The Equator Group Pty Ltd v Baulkham Hills Shire Council - [2004] NSWLEC 441

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: The Equator Group Pty Ltd -v- Baulkham Hills Shire Council [2004] NSWLEC 441

PARTIES:
APPLICANT
The Equator Group Pty Ltd
RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S): 10584 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- demolition of 5 houses - erection of 2 blocks of 4 storey apartment above basement carpark - shadows - privacy bulk - streetscape character - traffic

LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991
Environmental Planning and Assessment Act 1979

CASES CITED: Designlink International -v- Baulkham Hills S C, Sheahan J [1999] ;
Modog Pty Ltd -v- Baulkham Hills S C , Pearlman CJ, [2000]

DATES OF HEARING: 04/08/2004

EX TEMPORE
JUDGMENT DATE : 08/04/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough
RESPONDENT
Mr P Maringowitz, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 August 2004

10584 of 2004 The Equator Group Pty Ltd –v- Baulkham Hills Shire Council
JUDGMENT

1 This is a class one appeal No. 10584 of 2004 between Baulkham Hills Shire Council and The Equator Group Pty Ltd, in regard to the refusal of the proposal to demolish 5 existing houses and at Nos 1-9 Shirley Street, Carlingford, and to erect a 4 storey apartment development containing 35 mixed 1 and 2 bedroom units in two buildings with shared basement car park of 55 spaces and a ground level visitors car park for 14 cars.

2 Prior to the hearing negotiations had occurred between the parties and changes to the proposal has given rise to consent orders in exhibit 4.

3 The matter is dealt with by a way of on site hearing of the Court. Respondents evidence was heard from:

Erin Raska of 3 A Shirley Street,
David and Margaret Kennedy of 10 Shirley Street,
Neil Menger of 22 Bray Court, North Rocks representing a Carlingford Uniting Church,
J E Gale of 12/1A Shirley Street,
Mr Robin Tse, town planner for the Baulkham Hills Shire Council and Mr P Marginowitz, solicitor of Phillips Fox.

4 The applicants evidence was heard from:

Mr A Caladine, town planner,
Mr H Sutanto, architect,
Mr J G Widjaja,
Mr K T Joe owners of the proposal and
Mr C Gough, solicitor.

5 Original reasons for refusal were :

1 The proposal element does not comply with the requirement of cl 41 of Baulkham Hills Local Environmental Plan 1991 relating to minimum site area for apartment buildings, townhouses and villas.

Baulkham Hills Local Environmental Plan 1991

6 Clause 42 sets a minimum site area of 4000 sq m and site is 3560 sq m. It is rectangular with frontage to Shirley Street of just under 100 m and depth of about 38 m. On the northern boundary and the western boundary is a large park. On the southern boundary is a town house development. And, in the park adjoining the townhouses and the southwest corner of the site is a scout’s hall. The living rooms in all the units faced either Shirley Street or the park. There was barbeque and recreational spaces on the site adjoining the park. The buildings were setback 8 m from the park on the west, 6 m on the side boundaries to the park and the townhouses, and 10 m from the street boundary.

7 On the opposite side of Shirley Street were two or three houses at the northern end of the site, and at southern end a three-storey apartment building above a semi basement car park.

8 The site sloped down from Shirley Street about 2 m to the front wall of the building and about further 3m to rear of the site and the park. Most of the large trees on the site were to be retained as they were located on site boundaries. This included a number of trees on the southern boundary adjoining the townhouses.

9 Existing on site adjacent to the townhouses was an elevated two-storey house setback 6 m from the south side boundary due to a drainage easement in that location. The proposal maintained that setback and the evidence was the original design had been modified to step back on the 3rd storey a further 1.2 m, and on the fourth storey, a further 3 m. The roof was made into a hip form instead gable to reduce shadowing on the townhouse courtyards.

10 The four townhouses effected, as seen in diagrams in exhibit B retain at least four hours sun to their courtyards at the winter solstice and of course more sun the rest of the year. The council control required four hours of sun.

11 This aspect was of concern to objectors living in the townhouses. The Court was told the changes were not enough and the building should be three storeys to reduce the shadows, and it would make the design fit better into the existing streetscape character which was, they said, two and three storey not four.

12 Dealing with the shadows first the shadow diagrams showed two of the four affected townhouses had shadow at 9 am from the proposal that was gone by 10 am, and had the rest of the day in sun.

13 A third of the four town houses has shadows from the existing house at No 1 Shirley Street between 9 and 10 am and the proposal extended that, but shadows were gone by 11 am, and it had full sun rest of the day.

14 The last of the four had no shadow from the proposal at 9 am, but after that the shadow progressed along its courtyards in much the same footprint as the existing shadows from the house at No 1. This townhouse has a large courtyard in a L shape around the units. The townhouse itself had direct sun until about midday and the courtyard had direct sun to some usable portion of its area from 9 am at 100% of its area to about 50% at midday and was in full shadow between 2 pm and 3 pm, all about the same as presently caused by existing house.

15 The Court could see no unreasonable affectation by shadows.

16 Another concern of the townhouse residents was privacy from the occupants of the proposal on its 2nd , 3rd and 4th storey. The plan showed it was mainly bedroom windows and balconies that face towards them. And, the applicant had added continuous privacy screens 1.8 m high to the southern elevation at the 2nd and 3rd levels and a wide planter box to the balcony on the 4th level to prevent looking down from that deck.

