footpath.

58. Mr Player, the planner retained by the applicant, although originally accepting Mr Camillo’s opinion said that access to aerial photographs between 1951 and 1972 during the conduct of the hearing in Court, cause him to revise and lower the natural ground level as previously estimated by Mr Camillo. Mr Player’s new estimate of natural ground level commenced about one metre lower than Mr Camillo’s point on the western boundary, and projected to a point about one metre above the footpath at the Pittwater Road boundary (see exhibit K1, and exhibit 13).

59. Whilst on the site inspection it was suggested there was an observable “cut” or excavation in the lower portion of the grassed rear section of the site. The levels shown on the site survey (exhibit 7) by Mr Gardner (surveyor) demonstrated depression or “dip” in that area. Notwithstanding the parties each accepting that there was some excavation in this area it would in my view be speculation to conclude that the depression was the result of earthworks, and not the original ground level.

60. The aerial photographs between 1943 and 1972, coupled with levels in the Park, and levels of ground floor developments on lots to the south of the subject site in Pittwater Road, permit an inference that the original level at the Pittwater Road boundary of the subject site was about a metre higher than at present. However the aerial photographs, coupled with the construction of the second storey extension on piers on the south western side of the subject site suggest that there has been little or no excavation on the rear of the site. The aerial photographs show a small structure constructed on the north western corner of the site sometime between 1943 and 1951, but being removed or demolished sometime between 1965 and 1972. Whilst one might infer that this structure was built at natural ground level at the northern corner of the block, and there has been no changes in that area, this would be speculation.

61. The applicant submits that a photograph taken in Pittwater Road looking in a northerly direction showing a structure on the subject site, when coupled with the aerial photographs from 1943 and 1951, demonstrate that the structure (which is some five or so metres back from Pittwater Road) is elevated by about two metres. That would be so so long as the structure is not a two storey building. Along the southern side of that building is a driveway, and the roofline/structure of the building can be seen in aerial photographs up to 1965; vehicles can be seen to be parked in that driveway in the 1956 aerial photograph. If this is so, given the height of cars parked in Pittwater Road, it suggests that the building at the front of the lot close to Pittwater Road was in all probability a two storey structure or at least one which had added height for some particular purpose.

62. When the presently existing buildings on the site were constructed (some time between 1965 and 1972 according to the aerial photographs), there is nothing in the evidence to suggest that the rear of the site needed excavation for the construction of what now exists to the rear along the south western boundary of the site, as offices built on piers. To the contrary, the construction having been built on piers is strong evidence that there was no excavation.

63. Whilst the aerial photographs provide an interesting history of the site, and one can discern various structures appearing and being replaced, it is impossible to draw any reliable conclusions from the alterations in those photographs as one is left without any indication of levels. In this regard it has been most unfortunate, given the amount of time and argument devoted to discovering what the natural ground level was, that a photogrammetrist was not engaged to produce readings of relative levels, from those aerial photographs. Were this done, a simple correlation from those readings with the present levels would have told us what has happened, at least since 1943.

64. To accept either Mr Camillo’s or Mr Player’s estimate one needs to conclude that an inordinate amount of topsoil was removed from the site for the purpose of its development at different times. For Mr Camillo some three and half to four metres of topsoil over approximately three quarters of the site would need to be removed, and for Mr Player about a one and a half metres depth of topsoil over the same area. No practical rationale, or economic reason, was (or in my view could be) advanced as to why such a large volume of topsoil would be excavated from this site, to enable the construction of otherwise modest structures.

65. In my view the evidence only permits a conclusion of some excavation at the front of the site of about one metre, or perhaps up to one and a half metres. If there has been disturbance of the rear of the site, it has been minor.

66. This leads to the reading of the number of storeys more closely in accord with the approach of Mr Sanders, notwithstanding the allowance of some excavation at the front of the block. With that excavation the proposal would still be calculated at seven storeys. However the “wedges” of exceedence of the six storey limit are two sections of the car park where the area which offends is approximately half a storey (about 1.5 metres because of the height of the street level car park) at its maximum.

