Wardan Developments Pty Limited v Blacktown City Council - [2003] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION: Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228

PARTIES: Wardan Developments Pty Limited
Blacktown City Council

FILE NUMBER(S): 10208 of 2003

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Solar Access
Common open space

LEGISLATION CITED: State Environmental Planning Policy No 65 - Design Quality, (SEPP65)
Blacktown Local Environmental Plan 1988, (BLEP)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Coffs Harbour Environment Centre v Coffs Harbour 1991 74 LGRA 185

DATES OF HEARING: 13, 14 and 15 August 2003 and mention 3 October 2003

DATE OF JUDGMENT:
10/08/2003

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Maston, barrister, instructed by
Mr P Tohme, solicitor
SOLICITORS
Greenaway & Tohme
RESPONDENT
Mr C T Drury, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

Matter No. 10208 of 2003

Coram: Watts C
Decision date: 8 October 2003

WARDAN DEVELOPMENTS PTY LIMITED

Applicant

BLACKTOWN CITY COUNCIL

Respondent

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Blacktown City Council (the council) of a development application to erect a four-storey residential flat building comprising thirty-four (34) dwellings with basement car parking and rooftop recreation areas at Lots 2001-2007 DP 1040624, being Nos 36-40 Clonmore Street and Nos 16-22 Kilmore Street, Kellyville Ridge.

2 I visited the site in company with the parties on the morning of the second day of the proceedings.

3 I have concluded that the application should succeed as the provision of common open space and solar access would be satisfactory. Taking into account these and other factors the application would not warrant refusal.

The land

4 The land is situated on the northern side of Kilbenny Street and has frontage to Clonmore, Kilbenny and Kilmore Streets at Kellyville Ridge to the north of Blacktown Town Centre on Old Windsor Road. It has a frontage to Kilmore Street of 52.916m (including the corner splay) to Clonmore Street of 65.65m (including the corner splay) giving an area of some 3437.5m2. There is a slight slope down to the southeastern corner.

5 The subject land, forms part of the Residential 2(c) zoned land, which lies between Clonmore Street and Windsor Road. Multi-unit developments are currently under construction on land nearby to the east of the land in the 2(c) zone. A further area of land zoned 3(b) special business is located south of the 2(c) land, near the entrance to the Kellyville Ridge estate. Within this latter zone is located a service station and a McDonalds restaurant.

6 The scale and style of residential development nearby to the west, comprises single-storey and two-storey detached housing and the subdivision pattern in that area, is a conventional layout with lots of around 450m2.

Relevant planning controls

State Environmental Planning Policy No 65 – Design quality, (SEPP65)

7 SEPP65 applies to the land. Under cl 32 the recent amendments made to SEPP65 do not apply to a development application made but not finally determined before the commencement of those amendments in Amendment No 1 [Note: Exhibit 16 p 13]. Thus the Better Urban Living Guidelines applies under cl 30 of Amendment No 1 rather than the Residential Flat Design Code.

Blacktown Local Environmental Plan 1988, (BLEP)

8 The BLEP applies to the land and the proposal is permissible with consent in the Residential 2(c) zone.

9 Clause 9(3) of the BLEP states:

Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

10 Relevant aims and objectives of the BLEP include [Note: Exhibit 2 p 18] :

Aim (a): to repeal all local planning controls applying to Blacktown and replace them with a single local environmental plan;

Aim (b): to simplify and modernise the development controls applying to Blacktown;

Aim (c): to speed up the planning process in Blacktown by placing in the council’s hands broader responsibility for environmental planning of local significance; and

Aim (d): to maintain the opportunity for public involvement and participation in environmental planning and assessment by using development control plans to supplement the broad controls in the plan.

Objective (b): to allow for a variety of residential lifestyles.

11 The objectives of the 2(c) zone under the BLEP are:

1(a) – to make general provision to set aside land to be used for the purposes of housing and associated activities;

1(b) - to identify areas suitable for residential flat buildings in locations close to the main activity centres of the City of Blacktown; and

1(c) - to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi detached housing and the like, as an alternative form of development to residential flat buildings.
1(d) - to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; and
1(e) - to allow within the zone a range of non-residential uses which: (i) are capable of visual integration with the surrounding environment; (ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone; and (iii) do not place demands on public services beyond the level reasonably required for residential use.

12 The proposal need only be consistent with or “not antipathetic to” [Note: Coffs Harbour Environment Centre v Coffs Harbour 1991 74 LGRA 185 at 191-3 CoA decision] , one or more of these objectives.
Blacktown Development Control Plan 1992 Part C – Development in the Residential Zones, (DCP1992)

13 DCP1992 applies to the land and provides more detailed provisions than those contained in the BLEP and in particular requirements for solar access [Note: Exhibit 4 DCP1992 cl 7.9 p c43] and common open space [Note: Exhibit 4 DCP1992 cl 7.11 pp c43-4] are specified.

The proposal and its history

14 Development application No 02/4805 was lodged with the respondent council on 22 October 2002 to erect a four-storey residential flat building comprising thirty-four (34) dwellings with basement car parking and rooftop recreation areas on the land [Note: Exhibit 6 Development application “construct 34 residential home units”].

15 Thirty-one (31) of the dwellings would have two bedrooms and the remaining three-townhouse-style apartments at ground level would have three bedrooms with private north-facing courtyards. Each two-bedroom dwelling would be provided with balconies or terraces. Common open space would be provided in turfed ground level areas and at rooftop level. Perimeter planing boxes are proposed to the terraced areas of the third floor. Lift access is proposed to the rooftop level.

16 The proposal is of a ‘double-loaded’ north / south corridor design, with east / west party walls at a residential density of around 1:1 [Note: Sheet 2840 DA01D in Exhibit A as amended by DA01D2 in Exhibit K statistics].

17 Vehicular access to the basement car park would be off Kilmore Street via a ramp that would conform to AS 2890.1 [Note: Exhibit K Architectural drawings].

Notification

18 The application was notified to nearby owners and occupants and the council received seventy, (70) individual letters of objection and a petition with 149 signatures. Concerns related to:

The height bulk and scale of the proposal and being out of character with the predominantly one and two storey houses adjacent;

Traffic generation and car parking demand;

Overlooking the surrounding detached housing area and significantly impacting on residents’ privacy with 58 windows and more than 20 balconies facing adjacent residences;

Inadequate facilities and services; and

Occupants more likely to be tenants who tend to take less pride in their properties than homeowners.

The council’s decision
19 By notice dated 28 April 2003, the council refused the application for the following reasons:

The proposal is unsuitable for the site in terms of height, bulk and scale, given its location immediately adjacent to detached 1 and 2 storey houses in Clonmore and Kilmore Streets.

The proposal is unsatisfactory under design quality principles 1, 2, 3, and 4, of State Environmental Planning Policy No 65.

The proposal fails to comply with Section 7.11 of Blacktown Development Control Plan 1992 Part C (Common open space) and Section 3.4 of Blacktown Development Control Plan 1992 Part A (Tree preservation). Further it has not taken into consideration the provisions of the Threatened Species Conservation Act 1995.

The cumulative impact of similar residential flat buildings in this location will have an adverse impact on the amenity of existing residents in Clonmore and Kilmore Streets, due to the additional vehicular trips generated in these streets.

The narrow width of the street in the estate will result in traffic congestion, as 2 vehicles will not be able to pass each other when vehicles are parked on both sides of the carriageway.

There were substantial objections from owners and occupiers of detached houses adjacent to the subject site and in the surrounding area mainly on the grounds of excessive bulk and scale and adverse traffic and parking impacts, which are considered valid.

The proposal is not considered to be in the public interest.

The hearing

20 The appeal was filed on 26 February 2003 before the council formally refused the application thus it is a ‘deemed refusal’.
21 At the hearing the court heard evidence on behalf of the respondent council from:

Mr A Goodin, resident of No 29 Clonmore Street, Kellyville Ridge;

Mr J Gerdtz, resident of No 25 Tullaroan Street, Kellyville Ridge;

Mr G R Apps, Senior Statutory Planner Blacktown City Council;

Mr R J C Jensen, consultant town planner;

Mr P S Ibbotson, resident of No 61 Tullaroan Street, Kellyville Ridge;

Mr Z Popovic, resident of No 63 Tallaroan Street, Kellyville Ridge; and

Mr J Pratt, resident of No 49 Clonmore Street, Kellyville Ridge.