17 The residents did not seem to think this was enough, and sought to have a privacy screen on the 4th storey too and wrap it around along the west side. The applicant said it was only the courtyards to south west being the closest north facing townhouses and courtyards that might be effected. The applicant said it would accept as a condition on the south west corner to erect a 1.5 m high privacy screen on the outside of the planter box to extend 4 m from the south west corner on both south and west elevations.

18 The distance to the townhouses fronting Lloyds Ave that had windows and courtyards facing towards the proposal was about 40 m separation or about two streetwidths. The distance of the separation alone was sufficient in itself for privacy and did not warrant the extension of the privacy screen along the full south elevation. In any case the proposed planter box vegetation would create a visual screen.

19 The townhouses fronting Shirley Street face towards it, so they would not be effected by overlooking, and the closest townhouse to the subject building was too close to be seen from the 4th floor.

20 Another concern of the residents of the townhouses, and the other objectors was traffic and parking. Shirley Street had left turn only to Pennant Hills Rd at the south end. It also had a right turn into Lloyd Ave at that point. In peak hour the residents had trouble getting out of their driveways due to cars queuing to get out onto Pennant Hills Rd. Council’s traffic engineer had determined the environmental capacity of the street was 340 vehicles per hour, and in 2002 existing traffic peaked at 179 vehicles per hour. There was no service rating for the intersection to guide the Court on the residents concerns but, council engineers did not put that as a reason to refuse the proposal.

21 The traffic concerns related in part to the concern of the residents about the zoning for the area being Residential 2(A1) under the Baulkham Hills Local Environmental Plan 1991. It allowed high density residential and the residents felt it was too dense for the road infrastructure at least. Shirley Street had “No Parking” along the length of its east side because it was only wide enough for two moving lanes and one parking lane.

22 The council had not considered widening it when the new zone was created. The Court was told the high-density zoning had been done when the New South Wales State Government had committed to the new Parramatta to Chatswood rail line. The Carlingford station was only about 100 m from the site. Now the new line was not proceeding the residents felt the zone should be returned to lower density.

23 The Court was told in Shirley Street alone there were either built or under consideration by council about 600 apartments. There were about 50 houses in the whole street originally, and it had no cross streets until the T-intersection with Post Office Street at the north end, and with Pennant Hills Road and Lloyd Avenue at the south end. Resulting traffic congestion will be totally unacceptable said the residents given the existing congestion at peak hour.

24 This appeared to the Court to be a matter the residents must take up with council as the Court had to deal with this proposal under the current zoning legislation.

25 The engineering report indicated this proposal will generate 12 vehicles per hour in peak and that number would not create an impact on road congestion sufficient for refusal.

26 Council had at one stage intended to put “No Parking” signs on the west side of the Shirley Street near the Pennant Hills Road intersection, but that had been opposed by the Uniting Church that is on the corner. Already with the existing “No Parking” restriction the parishioners had no-where to park, and this caused particular distress at funeral ceremonies. The council has resiled from the extra “No Parking” areas and Mr Menger said the church withdrew its objection.

27 Town house residents were also concerned about noise from the barbeque area near the south west corner of the site. It was adjoining the park about 20 m from the townhouse side boundary. In that distance was the scout hall. The residents said they had disturbance from the functions in the scout hall and they did not want extra noise.

28 The applicant had moved play equipment to the opposite end of the site and deleted the swimming pool in answer to these concerns and felt that barbeque area was a lower noise activity that had enough separation from the townhouses to give acceptable noise levels. The Court agrees with this.

29 These were the major objections to the proposal although there were others and these were dealt with Mr Caladine in exhibit C and the council planner Mr Tse did not disagree with that evidence.

30 In regard to the non compliance with minimum site area, cl 42 of the Baulkham Hills Local Environmental Plan 1991 enabled an exception to be granted provided the responsible authority is satisfied on issues of streetscape, visual and acoustic privacy, solar access and design in landscaping and open space. In regard to those matters the councils town planning report of the 20 April 2004 in exhibit 5 said:

“In terms of streetscape cl 42 requires that proposed structures are to be compatible with the adjoining structures in terms of the elevation to the street and building height. The applicant acknowledges that the proposed development will be inconsistent in height and scale with any development that directly adjoins the site, but it will be consistent with size and scale of the development immediately across the road at Nos 2-6 Shirley Street and also with other similar developments within the visual catchment of the site.

The development will be lower in height than the building across the road because of the falling land to the west towards the open space and parkland. The top floor level of the southern building has been stepped to provide reasonable transition to the adjoining townhouse development to the south.

In terms of the visual and acoustic privacy the applicant has proposed the following amendments to ensure acceptable noise levels and visual privacy:

a) deletion of the swimming pool and relocation of the children’s play ground.

b) additional landscaping on southern roof and level 3 terraces and longer planter boxes.

c) replacement of glass balustrade with 1 m solid balustrade to all southern balconies and terraces with 800 mm privacy screen on top.

d) increase window height 1.6m to the sill and

In terms of landscaping and open space the applicant proposes to retain significant existing vegetation and new landscaping will be incorporated within the setbacks and open space areas. The proposed landscaping is considered appropriate. The applicant also amended the landscaping and open space layout to reduce impacts on the nearby residents.

Local Environmental Plan”.