67. Given the compliance of the proposal with the maximum height limit, other matters considered in relation to the merits of the design, the bulk of the structure, and the planning constraints, I do not regard this exceedence as either determinative, or fatal to the application.

(iii) Planning controls - development standards

68. As previously mentioned, due to the operation of cl 5(2) of WLEP 2000, the relevant LEP is WLEP 1985, and whilst DCP 24 has been replaced by WLEP 2000, it (DCP 24) has provided the policies and standards against which the proposal has been assessed. Raised as a discrete issue was the question of compliance with those policies and standards.

69. The assessment also however is in the context of WLEP 2000 being treated as “exhibited but not made”, although given the weight which the Council has placed on WLEP 2000 both in the identification of the issues, and the analysis of the proposal under those issues one could be forgiven for thinking that the planning regime had been reversed, and with the 2000 Plan being the controlling and dominant instrument.

70. Clause 4 of DCP 24 provides:

…before granting consent for development Council must be satisfied that

(a) the development conforms with the General Principles of Development Control and
(b) the development is consistent with the Desired Future Character described in the relevant Locality Statement

71. The general principles of development control in the DCP are many and various – to be found under the headings “Miscellaneous, Public Domain, Site Planning and Building Design, Traffic Access and Parking, and Soil and Water Management”.

72. The DCP indicates how locality statements which identify desired future character are to assist (see par 22 and 23 above).

73. Mr Sanders, expressed the view that the proposal was neither consistent with the General Principles of development control nor with the Desired Future Character of the locality, whilst for the applicant Mr Player, Mr Camillo, and Mr Harrison were all of the view that there was compliance with both the General Principles and the Desired Future Character. Weighing the opinions of all of these experts, and with the benefit of a view of the site coupled with the photo montages which were in evidence, I have concluded that the proposal, rather than not being consistent with these controls, and notwithstanding the arguments in relation to the numerical requirements of the built form, both satisfy the General Principles and the objectives of the Desired Future Character.

(iv) Design and bulk

74. The issues which can be subsumed within this heading concern the height of the proposal, number of storeys, and building mass.

75. Mr Sanders conceded that due to the relationship between the subject site and the Park, any development within the numerical constraints of either WLEP 1985, or WLEP 2000, will be “relatively prominent, particularly the north eastern elevation which adjoins the park” however the present proposal is in his view insufficiently set back, insufficiently stepped in its upper storeys, and overall its height bulk and scale as it presents both to the Park and to Pittwater Road is excessive. In the context of the exceedence of the storey control by one storey he is of the view that the Building Mass control in DCP 24 is exceeded on the three top storeys of the proposal.

76. The spring board for Mr Sanders’ opinion is his calculation of the number of storeys being seven, rather than six. As I have indicated earlier, those portions of the car parking levels which cause the building to count as seven storeys are not whole floors, but portions which whilst counted as storeys under the definition, ought not be given the weight attributed to them by Mr Sanders. It was demonstrated in evidence that the number of storeys within the building envelope can be reduced merely by a design change (exhibit K2), there being another example of this method of rearranging levels such as to avoid the counting of “a storey” (namely the plans for the redevelopment of the Grand Reef building, to be known as Dee Why Stroll, exhibit 14).

77. In further answer to this complaint the applicant says that if the subject site were developed for commercial purposes, all with mezzanine floors, a proposal could comply with the six storey control and yet be built higher than the present proposal and up to the 24 metre maximum height limit. Mr Player gave evidence that an additional residential storey could be added to the proposal and it would still comply with the 24 metre building height limit under DCP 24. Whilst Mr Tobias submitted that this “envelope” of possible maximum of development did not provide for or demonstrate the “wedding cake” massing control for the top three storeys, nonetheless the proposal and overall height is lower than that which could have been applied for. Further, the complaint made by Mr Sanders as to the exceedence of the building mass control only has validity because the proposal counts as seven and not six storeys; if it counted as six storeys (ie if for present purposes one ignored the basement level), then the proposal substantially complies with the requirements of the control. Mr Harrison said it was unclear why Mr Sanders did not accept that the Building Mass control was complied with; in his view it did.