22 On behalf of the applicant evidence was given by:

Professor J Toon, town planner and architect;

Mr R Wardan, applicant.

The issues

23 On 24 July 2003, the council filed a further amended statement of issues [Note: Exhibit 1]:

1 Whether the proposed development should be approved having regard to non-compliance with provisions of the Respondent's Development Control Plan 1992 .

Particulars:
The Respondent alleges that the proposed development does not comply with the following clauses of Part C of Development Control Plan 1992 :
Clause 7.9 - solar access
Clause 7.11- common open space

2 Whether the proposed development should be approved having regard to non-compliance with provisions of State Environmental Planning Policy No. 65 .

Particulars:
The Respondent alleges that the proposed development does not comply with the following clauses of State Environmental Planning Policy No. 65 :

Clause 9 – context;
Clause 10 - bulk and scale;
Clause 11 - built form;
Clause 12 – density;
Clause 14 – landscape;
Clause 15 – amenity; and
Clause 18 - aesthetics .

3 Whether the approval of the proposed development would be in the public interest.

Issues raised by objectors.

24 The following emerged as the salient issues:

Solar access; and

Common open space

The evidence and findings
Solar access control

25 Clause 7.9 of the DCP1992 states that [Note: Exhibit 4 p c-43]:

Council will not favour development proposals, which cause unreasonable overshadowing on either the adjoining sites or the proposed development itself.

Buildings should be designed to ensure that 50% of the common open space area of the proposed development receives a minimum of 4 hours sunlight between the hours of 9am and 3pm on 21 June.
The building design and site layout should ensure adequate solar access to the internal living spaces of the proposed and adjoining developments.

Solar access to common open space
26 There was agreement between the experts that most of the ground level landscaped common open space would meet the solar access requirements of DCP1992 and that there would be no significant overshadowing of neighbouring properties. There was no dispute between the parties that adequate solar access would be available to the internal living spaces of adjoining developments. The parties were in dispute as to whether the building design and site layout would ensure adequate solar access to the internal living spaces of the proposal.

Solar access to the internal living spaces

27 Clause 7.9 of the DCP1992 requires the Court to determine whether solar access to internal living spaces is adequate. This test of adequacy of solar access is subjective in the absence of specific standards and must must be considered along with other planning requirements and controls, and in particular density standards. I am satisfied that the test of adequacy of solar access for low-density housing would be a higher one than the test for medium and high-density housing. Clearly, in the latter case, there would be more opportunity for dwellings to be located on the southern side of the east / west party walls than for lower density development and given the density of development would be difficult, if not impossible, to avoid. A strict objective definition of adequacy in regard to solar access, with no regard to differing densities, would disadvantage all attempts at medium or higher density housing and make a mockery of planning controls that seek to allow more dense development and would not lead to orderly and economic development of land as required under the aims of the Environmental Planning and Assessment Act 1979.

28 The Court must use its discretion in assessing adequacy under the planning controls having regard for the evidence before it. With all due respect to the witnesses, the outcome of the conferencing seems confused by semantic differences over the definitions used. For example, as I understand the evidence, Mr Jensen uses the word ‘poor’ to suggest that solar access for some of the units does not meet the test of adequacy under the control. Professor Toon, on the other hand, uses the word ‘poor’ to suggest ‘adequate’ under the control but less than desirable. The test is qualitative and has not been scientifically measured. I have weighed solar access to internal living spaces with other matters to be considered under s 79C of the Act.

29 I have taken judicial notice of the fact that in midwinter the sun rises in plan about 30 degrees north of east and sets about 30 degrees north of west [See Sunlight Indicators Technical Bulletin No 13 published by SPA]. Thus in midwinter, the internal spaces of the dwellings on the southern side of an east / west party wall and set well back under large overhanging balconies, would be deprived of much sunlight even in the mornings and afternoons. Mr Jensen constructed the midwinter sun angles on the architectural plans to enable him to assess solar access within the internal living spaces. As I understand his evidence Professor Toon carried out the same exercise.

30 At the equinox, with the sun rising at about 6.00am due east and setting about 6.00pm due west, sunlight at a low angle would penetrate deep within an east facing unit to the south of an east / west party wall in the early morning and vice versa in the afternoons, all other things being equal.

31 In midsummer with the sun rising about 30 degrees to the south of east and setting around 30 degrees south of west, an east facing unit to the south of an east / west party wall would receive sunlight in the mornings and a west facing unit would receive sunlight in the afternoons.

32 Mr Jensen assessed the solar access to each of the proposed two bedroom units:

Unit No Access Comment

1, 13, 22 Access to living areas limited to late afternoons only The terrace overhang and kitchen wall will block access to the living room until late afternoon; Bedrooms 1 and 2 will be overshadowed by Units 11 and 12

2, 14,23 Access to living areas limited to afternoons only With the exception of the kitchen, the living area will have quite limited access; similarly bedrooms will have very poor solar access and daylight access given their position under a deep overhanging terrace

3, 15, 24 Access to living areas limited to mornings only The main aspect of this unit is south

4, 16, 25 Unlikely to be any direct solar access available With the possible exception of the kitchen, this unit will enjoy virtually no direct sun in mid-winter because of the position of the blade dividing wall and the overhang of terrace above

5, 17,26 Unlikely much direct solar access available Similar to Unit 4, this will only derive direct solar access in very early morning periods.

6 Same as 4

7 Same as 5

8 Satisfactory

9 Satisfactory

10 Satisfactory

11,20 Solar access limited to late afternoon

12, 21, 30 Solar access limited to late afternoon

28 Satisfactory

29 Satisfactory

33 Satisfactory

34 Satisfactory

31 Enjoys afternoon sun only

32 Enjoys morning sun only

Summary

Satisfactory 7 units

Unsatisfactory 24 units

33 Mr Jensen concluded that [Note: Exhibit 5 pp 13-4] :

This table indicates that only 7 out of the 31 units are fully satisfactory with regard to solar access. This is a concern that could be improved with changes in design. There is nothing intrinsic to the site, which should lead to poor solar access performance in the units.

34 The units that are satisfactory in Mr Jensen’s analysis are those on the northern side of the east west party walls and in the upper parts of the proposal.
35 During the course of the hearing, the applicant indicated that it would agree to a condition requiring the party walls between the balconies to be glazed for a distance 1m back from the edge of the balcony. There was no evidence to suggest that this change would do otherwise than improve the solar access to the southern units. This change was proposed after Mr Jensen’s first assessment and I am satisfied that this change of the design would assist the penetration of sunlight to the units to the south of their party walls by reducing the extent of shade on the southern units.

36 In a joint statement [Note: Exhibit 10] the experts agreed that with regard to solar access to internal spaces, the percentage of dwelling units achieving adequate solar access would be “…less than desirable”. Professor Toon contended, in that joint statement, that having regard to the density of the proposal, that the solar access opportunities would be adequate. Messrs Jensen and Apps did not support his position.

37 In a further joint statement [Note: Exhibit 14] Professor Toon concluded that fifteen (15) of the units would have good solar access, six (6) acceptable, and thirteen (13) poor. The respondent’s witnesses concluded that seven of the units would have good solar access, eight (8) acceptable and nineteen (19) poor.

38 Professor Toon, in reply [Note: Exhibit F Solar access assessment by Professor Toon], prepared a schedule, which concluded that there would be slightly greater solar access to most of the units than that assessed by Mr Jensen. Professor Toon included all habitable rooms, which is a stance justified by cl 7.9 of the DCP1992 which specifies ‘living spaces’ and not ‘living rooms’. On that basis, Professor Toon concluded that, 67% of the units would be either good or acceptable [Note: Exhibit 14 Professor Toon found there were 15 good, 6 acceptable and 15 poor in terms of solar access]. On the basis of that evidence Mr Maston submitted that the design would ensure adequate sunlight to the internal living spaces of the proposal as required by DCP1992.