31 Regard to compliance with State Environmental Planning Policy No. 65 the councils town planning report said:

“ application has been assessed having regard to design quality principles in SEPP 65 and Urban Design Guidelines adopted by council on the 4 Sept 2001. The merits of the application in terms of the Urban design and relationship to the site constraints are:

a) apartment buildings have been designed in accordance with the objectives, performance criteria and numeric guidelines of the LEP and DCP 23 which is now renamed DCP No. 6.

b) The proposed development has been designed in response to current and likely future character.

c) the proposed development is appropriate in form, scale, bulk and height with two buildings on each side of the site with 12 m separation to provide further modulation of the mass and bulk of the development.

d) the proposal satisfies council setback requirements and provides an appropriate degree of separation between the buildings within the site. Proposal also provides appropriate boundary setbacks to adjoining properties boundaries. The addition of a solid balustrade and privacy screen for apartments on the southern elevation will ensure the visual privacy of the adjoining residents.

e) The proposed development complies with maximum density requirements and has been architecturally designed to fit in with the desired future character for the locality.

f) The proposal has been designed so as to achieve a high level of ventilation within the development and a reasonable level of solar access in each building, having regard to the configuration and orientation of the subject land. The proposal provides a high level of internal amenity for future residents particularly on the ground floor and top level providing large private recreation areas in the form of balconies and terraces that are directly accessible from internal living areas. Careful consideration was also given in terms of the design of windows and balcony balustrades to ensure an acceptable level of internal and external amenity and to protect privacy of the adjoining residents.

g) The development provides landscape setbacks to the street. An appropriate bulk and scale has been achieved by the distribution of the building mass and articulation, minimising the impact of hard surfacing by the provision of basement parking which has been substantially retained within the building footprint to maximise deep soil landscape opportunities.

h) Each unit has been designed to utilise solar access, natural ventilation, visual and acoustic privacy. Development has been designed and amended to ensure adequate amenities are provided for future residents. The majority of units within the development will achieve minimum 4 star energy rating.

i) The subject site is located in well serviced locality having regard to access to public transport, educational facilities and retail and commercial services.
j) Substantial architectural articulation of the street face elevation is reflected in the design providing a development which is aesthetically acceptable and provides a satisfactory level of internal amenity. Proposal provides clear entering point to the development site”.

32 These conclusions are supported by the findings in Designlink International v Baulkham Hills S C 10112 of 1999, Sheahan J, on the planning context of the Shirley Street neighbourhood and its future character. The respondent put that in regard cl 42 the finding in Modog Pty Ltd v Baulkham Hills S C 10322 of 2000, Pearlman CJ, is applicable and the apartment building across Shirley Street from the proposal is an “adjoining structure” as is the Uniting church, and the proposal in height and street-scape appearance it similar to them making it acceptable within the street scape.

33 The building fits well below the building height envelope control in Development Control Plan No. 6, that is the means the statutes and controls use to determine bulk and height. The break up of the buildings into 2 blocks further reduces its visual impact. Overall the Court is satisfied on the relevant requirements of cl 42 and that an exception to the minimum site area requirement is justified in this case, and there being no other matter sufficient for refusal the development should be approved.

34 The orders of the Court by consent of the parties are:

1 The appeal is upheld.

2.1 The demolition of 5 existing dwelling houses and associated structures; and

2.2 The construction of 2 apartment buildings containing 35 residential units (15x1 bedroom and 20x2 bedroom units) with associated basement car parking with a total of 69 spaces.

3 The development consent is granted subject to the conditions contained in Annexure “A” hereto.

4 There is no order as to costs.

Annexure “A”
Conditions of Consent

For demolition of 5 houses and erection of an apartment development at Nos. 1-9 Shirley Street, Carlingford.

Drawing No.	By	Date
1 03/0156: Levels and Details	Watson Buchan	18/2/03
2 DA–1000 A: Site Analysis and Contextual Analysis	Moderinn Group Pty Ltd	July 2003
3 DA–1007 A: Section Through Carparking Ramps	Moderinn Group Pty Ltd	July 2003
4 DA–1009 A: Fencing Details	Moderinn Group Pty Ltd	July 2003
5 DA–1010 A: Area Calculations	Moderinn Group Pty Ltd	July 2003
6 DA–1011 C: Amended Site Plan	Moderinn Group Pty Ltd	November 2003
7 DA–1012 C: Amended Ground Floor and Level 1 Floor Plans	Moderinn Group Pty Ltd	November 2003
8 DA–1013 C: Amended Level 2 and Level 3 Floor Plans	Moderinn Group Pty Ltd	November 2003
9 DA–1014 C: Roof Plan and Basement Plan	Moderinn Group Pty Ltd	November 2003
10 DA–1015 C: Amended Elevations	Moderinn Group Pty Ltd	November 2003
11 DA–1016 C: Amended Sections	Ray Fuggle & Associates	February 2004

No works (including excavation) shall be undertaken prior to the release of the construction certificate.

For the purpose of this development consent, 'Applicant' includes the person carrying out development in reliance on the development consent.

A pre–lodgement meeting is required for medium density/class 2–9 developments if lodging the Construction Certificate Application with Council. Please contact Council's Building Control Section on 9843–0431.

The provision and maintenance thereafter of 69 off–street car parking spaces.

The responsibility for house/unit/tenancy numbering is vested solely in Council in order to provide a consistent and accurate system of street numbering throughout the Shire. In this regard you are required to contact Council's Land Information Section on 9843 0474 to confirm the street number. The street numbers as issued are to be displayed on all buildings resulting from this approval.

Council's Tree Preservation Order requires the preservation of all trees and prohibits the ringbarking, cutting down, topping, lopping or wilful destruction of trees except with the prior approval of Council.

Care is to be exercised during the construction of the proposed works to ensure natural vegetation and topography on the subject site is not unnecessarily disturbed.