78. The design of the building is described as providing a “four storey podium with a coherent parapet line along Pittwater Road wrapping around to the St Davids Park north eastern elevation”. The design provides for the stepping back of the upper levels with the facades to St Davids Avenue being both indented and stepped. The facades both onto Pittwater Road and fronting St Davids Avenue Park are broken and well articulated, and incorporate an interesting mix and blend of materials and finishes. Mr Camillo the architect describes his objective of rearranging the features of the facades to achieve a “…cohesive blend of shadow, shade and texture”. His opinion that the relevant element of the desired future character statement is complied with, is supported by both Mr Player and Mr Harrison, and I accept that evidence.

79. As Mr Hemmings submits, the visual impact of the proposal needs to be assessed not only in light of what exists in the immediate environs of the proposal, but also in the context of the expected future development both adjoining the subject site, and within the precinct.

80. I have already mentioned the draft plans being prepared for Parkview Farm Pty Limited for the adjoining lot to the south.

81. Much time in evidence was devoted to six other development sites in the commercial area of Dee Why – the Kallista building at 637-641 Pittwater Road, the Benchmark building at 645-647 Pittwater Road, the Topland building on the corner of Dee Why Parade and Pittwater Road, the Grand Reef building at 610 Pittwater Road and Howard Avenue, the Dee Why Hotel on the corner of Pittwater Road and Sturdee Parade and finally the Dee Why Fruit World site at the corner of Sturdee Parade and Delmar Parade West. These were examples of either structures recently completed, or the subject of consents which in all probability would be commenced in a relatively short period of time. They were analysed by Mr Player in his statement of evidence, and demonstrated he said that the traditional low rise two – four storey commercial buildings in Dee Why were being replaced by medium rise six – seven storey mixed retail/commercial and apartment buildings which had strong vertical proportions and stepped facades. For present purposes I don’t regard it necessary to analyse these sites in the detail with which they were pursued in evidence. Cumulatively they demonstrate that the Council has continued to exercise a feasible approach and a considerable degree of discretion in applying the standards in its planning instrument and policies; the present application is no different. Mr Tobias submitted that the present application was distinguished from these examples by significant departures from the standards in the instant application; he argued that the present proposal ought be lowered to reduce its mass. In my opinion that is unnecessary; the exceedences or departures in some of the examples were for greater than what is proposed here.

82. There is however one aspect of Mr Player’s evidence which I should mention. In cross-examination Mr Tobias demonstrated to Mr Player that a particular control exceedence in relation to the Topland building had not been described with sufficient accuracy by him in his evidence. As to the Benchmark development it was suggested that Mr Player’s analysis did not candidly reveal the background to that proposal. In the context of the use that was being made of these examples, this criticism of Mr Player was pedantic. It certainly was not a sufficient foundation for the submission put that he had played “fast and loose” with the evidence, and I reject that submission.

83. Mr Harrison, part author of the 1993 strategy, was engaged by the applicant to provide an independent assessment of the proposal in the context of the 1993 Strategy, the 1997 Study, and the DCP’s objectives, Mr Harrison was of the view that the proposal was entirely consistent with those earlier visions, and the relevant objectives. Given that the probable redevelopment in the surrounding environs will be within the 24 metre height constraint, the proposal will in his view “fit well”. I agree with that conclusion.

Conclusion

84. The question of access from a planning point of view has been adequately addressed, and the issue as to legality of access and the availability of access is deferred to another time. As to the merit matters argued, notwithstanding the exceedence of the storey control, I am of the view that the proposal meets the relevant principles and desired objectives for future local character, and in particular the overall vision enunciated for the development of the Dee Why shopping precinct. The impacts which will flow from construction of the development are not such as to warrant its refusal. If constructed in accordance with the plans and described finishes, the development in my view will add a positive element to the revitalisation of the shopping centre, and present not just as an acceptable, but attractive structure.