39 I have concluded that not all of the internal living spaces would receive adequate levels of solar access. However, the orientation of the proposal with the central north / south corridor does enable some units to receive sunlight to the internal living spaces in the mornings and others to receive sunlight in the afternoon especially from the equinox through to midsummer. This might not result in optimal solar access for all units in all seasons; however, sunlight would be available to most of the balconies of the units, and taking into consideration the proposed density of development, I find this solar access would be satisfactory under s 79C of the Act and I would not refuse the application for this reason.

Common open space

40 The council’s requirements in relation to common open space are contained in ss 7.11 and 7.12 of the DCP1992.

41 Relevantly, [Note: Exhibit 4 pp c 43-4] “Landscaped common open space for the use of all residents of the development shall be provided at the minimum rate of… 50m2 for each 2-bedroom dwelling and 70m2 for each 3-bedroom or more dwelling.” Thus, for this proposal, an area of landscaped common open space of some 1,760m2 is required. If the three town houses on the north were excluded from the calculation, the required landscaped common open space would be 1,550m2. All the expert witnesses accepted this latter figure as being relevant.

42 DCP1992 adds [Note: Exhibit 4 p c 44]:

The common open space shall be provided in large parcels, which are capable of active use, by residents. The total required common open space area shall not include as part of the above calculation:

any common open space area having a length to width ratio of more than 3:1

small pockets of open space designed to enhance the appearance of the development;

landscaped areas located in the front setback; and

parking areas and vehicle accessways.

In order to provide usable open space for individual dwellings, the area of any balcony or terrace with a width of 3m or more than 2m or more may be included as part of the required common open space calculation. However, in the calculation of the total required common open space for any development, no more than 30% of the above ground open space (balcony or terrace area) may be included in the total.

43 It is interesting to note that rooftop common open space is not excluded from the calculation of the common open space. When counting 30% of the above ground open space in balconies and terraces and there is no requirement to count only 30% of a rooftop area.

44 Mr Jensen calculated the amount of landscaped common open space [Note: Exhibit 5 pp 16-7]:

Unit Type Total allowable open space areas (m2) Common open space allowance under DCP (m2)

Common open space area [at ground level] 782.4 782.4 (100%)

G/F.

1 Terrace 10.70 3.53 (30%)

2 Terrace 16.70 5.51 (30%)

3 Terrace 27.80 9.17 (30%)

4 Terrace 8.90 2.94 (30%)

5 Terrace 8.90 2.94 (30%)

6 Terrace 8.90 2.94 (30%)

7 Terrace 8.90 2.94 (30%)

8 Courtyard, Porch Balcony 87.99 0.00 (NIL)

9 Courtyard, Porch & Planter 84.60 0.00 (NIL)

10 Courtyard Porch Balcony & Planter. 88.51 0.00 (NIL)

11 Terrace 10.70 3.53 (30%)*

12 Terrace 10.70 3.53 (30%)*

37.03*

1/F

13 Balcony 10.70 3.53 (30%)

14 Balcony & Terrace 10.70 3.53 (30%)

15 Balcony 10.30 3.40 (30%)

16 Balcony & Terrace 8.90 2.94 (30%)

17 Balcony & Terrace 8.90 2.94 (30%)

18 Balcony & Terrace 8.90 2.94 (30%)

19 Balcony & Terrace 8.90 2.94 (30%)

20 Balcony & Terrace 10.70 3.53 (30%)

21 Balcony 10.70 3.53 (30%)

29.28*

2/F

22 Balcony 10.70 3.53 (30%)

23 Balcony & Terrace 10.70 3.53 (30%)

24 Balcony & Terrace 10.30 3.40 (30%)

25 Balcony & Terrace 8.90 2.94 (30%)

26 Balcony & Terrace 8.90 2.94 (30%)

27 Balcony & Terrace 8.90 2.94 (30%)

28 Balcony, Terrace & Planter 101.75 33.58 (30%)

29 Balcony, Terrace & Planter 97.03 32.02 (30%)

30 Balcony 10.70 3.53 (30%)

88.40

3/F

31 Terrace & Planter 187.00 61.71 (30%)

32 Terrace & Planter 166.80 55.04 (30%)

33 Terrace & Planter 120.25 39.68 (30%)

34 Terrace & Planter 118.79 39.20 (30%)

195.64

4 Common OS on Roof 547.24 180.59 (30%)

Total common OS Allowance 1313.34*

Common OS required (1550.0)
ie excluding the town houses

Total common OS if 100% of the roof area were included 1679.99**
* amended during the hearing to correct addition;

** this line added by the Court.

45 Mr Jensen stated [Note: Exhibit 5 p 15] :

Without the town houses the new requirement for common open space becomes reduced to 1,550 sq m, and the development provides approximately 1,320 sq m, [now 1,313m2] ie 85% of the requirement, a significant breach. More significantly only 782.4 sq m of the common area or about 50% is provided at ground level, with the balance provided in the balconies and substantial roof terraces.

In my opinion, such an imbalance between what is provided on the ground and at roof level is also unsatisfactory. For example, there is really no common open space in this proposal, which is "capable of active use by residents" as required in the DCP. This is particularly the case for older children or teenagers. At ground level the landscape proposal is clearly designed for passive use. Similarly the expanses of paving at roof level do not qualify in my view as "being capable of active use". The sole exception to this is a "childrens' play area" which provides token play equipment for infants.

Given the current format of the DCP, the common open space provision is an important and integral part of the density controls, the others being height and setback. DA deficiency in ground level common open space will permit the development to take up far more of the site than it could do otherwise and raise densities to far higher levels than might otherwise have been envisaged, with attendant problems such as increased strain on existing services and facilities traffic generation and visual dominance.
In this proposal, therefore, the failure to provide adequate open space is bad not only from the point of view of amenity but also in allowing an overdevelopment to take place.

46 Mr Apps supported that view, however, indicated that the council had recently approved residential flat buildings with around 80% of the required common open space.

47 Professor Toon excluded from calculation the front setbacks and stated:

The two areas that qualify for community open space are the roof garden (468m2) and the balance of the ground floor excluding driveways, areas for specified setbacks etc (346m2). The area of private balconies and terraces that can be included is 363m2. These add up to 1,177m2, which is some 373m2 less than the 1,550m2 required.
I am inclined to the view that this is an adequate standard in this instance because such a large percentage of the site is taken up with the frontage setback.

48 Mr Maston submitted that the council [Note: Exhibit 2 p 8 Notice of Determination No 02-1089, dated 9 August 2002] had recently approved a residential flat building in the vicinity of the land, at Nos 5-7 Kilbenny Street, Kellyville Ridge, with 86% of the requirement and other developments with as little as 80% of the requirement.
49 Mr Maston submitted that 80% would be an area of 1,240m2. He submitted that Mr Apps took Kilmore Street as the frontage and calculated the area of common open space as in above-ground balconies and terraces and the roof garden as 483.3m2 (30% of 1,611m2). To that he added the ground level common open space of 659.42m2 giving 1,142.72m2. He submitted that Mr Apps had conceded that an additional area of 149.24m2 on the Clonmore Street frontage should be added to give a total of 1,291.96m2 of landscaped common open space, which would be in excess of the 80% that the council is sometimes prepared to accept. Mr Maston submitted that Mr Apps’ evidence showed the proposal to be acceptable in its provision of common open space even counting only 30% of the roof garden. He submitted that if one added the area [Note: Add 367m2 for the additional 70% of the roof garden] the rooftop common open space the area would be 1,658.96m2 or more than the 100% requirement.

50 Mr Drury submitted that the evidence in respect of the rooftop common open space suggests that large parcels capable of active use by residents should be provided. On the basis of Mr Jensen’s evidence, only the rooftop gated play area would be capable of active use by resident children up to say 8 years of age, and would not be suitable for older children. He submitted on the evidence of Mr Jensen, that other than the gated play area the rooftop is really only suitable for passive recreation and not active as required. He submitted that residents would be exposed to wind on the roof and that there would be a danger that balls would be lost over the edge of the roof.