External finishes and colours shall be in accordance with the details submitted with the development application and approved with this consent.

Waste Management Plan

Erosion and Sedimentation Control Plan

Traffic Control Plan

Suitable replacement trees are to be planted upon completion of construction.

The number of letterboxes to be provided is to be equal to the number of flats/units/townhouses/villas etc, plus one (1). Individual letter boxes to have a minimum internal dimension of 230mm wide x 160mm high x 330mm long, and to be provided with an opening 230mm x 30mm for the reception of mail.

The creation of an easement to drain water and overland flow, 3.9m wide and variable, over the appropriate part of the development lot in favour of Council and the extinguishment of the existing easement that was created on Lot 18 DP 24777. A request document is to be submitted to Council for endorsement to extinguish the existing easement on completion and final inspection of the drainage works associated with the new easement.

In this regard a construction programme and anticipated duration of construction for all work in the road reserve shall be submitted in writing to Council prior to the commencement of any works in the road reserve.

(a) A completed application form
(b) Four (4) copies of the design plans and specifications. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD).
(c) Payment of the appropriate Construction Certificate fee
(d) Payment of the appropriate Inspection of Works fee
(e) Payment or lodgement of any required security bonds
(f) Payment of a Long Service Levy (if appropriate)
Please Note: All construction works within the road reserve or any other land under Council's control are to be carried out under the provisions of the Roads Act (1993) and as such, may only be certified, approved and inspected by Council. In this regard, a separate application for ECC is required to be made with Council.

The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council's Schedule of Fees and Charges.

(a) Council's 'Design Guidelines – Subdivisions/Developments' (June 1997).
(b) Council's 'Works Specifications – Subdivisions/Developments' (November 2001).

Such works shall include:

i. Concrete Footpath – 1.5m wide – Shirley Street.

Concrete footpath paving 1.5 metres wide across the Shirley Street frontage of the development.

The construction of any retaining walls necessary to ensure complying grades within the footpath verge area. Any such retaining walls and associated footings shall be contained wholly within the private property.

The removal of disused layback and footpath crossings and the replacement with full kerb and gutter together with the restoration and turfing of the adjoining footpath verge area.

Heavy duty gutter and footpath crossing at all points of vehicular access to the site.

(a) Australian/New Zealand Standard AS/NZS 2890.1:2004 – 'Parking facilities – Part 1: Off–street car parking'
(b) Australian Standard AS 2890.2–2002 : 'Parking facilities – Part 2: Off–street commercial vehicle facilities'
(c) Council's Development Control Plan No. 12 – 'Car Parking'

All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled.

All access roads and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall.

No parking shall be permitted along the Shirley Street frontage of the proposed development. The applicant shall bear the cost of any associated works relating to this arrangement.

All contractors working in the public road shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be submitted to Council prior to the commencement of construction in the road reserve.

Adequate protection must be provided for public infrastructure prior to work commencing and during building operations.

e caused during construction shall be made good prior to the issue of an occupation or subdivision certificate.

No works undertaken on the site shall divert overland flow out of the drainage easement which are in favour of Council.

Buildings and structures (including brick fences) adjacent to easements shall be designed by a qualified practising Structural Engineer to ensure that no load is imparted on the pipe in the easement.

A formal subdivision application is to be submitted to Council in respect of any proposal to community or strata title to subdivide the approved development.

Australian Standard AS 2601–1991: The Demolition of Structures.

Section 27A of the Occupational Health and Safety Act 1983 a

The building shall be a minimum Type A construction in accordance with the Building Code of Australia, as applicable to a Class 2 and 7a building.

Dust suppression techniques are to be employed during works to reduce any potential nuisances to surrounding residences.

The use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to 'offensive noise' as defined under the provision of the Protection of the Environment Operation Act 1997. The sound level output shall not exceed 5 dB(A) above the ambient background level at the received boundary.

Any rock–breaking required onsite as part of the excavation and construction processes is to be restricted to between the hours of 9.00am to 1.00pm, Monday to Friday. Details of any rock–breaking activities, including equipment used, noise mitigation measures provided and likely duration of this activity, are to be provided to Council seven (7) days prior to the commencement of this activity.

(a) the Building Code of Australia
(b) AS 1668 Part 1 and 2 – 1991
(c) Protection of the Environment Operations Act, 1997

A certificate shall be submitted from a practicing mechanical engineer certifying that the design and operation of the mechanical ventilation system meets the requirements of AS 1668 Parts 1 and 2.

A designated car wash area shall be provided. All waste water from such an area is to be disposed of to Sydney Water sewerage system. The developer shall contact the Trade Waste Office of Sydney Water so as to ensure that the sewerage pre–treatment system installed is appropriate for the proposed use of the car wash area. Appropriate signage must be erected and maintained at all times by the Body Corporate.

The proposed refuse chutes and access hoppers shall be enclosed in fire–rated construction in accordance with Part C of the Building Code of Australia.

All common recreational areas around the development are to be accessible by persons with disabilities. In this regard, all grades and paving materials shall allow for safe access in accordance with AS 1428.1.

The Waste Management Plan submitted to and approved by Council must be adhered to at all stages in the demolition/construction/design of facilities and ongoing use phases. All waste material nominated for recycling must be reused or recycled. Dockets/Receipts verifying recycling/disposal must be kept and presented to Council if required.