85. As to conditions the Council submitted that a deferred commencement condition was inappropriate, for the reason that the application should be rejected until both the legality of access, and the achieving of actual access, in relation to the triangle, was obtained. For reasons I have already referred to, such an approach is in my view unwarranted.

86. Council had drafted a deferred commencement condition which required, before the operation of the consent, an LEP to permit development over the triangle, the granting of consent for the use of the triangle for that purpose, and then the registration of a right of carriageway over it. The consent was to be predicated on the applicant being able to comply with those requirements within two years of the date of the consent. Mr Hemmings submitted and I accept, that this approach is unduly restrictive and unnecessary. Nor Mr Hemmings submitted was it appropriate for the conditions to recite that the consent did not grant approval to use of the Park or triangle. Although that land forms no part of the application, Mr Hemmings did not resile from the argument that it was within the Court’s power to approve the application for use of the triangle for access purposes (Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181 at 186, Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231 at 237). However this approach takes the argument back to a consideration of issues 1A and 1B, which were disposed of (other than for planning implications) by withdrawal of the triangular portion of land as part of the application.

87. The deferred commencement conditions drafted by Council were objected to by the applicant. However their deletion Mr Tobias submitted would lead to a consent enabling construction of the building such that upon completion the applicant would “hold a gun at the head” of the Council, to force the granting of an easement. The same would apply, he submitted, if the consent was conditioned on the obtaining of an occupation certificate, post construction.

88. Rather than allow circumstances to arise which may be the spring board for further argument between the parties it appears in my view preferable for a form of deferred commencement to issue, albeit with a condition which triggers the operation of the consent upon the obtaining of legal access by way of either a right of way or a transfer of the land itself.

Orders

89. Formally I order: -

1. The appeal be upheld.

2. Consent is grated to development application No DA 2000/5096 in accordance with the conditions of consent attached hereto.

3. The exhibits to remain with the Court for 28 days and to then be returned.

CONDITIONS OF DEVELOPMENT CONSENT

No 701 Pittwater Road, Dee Why

DA No 2000/5096

A. Conditions of deferred commencement required to be satisfied prior to the consent operating.

1. This deferred commencement consent is granted under Section 80(3) of the Environmental Planning & Assessment Act 1979 and shall not operate until the applicant has satisfied the Council it has obtained either a right of carriageway for vehicular and pedestrian access over, or had transferred to it, the title to, that part of Lot 1 DP 364010 in the north western corner of St Davids Avenue Park having an area of approximately 27.3 m2 being triangular in shape and having dimensions of approximately 9 metres onto St Davids Avenue, and 10.85 metres on its boundary with Lot 1 DP 300967 and being approximately 6.07 metres on the shortest side of the triangle.

B. Other Conditions

1. Development being generally in accordance with drawings prepared by Leffler Simes Pty Ltd Architects Project No 1500 numbers DA01/C, DA02/C (both amended to 14 December 2000); DA03/G (amended to 13 June 2001); DA04/K (amended to 22 July 2001); DA05/H, DA06/E, DA07/E, DA09/F, DA010/F (all amended to June 2001); DA011/B (amended to 19 February 2001); DA012/G, DA013/J (both amended to 13 June 2001); DA014/D (amended to 23 May 2001); DA016/B (amended to 18 June 2001); DA017/A (amended to 14 December 2000); DA019A (amended to 25 June 2001); Stormwater drainage plans prepared by LHO Group Project No 00240 drawing numbers HSK 01B and HSK 02B (amended to 12 June 2001) and drawings prepared by Hortulus Project No 1500 drawings numbers LP01B and LP02B (amended to 19 June 2001) as modified by any conditions of this consent.