51 However, Mr Jensen agreed in cross-examination that he had not seen any residential flat buildings that had provided for active sports such as basketball.

52 Mr Drury urged the Court to accept the evidence of the council witnesses that this rooftop common open space fails in its purpose and inferred that it should not be fully included in the calculation of landscaped common open space.

53 I accept the submissions of Mr Maston that more than 100% of the required common open space would be provided in the proposal by including the whole of the rooftop garden and recreation area. The DCP1992 is silent as to whether or not to include rooftop areas in the calculation of common open space and I consider it reasonable to interpret that instrument to include all the rooftop common open space. As proposed the rooftop garden recreation area is available to all the residents, as it would be directly accessible by lift from the habitable floors of the building. It would be in a large area with, if needed, some shelter from the sun, under pergolas and otherwise designed to facilitate its active and passive use. There would be a barbeque area and the areas set aside for active use by younger children.

54 Even if I were wrong in including the whole of the rooftop open space in my interpretation of the common open space requirement under DCP1992, I consider that the provision of the proposed landscaped common open space would be adequate, taking into account the proximity of nearby public open space areas and more than 80% of the required common open space on that basis would be provided. On the site inspection, I visited the public park in Waterford Road and this would provide an opportunity for active recreation within a reasonable walking distance of the land.

55 Under the heading of ‘roof’ in the Better Urban Living Guidelines for Urban Housing in NSW [Note: Better Urban Living Guidelines for Urban Housing in NSW prepared by the then Department of Urban Affairs and Planning, by the Urban Design Advisory Service and the then NSW Department of Public Works p 54] referred to in cl 30 of SEPP65, the objective is to provide visually interesting and harmonious roofscapes and skylines through the design of roofs. These suggestions relevantly include:

outdoor recreation areas on flat roofs should be landscaped and incorporate shade structures and wind screens to encourage use;

tennis courts and other games areas are encouraged on flat roofs, however, fences and pavilions on the roof should be carefully designed to integrate with the building fabric;

roof design should consider generating an interesting skyline and enhancing views from adjoining developments.

56 Landscaping of the roof is proposed, and would provide shelter, a bar-be-que and children’s play area as part fulfilment of the above requirements. I would not refuse the application for reason of inadequate common open space.

Design quality principles of SEPP65

The proposal should satisfy the principles set out in SEPP65.
Clause 9: Principle 1: ‘context’ states:

Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.
Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.

57 Mr Jensen described [Note: Exhibit 5 pp 17-8] the context as being:

…to the west of the subject site is one and two-storey detached cottages. The subject site is currently undeveloped with some mature eucalypt species providing an area of open space (albeit potential residential development sites), which at present contribute to the amenity of the neighbourhood. The locality is under a state of transition and pastures in the vicinity of Windsor Road are being converted to medium density housing further to the east. The need for a physical transition in such a context is essential to reduce the visual impact of redevelopment, and to ensure that new buildings do contribute to the quality and identity of this area.

58 Professor Toon was of the opinion that the proposal would be consistent with objective of the zone and stated [Note: Exhibit E p 7] ,

…[t]his clause can only relate to the desired future character of the area. That is intended to be residential flat buildings in line with objective (b) of the 2(c) zone in Blacktown LEP 1989.

59 I was able to gauge the character of the area on the site inspection. The pastures to which Mr Jensen refers were not readily apparent, as Kellyville Ridge has been largely developed. As this is a precinct undergoing transition, the desired future character is that likely to be generated by the planning controls under the Residential 2(c) zoning.
60 To the north of the land are two-storey residential buildings and the proposal steps down to a two-storey height to the north. Three town houses with their north-facing courtyards abut that northern boundary, so I am satisfied that the visual relationship there, with adjoining development, would be acceptable. To the east, three-storey and more residential flat buildings are under construction and I am satisfied that with the proposed landscaping in place and matured to a reasonable height, the relationship to the east would be satisfactory. To the south there is presently vacant land, which I was told, is to be developed as a bulky goods store. The relationship to the south would be likely to be satisfactory given the proposed landscaping. To the west are the detached dwellings in Clonmore Street, and I am satisfied that there would be an appropriate transition with these dwellings given, the predominant three storey height, to the roof terraces of the third floor, the stepping back above that level, and the proposed spacing between buildings of about 26m, which would be partially screened by the proposed landscaping. I am satisfied that the proposal would adequately address the existing and desired future character of the area.

Clause 10: Principle 2: ‘scale’ states:

Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings.
Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.

61 Mr Jensen was of the opinion [Note: Exhibit 5 p 18] that in context a development application that was “…more sensitive …would …provide some transition in height between the main road frontages and the central part of the site thereby limiting the contrast and visual impact on development west of Clonmore Street.”
62 Professor Toon stated [Note: Exhibit E p 7] that:

The desired future character suggests a development of this scale. The proposal is designed to step up from the edges towards the high point in the middle of the site. In my opinion the overall bulk is very acceptable and will blend with other developments in the street including the single dwellings.

63 I accept the evidence of Professor Toon that the bulk of the proposal would be acceptable as it steps up to the middle of the land. I am also satisfied that the bulk and scale of the proposal would provide a reasonable transition between the residential flat development on Windsor Road, and residential development to the west on Clonmore Street and beyond.

Clause 11: Principle 3 ‘built form’ states:

Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

64 Mr Jensen considered [Note: Exhibit 5 p 18] the proposal to be of “…excessive bulk and scale and [to] lack common open area at ground level.” He was of the opinion that there would be “…an over-development of the site”. He said the proposal would have “…limited internal amenity, excessive density and [would] make a negative contribution to streetscape.” “[P]roliferation of this form of housing would create an environment completely at odds with the current neighbourhood character,” he said.
65 Professor Toon stated [Note: Exhibit E p 7] the proposed “…built form would define the public domain and… contribute to the character of the streetscape and …the proposal would fit in with the existing development.”

66 I consider the proposal to be of a reasonable bulk and not an over-development of the land. I accept the evidence of Professor Toon that the proposal would fit in with the existing streetscapes and contribute to the desired future character of the area.

Clause 12: Principle 4 ‘density’ states:

Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents).
Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.

67 Mr Jensen considered [Note: Exhibit 5 p 19] the proposal would result in “…a far higher density than normally occurs in 2(c) zones subject to full compliance with the DCP standards set out in clause 7.” He sought “…a transitional scale of perhaps 3 storeys maximum.”
68 Professor Toon was of the opinion [Note: Exhibit E p 8] that “…the density proposed is in line with what is intended in the 2(c) zone and is sustainable in this location.”

69 I am satisfied that the proposal is one that could be expected under the requirements of DCP1992. Mr Jensen’s assertion that it is of far higher density than normally occurs in the 2(c) zone has not been proven to my satisfaction. The proposal complies with the height limit, setbacks, and common open space requirements of the DCP1992 as I interpret them. I accept the evidence of Professor Toon that it is of a density that is anticipated and appropriate for the land and it’s context.

Clause 14: Principle 6 – ‘landscape’ states:

Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain.

Landscape design builds on the existing site's natural and cultural features in responsible and creative ways. It enhances the development's natural environmental performance by co-ordinating water and soil management, solar access, micro-climate, tree canopy and habitat values. It contributes to the positive image and contextual fit of development through respect for streetscape and neighbourhood character, or desired future character.
Landscape design should optimise useability, privacy and social opportunity, equitable access and respect for neighbours' amenity, and provide for practical establishment and long-term management.

70 Mr Jensen considered [Note: Exhibit 5 p 19] the proposed landscaping would be “…inconsistent with the above principles” and would be “…alien to the natural ecology it replaces”, and would “…not address the need for active recreation”, and would “…bear no relationship to surrounding detached housing.”

71 Professor Toon noted [Note: Exhibit E p 8] that there would be ample space in the setbacks for deep soil planting and allowing for screening vegetation.

72 This issue was not strongly pressed during the hearing but I am satisfied that the proposed landscaping [Note: Exhibit A Drawing No 02125BA1/3D; 2/3D; and 3/3D] would be adequate.

Clause 15: Principle 7 – ‘amenity’ states

Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.