(a) masonry products (bricks, concrete/ concrete roof tiles) to be sent for crushing/recycling;
(b) timber waste to be separated and sent for recycling;
(c) metals to be separated and sent for recycling;
(d) clean waste plasterboard to be returned to the supplier for recycling (excluding plasterboard from demolition); and
(e) mixed waste (plastic wrapping, cardboard etc) to be sent to landfill.

This can be achieved by constructing a minimum of five trade waste compounds on–site.

Each waste compound must be adequately sized to enclose the waste (min 1.5m x 2m). Trade waste compounds shall be constructed with sediment fencing, shade cloth, wood or metal sheets firmly staked into the ground (trade waste bins are also suitable). The location and size of the waste storage areas must also be shown on the site plan. Waste must be adequately secured and contained within designated waste areas and must not leave the site onto neighbouring public or private properties. Personal waste must not litter the site. Dockets/Receipts verifying recycling/disposal must be kept and presented to Council when required.

Protection of the Environment Operations Act 1997

36.1 residents to deposit garbage and recycling in a cupboard or chute in the lobby on each floor;
36.2 space for all garbage and recycling bins to be placed on the kerb for servicing on collection day (these spaces are to be indicated on the plan);
36.3 storage of bins in an enclosed room that is:
36.3.1 able to store and manoeuvre a minimum of 18 x 240 litre garbage bins (9 per building) and 12 x 240 litre recycling bins (6 per building);
36.3.2 incorporated into the architectural design of the development;
36.3.3 screened and not visible from the street;
36.3.4 naturally or mechanically ventilated;
36.3.5 fitted with fire sprinklers and meets fire safety standards in accordance with the Building Code of Australia.
36.4 flat or ramped paved pathway, grade not to exceed 7% and distance not to exceed:
36.4.1 75m to allow manoeuvring of the bins from the storage room to the kerb for servicing (and not over steps, landscape edging or gutters or through the foyer); and
36.4.2 15m to allow manoeuvring of the 660L bulk garbage bins from the storage room to the roadside for servicing, including provision of gutter crossing (and not over steps, landscape edging or through the foyer);
36.5 the Council's waste contractor to access the bulk garbage bins.

All the required 240 litre bins are to be ordered three (3) days prior to occupancy by the property owner or agent acting for the owner by calling Council's Domestic Waste Line on 1300 134 897.

Carpark mechanical ventilation systems shall be designed and installed in accordance with AS 1668.1 and .2. The location of the carpark exhaust shall not cause any nuisance to the openable windows/fresh air intakes within the development or in adjoining properties.

Prior to any demolition works commencing on the site, the applicant is to notify all adjoining and adjacent neighbours and Council, five (5) working days prior to work commencing.

All new and existing essential fire safety measures shall be maintained in working condition at all times.

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

The applicant is advised that the above contribution amount consists of $2,135.42 for each of the two (2) bedroom units; and $1,542.27 for each of the one (1) bedroom units; less $4,152.17for each of the five (5) existing allotments. Payments comprise of the following:–

15 x 1 Br Unit	20 x 2 Br. Unit	Sum of Units	Credits	Total
Roads and Traffic	$55.65	$102.60	$158.25	$49.85	$108.40
Open Space – Land	20,502.00	37,850.00	58,352.00	18,399.25	39,952.75
Open Space – Embellishment	1,339.20	2,472.00	3,811.20	1,201.65	2,609.55
Community Facilities – Land	95.40	176.00	271.40	85.55	185.85
Community Facilities – Embellishment	1,141.805	2,107.80	3,249.60	1,024.55	2,225.05
Studies & Administration	–	–	–	–
TOTAL	23,134.05	42,708.40	65,842.45	20,760.85	45,081.60

The figures mentioned above are based on the current rates and applicants should be aware that the contribution will be based on the rates at the time of payment which will not necessarily be those mentioned above.

This condition has been imposed in accordance with Contributions Plan No 7.

A copy of this plan may be inspected at the Customer Service Centre, of Council's Administration Complex, corner of Carrington and Showground Roads, Castle Hill between the hours of 8.30 am and 4.30 pm weekdays.

Prior to payment of the above Section 94 contribution, the applicant is advised to contact the Section 94 Officer on 9843 0268, for the current section 94 rates. Please note, Section 94 rates are updated quarterly.

(a) All existing trees, landscape features and prominent structures;
(b) A schedule of proposed planting, including botanic name, common name, expected mature height and staking requirements;
(c) Details indicating a minimum of 300mm of good quality topsoil to all garden beds;
(d) Details indicating a minimum of 150mm of good quality topsoil to all park areas
(e) All garden bed areas to be clearly defined by brick, concrete or timber edging with its top edge finishing flush with the surface of adjacent grass areas.

The submission of documentary evidence to the Principal Certifying Authority, including a Notice of Requirements, from Sydney Water Corporation confirming that satisfactory arrangements have been made for the provision of water and sewerage facilities.

The bond can be re–determined due to changes in circumstances, by Council's Tree Management Co–ordinator.