2. At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998 of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence. (C168)

3. Toilet Facilities

a. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

b. Each toilet provided:

(i) must be a standard flushing toilet, and

(ii) must be connected:

A. to a public sewer, or

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

d. In this clause:

4. Compliance with Building Code of Australia

(1) All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(2) This clause does not apply to the extent to which an exemption is in force under Clause 80H or 80I, subject to the terms of any condition or requirement referred to in Clause 80H (6) or 80I (4). (C375)

5. To ensure compliance with the minimum requirements of the Building Code of Australia and associated Australian Standards, the building being constructed in Type A Construction (Part C of Building Code of Australia). (C395)

6. Residential Building Work

(1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the principal certifying authority for the development to which the work relates:

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

(i) has been informed in writing of the licensee’s name and contractor licence number, and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, OR

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

(i) has been informed in writing of the person’s name and owner-builder permit number, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

NOTE.

The amount referred to in paragraph (b) (ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (C377)

7. Provision of a continuous balustrade to any stairway, ramp or balcony which is more than 1 metre above the floor or ground surface beneath. Balustrades to be a minimum height of 1000mm (or 865mm above stair nosings) with openings not exceeding 125mm. Ref.D2.16 of the Building Code of Australia and Ref.3.9.2, Vol 2, Building Code of Australia. (C216)

8. Excavations and Backfilling

(1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

(2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. (C378)

9. Retaining Walls and Drainage.

If the soil conditions require it:

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

(b) adequate provision must be made for drainage. (C379)

10. To ensure the safety of occupants of the building a “Fire Safety Certificate” which identifies the schedule of “Fire Safety Measures” that have been completed to satisfactory standard shall be provided to Council prior to the issue of an “Occupation Certificate” as required in Part 7B of the “Environmental Planning and Assessment Amendment Act 1997”. (C387)

11. Support for Neighbouring Buildings

(1) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

(a) must preserve and protect the building from damage, and

(b) if necessary, must underpin and support the building in an approved manner, and

(c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

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

(3) In this clause, allotment of land includes a public road and any other public place. (C380)

12. Protection of Public Places

(1) If the work involved in the erection or demolition of a building:

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

(b) building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

(2) 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.

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

(4) Any such hoarding, fence or awning is to be removed when the work has been completed. (C381)

13. Signs to be Erected on Building and Demolition Sites. (C382)

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

(3) This clause 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.

14. The hours of construction and/or work being restricted to Monday to Friday, 7am to 5pm, Saturday 7am to 1pm, no work on Sunday and Public Holidays, where the construction or work in the opinion of Council interferes with the amenity of the neighbourhood by the emission of noise, chemical or physical pollutants or otherwise. In respect of noise, the L10 level (average maximum noise levels) measured over a period of 15 minutes when the construction site is in operation must not exceed background noise level by more than 10dB(A). (C325)

15. Termite control measures being installed in accordance with AS 3660.1-1995 “Protection of Buildings from Subterranean Termites. Part 1: New Buildings.” (C263)

16. A durable notice is to be permanently fixed to the building in a prominent location, such as the meter box or the like, indicating: The method of termite protection; date of installation; life expectancy of chemical barrier (if used); and installer’s or manufacturer’s recommendations for the scope and frequency of future inspections for termite activity. (C264)

17. Compliance Certificate are required at the following stages of construction:-

a) Preliminary - immediately following the setting out of the development footprint prior to excavation and/or formation of footings or slabs with environmental protection measures and toilet facilities installed.

b) Floor Plan and Elevation - to ensure compliance with set out of each floor level.

c) Final - prior to occupation/use, the satisfactory completion of the building works with respect to:-

i) Compliance Certificates as nominated

ii) Compliance Certificates (components) as nominated (C396)

18. The fee(s) required for a Council Compliance Certificate inspection(s) is $990 and it is to be paid prior to Council issuing the Construction Certificate. NOTE: Each Compliance Certificate inspection fee is $110. Where construction certificates and compliance certificates are issued by external accredited certifiers the above fee is not required. (C397)

19. The following component certificates are required to be submitted to Council prior to occupation/use of the building, to ensure compliance with the Building Code of Australia and relevant Australia Standards:- (C399)

a) Structural Engineers certificate covering the supervision of all structural work and adequacy of the building.