73 Mr Jensen pointed [Note: Exhibit 5 p 19] to the deficiencies of solar access, poor common open space area and under sized parking bays. He considered the unit layouts to be “awkwardly designed” with the kitchen, meal areas and terraces being “too small” in the units located on ground and first levels. He suggested, “…some bedrooms located deep within the development would have inadequate daylight.” On the positive side of the ledger he was of the opinion that “…units on the second and third levels have unusually large roof terraces for two bedroom units, which while contributing towards common open space area under the rules of the DCP, are exclusively for private use.”
74 Professor Toon considered [Note: Exhibit E p 8] the amenity of the individual units to be satisfactory and all have a degree of through ventilation. He considered solar access to be reasonable although conceded that more windows could achieve greater benefit of the north aspect. He was also satisfied with the shape and size of rooms and that even the deeply recessed bedrooms would be adequate.

75 Some of the units have good solar access, others poor, but overall the solar access would be satisfactory, as explained above. I am also satisfied that the size and shape of the rooms would be reasonable and that sufficient daylight would be provided to each. Each unit would have a balcony or terrace of reasonable proportions. Thirty-one two-bedroom units of around 100m2 each and three three-bedroom town houses of around 110m2 are proposed which would to allow for a variety of residential lifestyles sought by objective (b) of the BLEP.

Clause 18: Principle 10 –‘aesthetics’ states

Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area.

76 Mr Jensen considered [Note: Exhibit 5 p 20] the proposal would not respond in an appropriate way to its context, since it would be of excessive bulk and scale, would make a negative contribution to streetscape and provide no transition.

77 Professor Toon was of a contrary opinion [Note Exhibit E p 8] and he considered that the proposal would be aesthetically quite adequate as the modeling of Clonmore and Kilmore Streets facades would be sufficiently “interesting” as to be “compatible with the desired future character” of the area.

78 I accept the evidence of Professor Toon, and I am satisfied that the proposal would respond sufficiently well to its context as not to require refusal. Also I consider that it would not be of such excessive bulk and scale that would require refusal. The modeling of the facades would soften the visual impact in the streetscape, provide a transition between the detached dwellings to the west and the residential flat buildings to the east and provide visual interest as suggested by Professor Toon.

The public interest and issues raised by objectors

79 Much of the public concern seemed to relate to the question of the 2(c) zoning. The zoning permits development of residential flat buildings, such as that proposed. I am satisfied that the proposal meets at least one of the objectives of the zone as required under cl 9(3) of the BLEP.

80 There would be a difference in the scale and bulk of the proposal when compared with the detached dwellings opposite in Clonmore Street, however, that is an expected outcome of the zoning that recently has been gazetted. Any impacts would be softened by the significant separation between the proposal and the detached dwellings in Clonmore Street, the modelling of the proposed facades, the proposed landscaped setbacks to Clonmore Street, and the predominant three storey height, to the roof terraces of the third floor. Above that level the fourth storey of the proposal would be largely setback. As a result, I am satisfied the relationship between the existing houses and the proposal would not be a reason for refusal of the application

81 The Court on appeal is required to consider the application under s 79C of the Environmental Planning and Assessment Act 1979 and I am satisfied, in this case, the application is satisfactory and would not warrant refusal.
82 For the above reasons, the appeal is upheld.

Conditions

83 The conditions are those in Exhibit 8 with reference to the statement of environmental effects added in Condition 2 and the conditions in Exhibit P added. Condition added to Condition 28 that the east / west party walls are to be constructed of glass blocks, or similar, for a length of 1m from the face of the balcony.

Orders

84 My orders are:

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

Development application No 02/4805 lodged with the respondent council on 22 October 2002 to erect a four-storey residential flat building comprising thirty-four (34) dwellings with basement car parking and rooftop recreation areas, at Lots 2001-2007 DP 1040624, being Nos 36-40 Clonmore Street and Nos 16-22 Kilmore Street, Kellyville Ridge, is approved subject to Conditions No 1 to 101 in Annexure A.

The exhibits with the exception of Exhibits A, B, H, K, L, 1 and 8 are returned.

S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

Wardan Developments Pty Limited

Blacktown City Council

Terminology

1 Any reference in this consent to a Construction, Compliance, Occupation or Subdivision Certificate is a reference to such certificates as defined by Section 109(c) of the Environmental Planning & Assessment Act 1979.

2 This consent relates to the following drawings/details submitted to Council with the Development Application:

The Issue D2 architectural plans, showing driveway section as amended, mechanical ventilation stack revision and exhaust fans to internal wet areas are in Exhibit K and were received 3 October 2003. The hydraulic services drawings by Young Consulting Engineers Revision B are in Exhibit L and also were received 3 October 2003. Statement of environmental effects prepared by Planning Directions Pty Limited also applies to the application is undated in Exhibit B, and the application is also amended by the conditions hereunder.

3 Prior to construction of the approved development it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued either by Council or an appropriately accredited certifier. A separate application, complete with detailed plans and specifications, must be made for a Construction Certificate.

4 The granting of this consent does not imply or confer compliance with the requirements of the Disability Discrimination Act 1992. The applicant is advised to investigate any liability that may apply under that Act. The current suite of Australian Standard 1428 - Design for Access and Mobility, should be consulted for guidance. The prescriptive requirements of Part 1 of the Standard apply to certain buildings requiring development consent.

Other Necessary Approvals

5 The applicant’s attention is drawn to the need to obtain Council’s separate approval for any ancillary activity not approved by this consent, including:

5.1 The removal of any tree(s) not indicated on the approved plans and any tree(s) located greater than 3 metres from the building perimeter.

5.2 Any fencing located forward of the proposed building and exceeding the heights specified in Schedule 6 of the Blacktown Local Environmental Plan 1988.

5.3 The erection of any retaining walls, not being exempt development.

5.4 Strata subdivision of the development.

6 A separate application or details (as necessary) shall be submitted for the separate approval of Council, under the provisions of the Local Government Act 1993, for any of the following:

6.1 The installation of a vehicular footway crossing servicing the development, as required by Part A Engineering Works.

7 The applicant is advised to consult with:

7.1 Sydney Water Corporation Limited

7.2 Integral Energy

7.3 Natural Gas Company

7.4 The relevant local telecommunications carrier

regarding their requirements for the provision of services to the development and the location of existing services that may be affected by proposed works, either on site or on the adjacent public road(s). All approved building construction plans will need to be submitted to and stamped by Sydney Water Corporation Limited as an indication that they comply with the Corporation’s requirements. Sydney Water Corporation Limited may also require the applicant to obtain a Trade Waste Approval as part of the operation of the approved development. Enquiries should be made of the Corporation’s requirements for the eventual operation of the approved use.

8 Information regarding the location of underground services may be obtained from the Sydney "Dial Before You Dig" service, telephone number 1100, Fax No. (02) 9806-0777. Inquirers should provide the street/road name and number, side of street/road and the nearest cross street/road.

Other Fees and Security Deposits

9 The payment of the following fee to Council's Development Services Unit pursuant to Section 608 and 609 of the Local Government Act 1993. The fee is subject to periodic review and may vary at the actual time of payment.

9.1 Engineering Inspection Fee: $184.00

10 The payment of the following fee to Council's Maintenance Section pursuant to Sections 608 and 609 of the Local Government Act 1993. The fee is subject to periodic review and may vary at actual time of payment.

10.1 Vehicular Crossing Application and Inspection Fee: $92.00

11 All engineering works required by Part A must be designed and undertaken in accordance with the relevant aspects of the following documents, except as otherwise authorised by this consent:

11.1 Blacktown City Council’s Works Specification - Civil (Current Version).

11.2 Blacktown City Council’s Engineering Guide for Development (Current Version).

lacktown City Council Development Control Plan (Current Version).

11.4 Blacktown City Council Soil Erosion and Sediment Control Policy.

Note

Tree Planting and Service Locations

12 In order to facilitate street tree planting that does not impact on public utilities, the applicant is advised to liaise with the relevant service authorities regarding the location and use of their specific service allocation. These authorities have indicated that it may be possible to lay services on opposite sides of the road thereby providing larger areas for tree planting.