Tree No. 2	Eucalyptus sideroxylon 'Rosea' (Pink Flowering Ironbark)	$ 3,100.00
Tree No. 3	Chamaecyparis obtusa 'Crippsii' (Hinoki False Cypress)	$ 2,800.00
Tree No. 4	Ulnus glabra 'Lutescens' (Wych Elm)	$ 2,600.00
Tree No. 5	Leptospermum petersonii (Lemon Scented Tea Tree)	$ 2,000.00
Tree No. 8	Corymbia citriodora (Lemon Scented Gum)	$ 3,600.00
Tree No. 9	Corymbia citriodora (Lemon Scented Gum)	$ 3,600.00
Tree No. 14	Lagerstroemia indica (Crepe Myrtle)	$ 2,000.00
Tree No. 15	Lagerstroemia indica (Crepe Myrtle)	$ 2,000.00
Tree No. 16	Populus deltoids (Cottonwood)	$ 3,600.00
Tree No. 18	Liquidambar styraciflua (Sweet Gum)	$ 3,100.00
Tree No. 26	Grevillea robusta (Silky Oak)	$ 3,100.00
Tree No. 31	Pinus patula (Mexican Pine)	$ 2,300.00
Tree No. 32	Eucalyptus scoparia (Wallangarra White Gum)	$ 3,600.00
Tree No. 33	Eucalyptus scoparia (Wallangarra White Gum)	$ 2,600.00
TOTAL	$40,000.00

Stockpiling of materials within the root protection zone,
Placement of fill within the root protection zone,
Parking of vehicles within the root protection zone
Compaction of the soil within the root protection zone
The installation of services within the root protection zone is not to be undertaken unless where necessary and where roots are damaged, a qualified arborist is to repair any roots, which are damaged,
A sign is to be erected indicating the trees are protected.

A Landscape Bond to the value of $20,000.00 is to be lodged with Council prior to the issue of the construction certificate. It shall be refunded 6 months following final inspection and the submission to Council of certification from a qualified Landscape Architect or an accredited certifier that the works have been carried out in accordance with the approved landscape plan.

Submission of an Energy Rating NatHERS certificate prepared by an Accredited Assessor indicating that each dwelling achieved a Four (4) Star Rating in respect to energy efficiency.

Prior to the release of the Construction Certificate design verification is required from a qualified designer to confirm that the design of the development as proposed for the purposes of the Construction Certificate is in accordance with the approved plans and details and satisfies the design quality principles in SEPP65.

(a) Council's 'Design Guidelines – Subdivisions/Developments' (June 1997).
(b) Council's 'Works Specifications – Subdivisions/Developments' (November 2001).

Such works require an Engineering Construction Certificate to be obtained and are to include:–

i) OSD Upper Parramatta River Catchment

Onsite stormwater detention is to be provided in accordance with Council's adopted policy for the Upper Parramatta River Catchment and Council's 'Design Guidelines – Subdivisions/Developments' (June 1997).

New kerb inlet fronting the site.
Upgrading the existing pipe.
Pipe realignment through the site.

Submission to Council of suitable documentary evidence that indicates the creation of an easement to drain water and overland flow, 3m wide and variable, over the appropriate part of the development lot in favour of Council has been registered with Land and Property Information New South Wales (LPI).

Submission to Council of an application for the extinguishment of the existing 1.8m wide easement to drain water in respect of Lot 18 DP 24777.

(a) A holding tank capable of storing the run–off from a 100 year ARI – 12 hour duration storm event allowing for pump failure.
(b) Two pump system (on alternate basis) capable of emptying the holding tank at a rate equal to the lower of:

ii. The rate of inflow for the one hour, 5 year ARI storm event

Plans and calculations are to be submitted along with certification from the designer to indicate that the design complies with the above requirements.

Prior to the issue of an Engineering Construction Certificate for works external to the site, Council's inspection fees are to be paid in accordance with Council's current schedule of fees.

The value of this bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being restored to the satisfaction of Council's Engineer. Should the restoration cost exceed the value of the bond, Council will undertake the works and issue an invoice for the recovery of these costs.

The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council's Engineer.

Note:– A maintenance bond to the value of 5% of the value of all external works with a minimum of $5,000 shall be retained for a 12 month defect liability period. The release of the maintenance bond shall be subject to a satisfactory final performance inspection 12 months after certified completion of the works.

(a) Restriction – O.S.D. Modification

A Restriction–As–To–User restricting development over and/or the varying of the finished levels of the on–site detention structures and associated components.

A Positive Covenant to ensure the on–going maintenance of the on–site detention structure.

(c) A Positive Covenant to ensure that on–going maintenance of the stormwater pump out system is carried out at 6 monthly intervals. This shall clearly state that the maintenance of the system shall incur no cost to Council.

Note:

(a) Have no expiry date.
(b) Be forwarded direct from the issuing bank to Council under cover of a suitable letter that refers to the consent and details Council's Development Application Number 379/04/HB.
(c) Should it become necessary for Council to uplift the Bank guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken.

(a) RTA Specification – October 1998 – 'Traffic Control at Work Sites Manual'
(b) Australian Standard 1742.3 – 1996 – 'Manual of Uniform Traffic Control Devices' & accompanying Field Handbooks (SAA HB81)
(c) Baulkham Hills Shire Council – 'Traffic Control at Work Site'

Written and/or sketched details shall be certified by the designer as conforming to the above specifications and shall be submitted with the engineering plans prior to the issue of a construction certificate.

Should the engineering plans provide for any works to be carried out, or necessitate easements, over adjoining land, the issue of a Construction Certificate will be withheld until such time as a copy of the plan has been suitably endorsed by the adjoining owner(s) and submitted to Council.

The Applicant must not obtain from the Principal Certifying Authority any variations to the Development consent and the approved plans. If variations are required, a section 96 modification shall be lodged and approved by council prior to the issue of the Construction Certificate or prior to the implementation of the variations during construction.