b) Accredited Certifiers certificate which states the structural components of the building have a fire resistance level in accordance with the requirements of Part C the Building Code of Australia for a Type A construction /and / the approved plan.

c) Accredited certifiers certificate stating the fire walls between all Units complies with the requirements of Part C of the Building Code of Australia./ and / the approved plans.

d) Accredited Certifiers certificate stating the construction bounding the fire isolated passageway(s) stairway(s) complies with Part C of the Building Code of Australia / and / the approved plan.

e) Acoustic Engineer / Accredited certifiers certificate stating the walls between the Units complies with: the requirements of Part F5 of the building Code of Australia /and / the approved plans.

f) Electrical contractors certificate stating the smoke alarm system has been installed in accordance with AS 3786-1993 “Fire Alarms”.

g) Plumbing and Drainage contractors certificate indicating that sewer/waste water system has been installed and completed in accordance with the Sydney Water requirements.

h) Accredited waterproof installers certificate which certifies the waterproofing system has been applied in accordance with the manufactures recommendations and AS 3470-1994 ”Waterproofing of Wet Areas in Residential Buildings”.

i) Mechanical Engineers certificate which certifies the air handling system has been designed, installed and is operational in accordance with the requirements of AS 1668-1991 “The use of mechanical ventilation and air-conditioning in buildings, Part 1: Fire and smoke control” / Part 2: Mechanical ventilation for acceptance indoor-air quality”.

j) Registered pest contractors certificate which states termite control measures have been installed in accordance with AS 3660.1-1995 “Protection of Buildings from subterranean termites Part 1 New Buildings”.

k) Registered Surveyors, Identification Survey report indicating the location of the completed development on the site in relation to all boundaries.

l) Registered Surveyors identification report indicating the finished site / floor / roof / ridge levels in relation to a nominated fixed datum point / are in accordance with the levels indicating plans.

m) Glazing installation contractor certificate stating all glazing has been selected and installed in accordance with AS 1288-1994 and the appropriate terrain category classification.

20. Plant and demolition materials shall not be placed or stored within the public road reserve and adjacent reserve and shall be stored within the boundaries of the site during demolition works. Failure to comply with this condition may result in Council taking action to remove the offending items from the public reserve, and all costs incurred by Council will be deducted from any deposit moneys held in relation to the subject property.

21. Prior to the commencement of any excavation of Council’s roadway or reserve, the builder, or his contractor, shall obtain a Road Opening Permit and pay all associated restoration charges to Council. A copy of such permit shall be kept on-site during the works.

22. Failure to comply with this requirement will result in Council taking action to recover all of its costs in accordance with the provisions under Section 94 of the Roads Act 1993. (C523)

23. All demolition work shall be carried out in a safe and responsible manner, with minimal harm to the surrounding natural environment under the supervision of a licensed contractor, and within the boundaries of the private property. (C524)

24. All demolitions are to be carried out in accordance with the guidelines contained in the Australian Standard AS2601-1991 - “The Demolition of Structures”. (C525)

25. Dust control measures shall be undertaken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment. (C529)

26. A person taking down, demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Work Cover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal. The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with. (C530)

27. Silt and sediment erosion control measures shall be provided to the demolition site to prevent the siltation of all downstream properties and/or other public areas. (C531)

28. In accordance with Part 7B of the Environmental Planning and Assessment Act the owner of the building is to provide Council with an Annual Fire Safety Statement for the building (Form 15A).

29. Submission at the Construction Certificate stage of the anticipated schedule of current and proposed fire safety measures to be implemented in the building, and such fire safety schedule shall specify the minimum standard of performance for each fire safety measure. (C371)

30. To ensure the safety of occupants of the building a “Fire Safety Certificate” which identifies the schedule of “Fire Safety Measures” that have been completed to satisfactory standard shall be provided to Council prior to the issue of an “Occupation Certificate” as required in Part 7B of the “Environmental Planning and Assessment Amendment Act 1997”. (C387)

31. No signs to be displayed without a separate approval where required under Council’s Local Environmental Plan.

32. The colours, and materials of all external components of the building and hard surfaces to be generally in accordance with submitted scheme for the development.