Suburb Name

13 The land the subject of this consent is known to be located in the following suburb. This suburb name is to be used for all correspondence and property transactions:

Suburb: Kellyville Ridge.

Other Matters

14 Note: Although On-Site Detention appears on the drainage plans as submitted, it should be noted that it would not be required for this proposal.

15 This consent does not authorise the encroachment or overhang of any water or stormwater drainage easement. The relevant service authority must separately approve any encroachment of other easements.

PRE-CONSTRUCTION CERTIFICATE MATTERS (PLANNING)
Preamble
16 The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications, which accompany the Construction Certificate.

17 Prior to the issue of a Construction Certificate, whether by Council or an appropriately accredited certifier, the following fee and bond are to be paid to Council. The fee and bond are subject to periodic review and may vary at actual time of payment.

18 The road maintenance bond is a bond, which is taken to cover the cost of any damage to Council's assets (e.g. drainage systems, footpaths, kerb and guttering etc) arising from private development work. The bond will be refunded (less administration costs) should no damage be caused to Council's assets adjacent to the development site, as a result of the construction works. The road inspection fee covers the cost of an inspection of road and footpath adjacent to the site at the commencement and upon completion to work.

Note

: The road maintenance bond and inspection fee nominated above are valid only until the end of this financial year, after which a new amount/fee will apply.

19 The following monetary contributions, pursuant to Section 94 of the Environmental Planning & Assessment Act 1979, must be paid. The amounts below are BASE contributions, which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (by bank cheque if immediate clearance is required;

NOTE: Council DOES NOT accept payment of Section 94 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) or Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first.

Contribution Item Base Amount Relevant CP Base Date

(i) Open Space $323,432 5 Sept 02

(ii) Community Facilities $44,282 5 Sept 02

* The contribution(s) will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings).

* Copies of the following relevant Contributions Plan(s) may be inspected/purchased from Council's Development Services Unit: Section 94 CP No. 5 - Parklea Release Area

* The Section 94 Contribution have been based on the total developable area, the site's road frontage and/or the potential additional population nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 contribution(s) will be adjusted accordingly.

20 Any Compliance Certificate issued for the payment of Section 94 Contributions must be accompanied by a letter from Council acknowledging that the correct Section 94 Contributions have been paid for that particular development or stage of development.

Consistency with Approved Development Plans

21 Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans.

Landscaping/Appearances

22 The Applicant must submit for the approval of the Council’s Director, Environmental and Planning Services:

22.1 a detailed colour schedule for all external building materials and finishes. In this regard, the external colour scheme is to be compatible with the existing streetscape.

23 The submitted landscape plan, Drawing Numbers 02125 BA1/3/D to BA3/3/D prepared by Vision Dynamics dated 23/6/03 (Council File Enclosure Numbers 74m - 74O) is to be amended to the satisfaction of Council’s Director, Environmental and Planning Services to provide for an appropriate increase in the number of indigenous species which are adapted to the prevailing climate and soil conditions. Further, the number of trees (i.e. with a mature height of 12 metres or more) is to be increased to 12.

24 The existing trees indicated in red on the attached plan are to be retained, unless an aborist's report (to be submitted by the applicant) indicates that they can be removed. These are to be clearly shown on the amended landscape plan referred to in Condition 23.

25 An automatic irrigation system is to be provided to the satisfaction of Council’s Director, Environmental and Planning Services to all planter boxes on the common open space roof top areas.

26 All common open space areas and the internal driveway are to be appropriately illuminated by the use of bollard lighting or the like to provide for the safety of residents at night. These are to be designed to the satisfaction of Council’s Director, Environmental and Planning Services so as not to cause any unreasonable light spill onto adjacent properties.

27 The reflectivity index of glass used in the external façade of the building is not to exceed 20 percent.

28 Any bathroom, w.c. or laundry window in the external wall of the building shall be fitted with translucent glazing. The east / west party walls are to be constructed of glass blocks, or similar, for a length of 1m from the face of the balcony.

Car Parking

29 A total of 48 car parking spaces are to be provided generally in accordance with the submitted plan, Drawing Number 2840 DA:03/B dated November 2002 (Council File Enclosure No. 74C) with the following amendments:

29.1 provision of 37 spaces for residents and 11 spaces for visitors, the spaces to be suitably marked accordingly.

29.2 The 11 parking spaces, numbers 1 - 5, 10 and 20 - 24 are to be allocated and so marked to visitors, being those most accessible from the entrance and/or providing access to the common storage areas.

29.3 Each of the 2 sets of 2 stacked car parking spaces (Nos. 15 & 17 and 16 & 18) are to be allocated to a 3 bedroom unit only.

30 A letter must accompany any Compliance Certificate issued for the payment of Section 94 Contributions from Council acknowledging that the correct Section 94 Contributions have been paid for that particular development or stage of development.

31 The amended plans are to be submitted for approval prior to the release of the Building Construction Certificate.

32 The internal driveway and parking areas are to be designed in accordance with Australian Standard 2890.1. The driveway gradients shall comply with Australian Standard 2890.1-1993. A certificate of a qualified structural engineer certifying such compliance shall be submitted with the Construction Certificate Application.

33 The following documentary evidence is to be obtained prior to the issue of any Construction Certificate.

33.1 A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Applications must be made through an authorised Water Servicing Coordinator, for details see the Sydney Water Website customer urban index or telephone 13 20 92.

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

33.2 A written clearance from Integral Energy, stating that electrical services have been made available to the development or that arrangements have been made for the provision of services to the development.

33.3 A written clearance from Telstra or any other recognised communication carrier, stating that services have been made available to the development or that arrangements have been made for the provision of services to the development.

Waste/Recycling Management and Collection

34 Amended plans and details are to be submitted prior to the release of the Building Construction Certificate for the approval of Council's Manager Waste as follows:

34.1 If Council's garbage/recycling service is to be used, the amended plans are to provide for the storage on site of 17 x 240 litre garbage bins (i.e. 1 bin per 2 units) and 17 x 240 litre recycling bins (i.e. 1 bin per 2 units) for collection by Council's garbage contractor.

34.2 If a private waste contractor is to be used for either garbage or recycling collection, details are to be provided of the location and design of the storage facility for the garbage and recycling containers and the means by which these containers are to be accessed by the collection vehicle.

34.3 The garbage/recycling storage facilities are to be enclosed by a masonry wall and provided with a suitable roof cover with the same design treatment as the overall development and to be screened by landscaping, details to be provided for Council's approval.

34.4 A cold-water cock shall be provided in or adjacent to the waste storage facility(s) for cleaning purposes with waste water diverted to a sewer drain.

35 In the event of a strata subdivision of the development, any Body Corporate created upon the subdivision shall comply with conditions 23, 25, 26, 29 and 34. The Body Corporate is to ensure that the facilities and services referred to in the conditions referred to in this condition are properly maintained. This does not relieve the applicant or developer from complying with these conditions.

PRE-CONSTRUCTION CERTIFICATE MATTERS (BUILDING)
Preamble
36 The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications, which accompany the Construction Certificate.

Compliance with Building Code of Australia

37 All aspects of the building design shall comply with the applicable performance requirements of the Building Code of Australia so as to achieve and maintain acceptable standards of structural sufficiency, safety (including fire safety), health and amenity for the ongoing benefits of the community. Compliance with the performance requirements can only be achieved by:

37.1 Complying with the deemed to satisfy provisions, or

37.2 Formulating an alternative solution which:

37.2.1 complies with the performance requirements, or

37.2.2 is shown to be at least equivalent to the deemed to satisfy provisions, or

37.3 A combination of 37.1 and 37.2.

38 A preliminary assessment of the plans submitted with the application has disclosed that the following design and/or construction issues need to be addressed prior to the issue of any Construction Certificate to ensure compliance with the Building Code of Australia:

38.1 The design of the Buildings must comply with Parts C, D, E, F of the Building Code of Australia.

Site Works and Drainage

39 Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, shall be designed by an appropriately qualified person. Details are to be included with the plans and specifications to accompany any Construction Certificate.