Building Code of Australia

(a) Complying with the deemed to satisfy provisions, or
(b) Formulating an alternative solution which;

ii) Is shown to be at least equivalent to the deemed to satisfy provision,

As the total number of car spaces in the undercover carpark exceeds 40 (on all floors interconnected by vehicular ramps), a sprinkler system is to be provided to the carpark in accordance with Performance Requirements EP 1.4 of the Building Code of Australia.

(a) the type of waste materials;
(b) the estimated volume (m3) or area (m2) of waste materials;
(c) the proposed reuse or recycling methods, contractor information, recycling outlet and land fill site;
(d) design of bin storage facilities for final use by occupants.

Reuse and recycling of waste materials must be maximised. The location and size of the waste storage areas must be shown on the site plan. Dockets/Receipts verifying recycling/disposal must be kept and presented to the Certifying Authority when required.

Prior to the release of the construction certificate, a practising qualified geotechnical engineer shall certify, based on the approved plans and core sampling, that excavation can be undertaken without excessive slippage or excessive soil movement occurring. Any required stabilisation measures shall be contained wholly within the development site.

PRIOR TO WORK COMMENCING ON–SITE

The excavation of the site shall be monitored by a practising qualified geotechnical engineer, to verify that any required stabilisation measures are undertaken.

The preservation of trees in accordance with Council's Tree Preservation Order which prohibits the ringbarking, cutting down, topping, lopping or wilful destruction of trees except with the prior approval of Council. All trees to be retained are to be protected by paraweb fencing, firmly staked three (3) metres from the trunk of the tree. This fencing is to be erected prior to the commencement of any site works and is to be maintained in position for the duration of the works. The area within the dripline of the tree should not be used for the stockpiling of new or demolition material, nor for vehicular or pedestrian convenience or uses that would compact the soil in this area.

(a) Designated access and delivery routes.
(b) Photographic evidence of the pre construction condition of all public assets along all road frontages of the site and the designated access and delivery routes. The report shall clearly indicate the date of recording.

The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours contact name and telephone number. In the case of a privately certified development, the name and contact number of the Principal Certifying Authority.

An approved temporary closet connected to the sewers of Sydney Water, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.

A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Soil Conservation Services and the Department of Conservation and Land Management.

Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the details approved by Council and the requirements of the Soil Conservation Services and Department of Conservation and Land Management. Additional erosion and sedimentation controls may be required on site as directed by Council's appropriate officer.

Duplicate copies of Structural Engineer's details of footings, concrete beams, slabs and stairs, retaining walls, structural steelwork, roof timbers and roof construction to be submitted to the Principal Certifying Authority prior to work commencing. The details shall also include certification of the required FRLs of the structural members in accordance with the Building Code of Australia.

(a) the type of waste materials;
(b) the estimated volume (m3) or area (m2) of waste materials; and
(c) the proposed reuse or recycling methods, contractor information, recycling outlet and land fill site.

Reuse and recycling of waste materials must be maximised. The location and size of the waste storage areas must be shown on the site plan. Dockets/Receipts verifying recycling/disposal must be kept and presented to the Certifying Authority when required.

Prior to any demolition works, Council must be notified to collect any garbage or recycling bins from any dwelling/building that is to be demolished and to discontinue the service (where the site ceases to be occupied during works). Council's domestic garbage and recycling service is not for the use of construction or demolition workers.

DURING CONSTRUCTION

The walls between sole occupancy units shall extend from the footings to the underside of the roofing material, and have a minimum fire resistance level of 60/60/60. Roof battens up to 75mm x 50mm may cross the separating wall subject to the gaps being fire stopped. At the intersection of the separating wall and an external brick veneer wall, the gap shall not exceed 50mm, and shall be fire stopped and flashed.

Noise transmission to be controlled between sole occupancy units in accordance with Part F5 of the Building Code of Australia.

The Principal Certifying Authority shall ascertain the location of existing street hydrants and determine whether they are suitable for fire fighting purposes under AS 2419.1 in terms of their physical coverage and hydraulic adequacy for the development. If the physical coverage and/or hydraulic adequacy are unsatisfactory, an on–site fire hydrant system shall be installed in accordance with AS 2419.1.

All work shall be completed in accordance with the development consent, Council's Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All works and public utility relocation shall incur no cost to Council.

During construction works, regular wetting down on the site is to be undertaken in order to control wind blown dust from the site.

(a) Completion of installation of erosion and sediment control structures.
(b) Prior to backfilling pipelines, subsoil drains and dams.
(c) Completion of backfilling pipelines, subsoil drains and dams.
(d) Prior to casting pits and other concrete structures, including kerb and gutter, roads, accessways, aprons, pathways/footways/cycleways, vehicle crossings and dish crossings.
(e) Completion of subgrade and sub–base.
(f) Completion of basecourse pavement and prior to application of protective seal.
(g) Prior to backfilling public utility crossings in road reserves.
(h) Prior to placement of asphaltic concrete or wearing surface.
(i) Final inspection after all works are completed and 'Works as Executed' plans have been submitted to Council.
(j) Concrete core test results and pavement density tests results.

Monday to Saturday – 7.00am to 5.00pm;
No work to be carried out on Sunday or Public Holidays.

The builder/contractor shall be responsible to instruct and control sub–contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.

(a) At the commencement of the building work;
(b) Pier holes prior to the placing of concrete;
(c) Steel reinforcement in position for footings or slabs or any in–situ reinforced concrete building element prior to the pouring of concrete;
(d) Prior to the covering of framework for any floor, wall, roof or other building element;
(e) Prior to the covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within Class 2, 3 or 4 buildings:
(f) Prior to the covering any stormwater drainage connections or drainage lines and disposal trenches;
(g) After the building work has been completed and prior to any occupation certificate being issued in relation to the building.