33. The payment of the following developer contributions prior to release of Construction Certificate:

$224 Open Space Links and Cycleway ( 6901)

34. Hoardings and child proof fencing to residential properties shall be installed to prior to construction/demolition commencing, and shall remain in place for the duration of the work. No construction access is permitted other than at the approved vehicle crossing/s into Pittwater Road. All loading, unloading and storage of materials for works within the site shall take place within the hoarding enclosure. (C87)

35. The on-site stormwater detention facility to control the rate of stormwater runoff from the site to be in accordance with Warringah Council’s publication “On-Site Stormwater Detention - Technical Specification, March 1998”. (C68)

36. All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Warringah Council’s Specification for Erosion and Sediment Control and shall be submitted to the council or certifier prior to issue of the Construction Certificate. (C41)

37. Provision shall be made throughout the period of construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site. (C44)

38. Construction of footpath paving consisting of pavers in accordance with Council’s standard specifications for engineering works. (C84)

39. Hoardings shall be installed to prior to construction/demolition commencing, and shall remain in place for the duration of the work. No construction access is permitted other than at the approved vehicle crossing/s . All loading, unloading and storage of materials for works within the site shall take place within the hoarding enclosure. or alternatively in a dedicated construction zone approved by Council in St Davids Avenue for the purpose of loading and unloading materials. (C87)

40. Payment to Warringah Council of a $10,000 bond as security against damage to Council’s roads caused by the transport and disposal of materials and equipment to and from the site to Account No.009 TF037. This amount to be paid prior to the issue of the Construction Certificate and to be verified by the accredited certifier. (C108)

41. All construction and restoration work on Council’s road and footpath area are to be carried out strictly in accordance with the approved drawings and Council’s Standard Specifications. (C110)

42. The developer/applicant is to obtain a Road Opening Permit and pay all appropriate charges prior to commencement of any work on Council property.

The developer/applicant shall be responsible for all public utilities and services in the area of his work, and as such shall notify all relevant Authorities, and bear all costs associated with any repairs and/or adjustments as those Authorities may deem necessary. (C113)

43. Lighting, fencing, traffic control and advanced warning signs shall be provided for the protection of the works and for the safety and convenience of the public and others, to the satisfaction of the Principal Certifying Authority, and in accordance with Council’s Standard specifications for engineering works. Traffic movement in both directions on public roads, and vehicular access to private properties is to be maintained at all times during the currency of the works. (C117)

44. Other than with respect to the dedicated Construction Zone referred to in Condition 39 above, footpaths and roadways are to be kept free of obstruction by building materials and plant and concrete trucks, pumps and/or agitators are to be kept within the building site. No concrete or slurry being discharged onto Council’s street surfaces. (C321)

45. Provision of a hoarding to the frontage of the property. A separate application to be made to Council for this purpose. This hoarding is to be erected before any work is commenced on site. (C341)

46. The payment of $5,000 to account Reg 009 - *TF 036 prior to issue of a construction certificate as security to ensure that:

a) all silt and sediment control measures are installed and maintained;

b) there is no transmission of material, soil etc off the site and onto the public road and/or drainage systems; and

c) maintenance of all facilities in accordance with Council’s Specification for Erosion Control and Sediment Control. (C42)

47. Creation of a Positive Covenant on the title of the land requiring the proprietor of the land to maintain any water quality control and/or stormwater detention structures required by this Consent, in accordance with the standard requirements of Council. The Positive Covenant is to be prepared by the applicant using terms acceptable to, and which are available from Warringah Council. (C51)

48. Where any conditions of this Consent require dedication, consolidation, easement or covenant, the number allocated by the Land Titles Office to the documents and/or plans referred to shall be advised in writing to Warringah Council, together with a letter of intent to proceed with the Positive Covenant prior to occupation. A certified copy of the documents shall be provided to Warringah Council after final approval and registration has been effected by the Land Titles Office. (C57)