40 Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities of 159mm per hour over an average recurrence interval of 20 years. The design shall:

40.1 be in accordance with Australian Standard 3500.3.

40.2 provide for drainage discharge to an existing Council drainage system.

40.3 ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

41 Soil erosion and sediment control measures shall be designed in accordance with Council's Soil Erosion and Sediment Control Policy. Details are to be included with the plans and specifications to accompany any Construction Certificate.

PRIOR TO CONSTRUCTION WORK COMMENCING
Notification to Council

42 At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning & Assessment Regulation 1994, of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence.

Tree Protection

43 The 3 trees referred to in Condition 24, which are to be retained, are to be suitably protected prior to the commencement of construction works on site. Tree guards, barriers or other measures as necessary are to be provided.

Residential Building Work

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

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

44.1.1 has been informed in writing of the licensee's name and contractor licence number, and

44.1.2 is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

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

44.2.1 has been informed in writing of the person's name and owner-builder permit number, or

44.2.2 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 purposes of 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

Toilet Facilities

45 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 1 toilet for every 20 persons or part of 20 persons employed at the site.

46 Each toilet provided:

46.1 must be a standard flushing toilet, and

46.2 must be connected:

46.2.1 to a public sewer, or

46.2.2 if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

46.2.3 if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

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

Signs on Building and Demolition Sites

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

48.1 stating that unauthorised entry to the work site is prohibited, and

48.2 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.

49 This condition does not apply to:

49.1 building work carried out inside an existing building, or

49.2 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.

Protection of Public Places

50 If the work involved in the erection or demolition of a building:

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

50.2 involves the enclosure of a public place,

51 If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work site falling into the public place.

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

Soil Erosion and Sedimentation Control

53 All measures specified in the Construction Certificate to control soil erosion and sedimentation are to be installed prior to the commencement of construction works. Infringement Notices, incurring a monetary penalty, may be issued by Council where measures are not provided or maintained.

54 A single vehicle/plant access to the development site shall be provided to minimise ground disturbance and transport of soil onto any public place. Such access shall be provided in accordance with the requirements of Appendix "F" of Council's Soil Erosion and Sediment Control Policy. As a minimum, single sized 40mm or larger aggregate placed 150mm deep, and extending from the street, kerb/road shoulder to the site is to be provided.

Sydney Water Authorisation

55 Sydney Water Corporation approval, in the form of appropriately stamped Construction Certificate plans, is to be obtained to verify that the development meets the Corporation's requirements concerning the relationship of the development to any water mains, sewers or stormwater channels. The Notice must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.

56 Should Council be appointed as the Principal Certifying Authority for the project, structural details of the following nominated component(s), prepared and/or certified by a professional engineer or other appropriately qualified person, shall be lodged with Council prior to commencing or constructing that portion of the approved development:

Nominated component(s):

(a) Footing piers;

(b) Footing system;

(d) Wall frame bracing;

(e) Roof trusses;

(f) Structural steelwork; and

(g) Retaining walls

DURING CONSTRUCTION (PLANNING & BUILDING)
Compliance with Building Code of Australia

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

Excavations and Backfilling

58 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. Such work is to be guarded and protected to prevent it from being dangerous to life or property.

Support for Neighbouring Buildings

59 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 (adjoining building), including a public road or place, the person causing the excavation to be made:

59.1 must preserve and protect the adjoining building from damage, and

59.2 if necessary, must underpin and support the adjoining building in an approved manner, and

59.3 must, at least 7 days before excavating below the level of the base of the footings of an adjoining building, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to such owner.

60 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 condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

Surveys

61 The building(s) shall be set out by a registered surveyor to verify the correct position of each structure in relation to the property boundaries.

Noise Control

62 Any noise generated during the construction of the development shall not exceed the limits specified in the Protection of the Environment Operations Act 1997.

63 The hours of work for any noise generating construction of the proposed development are to be limited to between 7am and 6pm, Mondays to Fridays inclusive, 7am to 1pm Saturdays, with no construction activities to be undertaken on Sundays or public holidays.

64 A separate Compliance Certificate shall be issued for each of the following applicable stages of the building construction in order that the nominated building work may immediately progress:

Stage Nominated Work

(a) Footing system * placing concrete or covering

(b) Floor slab * placing concrete

(d) Frame (including any

required termite barriers) * affixing internal linings

(e) Wet area flashing * affixing wall or floor tiles

(f) Completion * occupation or use

Maintenance of Soil Erosion Measures

65 All required soil erosion and sediment control measures are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. Council may issue infringement Notices, incurring a monetary penalty, where the maintenance of measures is inadequate.

Surface Drainage

66 To prevent surface water from entering the building:

66.1 the floor level shall be a minimum of 225mm above finished ground level.

66.2 seepage and surface waters shall be collected and diverted clear of the building site by a subsurface/surface drainage system.

Note

Car Parking and Access

67 The access road is to be sealed with a hard standing, all-weather material (using brick paving or other material having a similar aesthetic effect, e.g. stamped concrete) and maintained to a satisfactory usable standard.

68 The access road and other paved areas are to be graded to provide continuous surface drainage flow paths to approved points of discharge.

69 The use of the visitor car parking spaces in the basement is to be encouraged by the placement of a sign indicating its availability. The sign is to be located near the entrance to the car park and its design is to be compatible with the development.

70 Access to and parking for persons with disabilities is to be provided in accordance with Australian Standard 2890.1.

Tree Protection and Landscaping

71 Barriers, tree guards and other measures employed to protect the 3 trees referred to in Condition 24 are to be effectively maintained for the duration of construction works.

72 All landscaping is to be undertaken in accordance with approved plans/details. All turfed areas are to finish level with adjoining surfaces and shall fall evenly to approved points of drainage discharge.

73 The proposed common open space area is to be embellished with appropriate recreational equipment, which may include children's play equipment, other recreational facilities such as gazebos/BBQs and permanent seating and lighting. The children's play equipment is to be provided with a safe-fall zone with a soft-fall floor complying with the applicable Australian standard.

74 In the event of a strata subdivision of the development, any Body Corporate created upon the subdivision shall comply with condition 72 and ensure the continued maintenance of the services referred to in that condition. This condition does not relieve the applicant or developer from complying with this condition.

Ancillary Works

75 Mailboxes are to be provided on site in accordance with the requirements of Australia Post.

76 A single master TV antenna is to be installed to service each building and provision made for connection to each dwelling unit within that building.

77 The development is to be provided with fencing and screen walls at full cost to the developer as follows:

77.1 Where a screen wall faces the road, pedestrian walkway, reserve or public place, that wall shall be constructed of the same brick as that used in the external wall of the building.

77.2 Rear and side boundaries (behind the building line) and private courtyards are to be provided with walls/fences 1.8m high and constructed of timber (lapped an capped), ‘Colorbond’ or brick (i.e., the same as that used in the external wall of the building).

Building Materials and Wastes

78 Building and construction materials, plant, equipment and the like are not to be placed or stored at any time on Council's footpath or roadway.

79 The developer is to ensure that all waste generated at excavation and construction stage is managed fully in accordance with the submitted Waste Management Plan held at Council File Enclosure Number 2B, and in accordance with Council's policy which requires that suitable and effective builder's refuse and waste storage facilities are provided on the development site for the duration of construction works.

Evidence in the form of receipts etc should be kept to demonstrate compliance with the Waste Management Plan and submitted to Council/PCA prior to release of the Occupation Certificate.

DURING CONSTRUCTION (ENGINEERING)
Clearances from Service Authorities

80 Prior to commencement of construction of footway crossings a clearance must be obtained from the relevant telecommunications carriers and Integral Energy that all necessary ducts have been provided under the proposed crossing.

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE
Consolidation of Lots

81 The lots are to be consolidated into one title, registered with the Land Property Information Office, prior to the commencement of the use or occupation of the development.

82 The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of an Occupation Certificate.

Note : Should the cost of damage repair work not exceed the road maintenance bond Council will automatically call up the bond to recover its costs. Should the repair costs exceed the bond amount a separate invoice will be issued.