You are advised that Council provides the service of carrying out the above inspections at the rate of $66.00 each (GST Inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST Inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority, within a minimum of 2 days prior to commencement of work.

It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work.

NOTE: No building shall be occupied or used prior to a satisfactory final inspection being carried out.

Safety Glazing to be selected and installed in accordance with AS 1288. A certificate shall be submitted to the Principal Certifying Authority at the completion of the building works.

Required balustrades shall comply with Part 3.9.2 of the Building Code of Australia (Housing Provisions).

The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council's Landscaping Development Control Plan.

Following an application a 'Notice of Requirements' will detail water and sewer extensions to be built and charges to be paid.

Please make early contact with the Coordinator, since building of water / sewer extensions can be time consuming and may impact on other services and building, driveway and landscape design.

Submission of a compliance certificate confirming satisfactory arrangements have been made for the provision of Integral Energy services.

The submission of a compliance certificate from the telecommunications provider, authorised under the Telecommunications Act confirming arrangements have been made for the provision of telephone services.

Prior to the release of the Occupation Certificate design verification is required form a qualified designer to confirm that the development has been constructed in accordance with approved plans and details and has satisfied the design quality principles consistent with that approval.

Prior to the issue of an Occupation or Subdivision Certificate, you are required to submit to Council an updated Public Infrastructure Inventory Report identifying any damage to public infrastructure and means of rectification for the approval of Council.

The consolidation of all allotments in the development into one (1) title, registered with Land Property Information NSW prior to the issue of an occupation certificate. A copy of the registered plan shall be lodged with Council as evidence of consolidation.

The submission to Council for endorsement of a Request Document and Plan (if applicable), together with payment of the relevant fee as prescribed in Council's schedule of fees and charges for the creation of a Positive Covenant and/or Restriction–As–to–User in accordance with Section 88E of the Conveyancing Act, 1919.

Please Note

(a) Restriction – O.S.D. Modification

A Restriction–As–To–User restricting development over and/or the varying of the finished levels of the on–site detention structures and associated components.

A Positive Covenant to ensure the on–going maintenance of the on–site detention structure.

A Positive Covenant to ensure that on–going maintenance of the stormwater pump out system is carried out at 6 monthly intervals. This shall clearly state that the maintenance of the system shall incur no cost to Council.

(a) The submission of works as executed drawings prior to a final inspection. The drawings are to be prepared by a suitably qualified engineer or registered surveyor.
(b) The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified practising structural engineer or registered surveyor and is to include details of any non–compliance with approved plans and specifications.
(c) The submission of a certificate of structural adequacy from a structural engineer for he on–site stormwater detention system structures.
Note: Where the Principal Certifying Authority (PCA) is not Council, a copy of all of the above is required to be lodged with Council.

The construction of the stormwater pump–out system shall be certified by a suitably qualified Civil/Hydraulic Engineer. The certification shall state that the construction has been carried out in accordance with the approved design and construction certificate.

In respect to on–going maintenance of the pump–out system, evidence that a maintenance contract has been let shall be submitted to Council. Furthermore, evidence shall be submitted on an annual basis after that to ensure that a contract is in force and that maintenance of the pump–out system shall be carried out at minimum 6 monthly intervals.

The submission of an electronic copy of the Works as Executed plans in DWG format (Please consult Council for alternate format options). The electronic copy shall be lodged together with one (1) hard copy in accordance with the requirements of Council's 'Design Guidelines – Subdivisions/Developments' (November 2001) including pavement density results, pavement certification, concrete core test results and site fill results where applicable.

Submission to Council of suitable documentary evidence that indicates the extinguishment of the existing 1.8m wide easement to drain water that was created on Lot 18 DP 24777 has been registered with Land and Property Information New South Wales (LPI).

Provide appropriate warning signs at strategic locations at the garden to direct people to the streets once they escape from any of the fire stairs.

A final Fire Safety Certificate is to be provided prior to the issue of a final Occupation Certificate to use or change the use of the building, except in the case of a Class 1a or Class 10 building(s).

Certificate from a practising Structural Engineer to be submitted to the Principal Certifying Authority on completion, certifying that the work has been carried out in accordance with the structural details approved by Council and is structurally stable.

All required fire exits or paths of travel to an exit shall not be fitted with security screens and/or locking devices that will impede safe egress of the building occupants and visitors without prior consent from Council. This condition does not apply to the entry door of the sole occupancy residential units.

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Citations

The Equator Group Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 441

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CITATION:	The Equator Group Pty Ltd -v- Baulkham Hills Shire Council [2004] NSWLEC 441
PARTIES:	APPLICANT The Equator Group Pty Ltd RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10584 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- demolition of 5 houses - erection of 2 blocks of 4 storey apartment above basement carpark - shadows - privacy bulk - streetscape character - traffic
LEGISLATION CITED:	Baulkham Hills Local Environmental Plan 1991 Environmental Planning and Assessment Act 1979
CASES CITED:	Designlink International -v- Baulkham Hills S C, Sheahan J [1999] ; Modog Pty Ltd -v- Baulkham Hills S C , Pearlman CJ, [2000]
DATES OF HEARING:	04/08/2004
EX TEMPORE JUDGMENT DATE :	08/04/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITORS Storey and Gough RESPONDENT Mr P Maringowitz, solicitor SOLICITORS Phillips Fox