49. An application is to be made to Sydney Water in accordance with the provisions of Division 9, Section 73 of the Water Board Corporation Act 1994 and notice of requirements obtained prior to the issue of a Construction Certificate. (C58)

50. Provision of 1 vehicle crossing, 6.0 metres wide in accordance with Warringah Council Drawing No.A4-3330 to approved levels and specifications. An application for street levels is to be made prior to issue of the Construction Certificate. (C89)

51. Construction of approved kerb laybacks in accordance with the details shown on Warringah Council Plan A4-2276. (C90)

52. Prior to finalising detailed designs of the proposed development, the applicant should check all existing public service utilities adjacent to the site and ensure that where necessary appropriate arrangements are made for the relocation and/or adjustment of any services at the applicant’s expense. (C96)

53. The requirements of condition ending in code C68 shall be designed and supervised during the works by an Engineer with qualifications and expertise recognised by the Institute of Engineers Australia as being adequate for the purpose. The Engineer shall certify prior to occupation or release of Linen Plan of Subdivision that the works have been completed strictly in accordance with the approved design and to appropriate standards of workmanship. (C98)

54. With respect to condition ending in code C68, design details, computations and/or support documentation shall be submitted with the Construction Certificate and to satisfy the above conditions prior to the issue of the Construction Certificate. (C99)

55. Council’s Development Engineer is to be given 24 hours notice when the works reach the following stages

a) Subgrade level/basecourse level/footpath paving

NOTE: Any inspections carried out by Council do not imply Council approval or acceptance of the work, and do not relieve the developer/applicant from the requirement to provide an engineer’s certification as conditioned above. Council approval or acceptance of any stage of the work must be obtained in writing, and will only be issued after completion of the work to the satisfaction of Council and receipt of the required certification. (C127)

56. Submission to Council or the Private Certifier four (4) copies of drainage plans for approval prior to the release of the Construction Certificate. The drainage plans shall detail the provision of On Site Stormwater Detention in accordance with Councils " On Site Stormwater Detention Technical Specification" dated July 2000. On the completion of works a Compliance Certificate and Work as Executed plan are to be submitted to the Principal Certifying Authority prior to the issue of the Compliance Certificate.

57. Payment of the fees/charges listed below prior to issue of the Construction Certificate.

Citations

Songkal Pty Limited v Warringah Council [2001] NSWLEC 197

Most Recent Citation

Cases Citing This Decision

2

Ipoh Pty Ltd v Sydney City Council [2005] NSWLEC 514

Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539

Cases Cited

6

Statutory Material Cited

3

Songkal Pty Ltd v Warringah Council [2000] NSWLEC 215

North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20

Marshall v Council of the City of Wollongong [2000] NSWSC 137

Actions

Download as PDF Download as Word Document

CITATION:	Songkal Pty Limited v Warringah Council [2001] NSWLEC 197
PARTIES:	APPLICANT Songkal Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	10266 of 2001
CORAM:	McEwen AJ
KEY ISSUES:	Development Application :- Owners consent non planning matters not a bar to grant of development consent access - bulk and scale - deferred commencement
LEGISLATION CITED:	Conveyancing Act 1919, s 88K Environmental Planning and Assessment Act 1979, s 78A, s 79C Environmental Planning and Assessment Regulation 1994, cl 46
CASES CITED:	Buckoke v Greater London Council [1971] 1 Ch. 655; Currey v Sutherland Shire Council and Anor (1997) 92 LGERA 85; Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 400; Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113; Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, Bryson J, unreported; Marshall v Blackpool Corporation [1935] AC 16; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Parramatta City Council and Anor v Hale and Ors (1983) 47 LGRA 319; Remath Investments No 6 Pty Ltd v Botany City Council (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported); Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231; Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; Weal v Bathurst City Council and Anor (2000) 111 LGERA 181
DATES OF HEARING:	23/07/2001, 24/07/2001, 25/07/2001, 26/07/2001
DATE OF JUDGMENT:	08/24/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson RESPONDENT Mr M Tobias QC SOLICITORS Wilshire Webb