Compliance with Conditions

83 The use or occupation of the approved development shall not commence until such time as all conditions of this development consent have been complied with. The use or occupation of the development prior to compliance with all conditions of development consent may make the applicant/developer liable to legal proceedings.

Removal of Temporary Facilities

84 Any hoarding or similar barrier erected to protect a public place is to be removed from the site prior to the use or occupation of the development.

85 Any temporary toilet facilities provided during construction works are to be appropriately dismantled, disconnected and removed from the site.

86 All temporary soil erosion controls employed during construction are to be removed and other permanent measures in accordance with Council's Soil Erosion Control Policy are to be implemented prior to the use or occupation of the development.

87 All temporary builder's signs or other site information signs are to be removed upon the completion of site works.

88 Any temporary site access provided for the purpose of construction works is to be removed and the kerb and gutter and/or previous roadworks reinstated in a manner satisfactory to Council. Should the reinstatement involve the provision of a new vehicular crossing, layback, kerb and gutter or road shoulder works the separate approval of Council's Maintenance Section is to be obtained (and appropriate fees paid) prior to such works commencing.

Fire Safety Certificates

89 A final fire safety certificate is to be issued prior to the issue of a final Occupation Certificate to use or change the use of a building, except in the case of a Class 1a or 10 building(s).

Additional Inspections

90 Any additional Council inspections beyond the scope of any Compliance Certificate package and needed to verify full compliance with the terms of this consent, will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Payment of Fees

91 All fees payable to Council as part of any Construction, Compliance or Occupation Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full.

Service Authorities

92 A final clearance is to be obtained from Integral Energy, Telstra or any other recognised telecommunications carrier and the Sydney Water Corporation if such clearance (in the form of a notification of arrangements or a Section 73 Certificate) has not previously been issued. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development.

OPERATIONAL MATTERS (PLANNING)
Car Parking and Access

93 All required off-street car parking spaces and internal roads shall be maintained in a satisfactory usable manner.

General

94 Spillage of light, if any, shall be controlled so as not to cause nuisance to the amenity of adjoining land.

95 If an intruder alarm is installed on the premises it shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997.

Landscape Maintenance

96 All landscaped areas are to be maintained at all times in a suitable manner in accordance with Condition 22.

97 Drainage from the site must be connected into Council's existing drainage system in Kilmore Street. In this regard it is required to connect into the standard Council Kerb inlet pit in Kilmore Street. In accordance with Drawing No. A (BS) 106 to provide the appropriate connection.

Note : Inspection of the connection to Council's system must be made by Council's Engineering Development Supervisor who can be contacted by phoning 9830 9718 between 7am and 8am or 12.30pm and 1.30pm A site inspection is required prior to commencement of work. Twenty Four (24) hours notice must be given and the $184.00 Engineering Inspection Fee required by this consent must be paid prior to contact.

Vehicular Crossings

98 Construction of Council's standard commercial and industrial vehicular footway crossing(s), with the following nominated width(s) at the property boundary in accordance with Council plan A (BS) 103. Nominated Widths: 6 Metres.

Footpaths

99 The footway area being fully turfed in an appropriate manner so as to be free draining to the street and of neat appearance.

Finished levels and working levels

100 Finished levels of all internal works at the road boundary of the property must be: 4% above the top of the kerb.

Ventilation duct grate

101. A grate secured by bolts shall be fitted to the top of the basement ventilation duct. The basement ventilation system shall comply with the specifications as set out in the report of Viscona Pty Limited dated 29 September 2003 (Exhibit M).

S J Watts

CITATION:	Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228
PARTIES:	Wardan Developments Pty Limited Blacktown City Council
FILE NUMBER(S):	10208 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Solar Access Common open space
LEGISLATION CITED:	State Environmental Planning Policy No 65 - Design Quality, (SEPP65) Blacktown Local Environmental Plan 1988, (BLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Coffs Harbour Environment Centre v Coffs Harbour 1991 74 LGRA 185
DATES OF HEARING:	13, 14 and 15 August 2003 and mention 3 October 2003
DATE OF JUDGMENT:	10/08/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston, barrister, instructed by Mr P Tohme, solicitor SOLICITORS Greenaway & Tohme RESPONDENT Mr C T Drury, solicitor SOLICITORS Phillips Fox

Unit No	Access	Comment
1, 13, 22	Access to living areas limited to late afternoons only	The terrace overhang and kitchen wall will block access to the living room until late afternoon; Bedrooms 1 and 2 will be overshadowed by Units 11 and 12
2, 14,23	Access to living areas limited to afternoons only	With the exception of the kitchen, the living area will have quite limited access; similarly bedrooms will have very poor solar access and daylight access given their position under a deep overhanging terrace
3, 15, 24	Access to living areas limited to mornings only	The main aspect of this unit is south
4, 16, 25	Unlikely to be any direct solar access available	With the possible exception of the kitchen, this unit will enjoy virtually no direct sun in mid-winter because of the position of the blade dividing wall and the overhang of terrace above
5, 17,26	Unlikely much direct solar access available	Similar to Unit 4, this will only derive direct solar access in very early morning periods.
6	Same as 4
7	Same as 5
8	Satisfactory
9	Satisfactory
10	Satisfactory
11,20	Solar access limited to late afternoon
12, 21, 30	Solar access limited to late afternoon
28	Satisfactory
29	Satisfactory
33	Satisfactory
34	Satisfactory
31	Enjoys afternoon sun only
32	Enjoys morning sun only
Summary
Satisfactory	7 units
Unsatisfactory	24 units

Unit	Type	Total allowable open space areas (m2)	Common open space allowance under DCP (m2)
Common open space area [at ground level]	782.4	782.4 (100%)
G/F.
1	Terrace	10.70	3.53 (30%)
2	Terrace	16.70	5.51 (30%)
3	Terrace	27.80	9.17 (30%)
4	Terrace	8.90	2.94 (30%)
5	Terrace	8.90	2.94 (30%)
6	Terrace	8.90	2.94 (30%)
7	Terrace	8.90	2.94 (30%)
8	Courtyard, Porch Balcony	87.99	0.00 (NIL)
9	Courtyard, Porch & Planter	84.60	0.00 (NIL)
10	Courtyard Porch Balcony & Planter.	88.51	0.00 (NIL)
11	Terrace	10.70	3.53 (30%)*
12	Terrace	10.70	3.53 (30%)*
37.03*
1/F
13	Balcony	10.70	3.53 (30%)
14	Balcony & Terrace	10.70	3.53 (30%)
15	Balcony	10.30	3.40 (30%)
16	Balcony & Terrace	8.90	2.94 (30%)
17	Balcony & Terrace	8.90	2.94 (30%)
18	Balcony & Terrace	8.90	2.94 (30%)
19	Balcony & Terrace	8.90	2.94 (30%)
20	Balcony & Terrace	10.70	3.53 (30%)
21	Balcony	10.70	3.53 (30%)
29.28*
2/F
22	Balcony	10.70	3.53 (30%)
23	Balcony & Terrace	10.70	3.53 (30%)
24	Balcony & Terrace	10.30	3.40 (30%)
25	Balcony & Terrace	8.90	2.94 (30%)
26	Balcony & Terrace	8.90	2.94 (30%)
27	Balcony & Terrace	8.90	2.94 (30%)
28	Balcony, Terrace & Planter	101.75	33.58 (30%)
29	Balcony, Terrace & Planter	97.03	32.02 (30%)
30	Balcony	10.70	3.53 (30%)
88.40
3/F
31	Terrace & Planter	187.00	61.71 (30%)
32	Terrace & Planter	166.80	55.04 (30%)
33	Terrace & Planter	120.25	39.68 (30%)
34	Terrace & Planter	118.79	39.20 (30%)
195.64
4	Common OS on Roof	547.24	180.59 (30%)
Total common OS Allowance	1313.34*
Common OS required	(1550.0) ie excluding the town houses
Total common OS if 100% of the roof area were included	1679.99** * amended during the hearing to correct addition;

Contribution Item	Base Amount	Relevant CP	Base Date
(i) Open Space	$323,432	5	Sept 02
(ii) Community Facilities	$44,282	5	Sept 02