Land and Environment Court New South Wales

• Medium Neutral Citation: Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 1270
• Hearing dates: 1, 8 August and 9 September 2011
• Decision date: 13 September 2011
• Jurisdiction: Class 1
• Before: Morris C

Decision

Appeal upheld.

• Catchwords: Conditions, waste collection, landscaping, bushfire considerations, roadworks.
• Legislation Cited: Environmental Planning and Assessment Act 1979.
• Cases Cited: Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 1248
• Texts Cited: Planning for Bushfire Protection 2006; Better Practice Guide for Waste Management in Multi-Unit Dwellings.
• Category: Principal judgment
• Parties: Hinset Pty Limited (Applicant); Lane Cove Council (Respondent)
• Representation: Ms N Price; Maddocks Lawyers (Applicant); Mr A Seton; Marsdens Law Group (Respondent)
• File Number(s): 10465 of 2011

Judgment

1 Judgment in the substantive matter was delivered on 23 August 2011, Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 1248. The appeal related to the council's refusal of a development application for the construction of a residential flat building containing 32 dwellings (13 x 1 bedroom and 19 x 2 bedroom).

2 During the hearing of this matter, a number of the draft consent conditions were not agreed and those related primarily to waste management. Neither of the parties had experts available to address that issue so it was agreed that I determine the application and in the event that it was upheld, the parties be given opportunity to put on further evidence to allow determination of the outstanding conditions.

3 A mention was held on 31 August 2011 and aspects of the disputed conditions and the terms of the conditions required to reflect the determination made case were clarified. It was agreed that further evidence in relation to the site landscaping to ensure compliance with the requirements of an Asset Protection Zone as prescribed in the Rural Fire Service's publication Planning for Bushfire Protection 2006 (BFBP2006) and the council's draft conditions was required. In addition, evidence from council officers and the applicant's architect was required to address the draft conditions that related to the provision of waste collection and storage.

4 The parties had undertaken further discussions to reduce the number of conditions in dispute and there are now seven conditions that require determination. Of those, one relates to the requirement of the council to provide an area on the site for the parking of service vehicles (condition 41), one regarding site landscaping (condition 54), one to the issue of damage to council's roads (condition 77) and the remaining four (conditions 58, 59, 60 and 62) go to the requirements to provide garbage chutes, service rooms and access to the site for waste collection.

5 In addition, two conditions had been added to reflect the findings of my judgment that required works to be carried out in Mindarie Street.

6 Proposed condition 41 requires that, in addition to those visitor parking spaces that are provided within the upper basement level of the proposed building, an area is provided on the site that can be used to accommodate a furniture removalist's truck and the council's garbage collection vehicle when it is picking up waste bins. The council's position had changed from the initial requirement for vehicles to access the basement area. That would require the increase in floor to ceiling height and add, according to the applicant's evidence, considerable costs to the development.

7 The requirement to accommodate waste collection vehicles was discussed and Mr Wilson, the council's manager of environmental health, advised that a space slightly in excess of 6m in length was required. The parties considered the location and turning requirements for such a vehicle and agreed that to provide this on site the extent of the concreted area adjacent to the roller shutter door and the driveway width would have to be significantly increased and the area of landscaping considerably reduced. In addition, the dimensions of the proposed on-site stormwater detention tank may have to be altered. Mr Seton, for the council, agreed that this was appropriate and said the council had no issue with the area of landscaping that would remain. The council does not press the need for a longer vehicle that may be used by removalists to be parked on that bay, its desire is to avoid the need to have waste bins collected from the kerbside. Accordingly, subject to wording a condition that reflects the agreement reached in the hearing, condition 41 is resolved.

8 Condition 54 as drafted by the council required the amendment of the approved landscape plan to include provision for the planting of 12 local indigenous tree species that grow to a mature height of not less than 15m. The applicant is concerned about the need to satisfy other consent conditions, particularly that recommended by the Rural Fire Service, being condition 46, which requires the entire site to be managed as an inner protection area. The implications of these conditions were considered by the applicant's consultant Mr McMonnies, who has advised that provided adequate maintenance practices are put in place to ensure a 2 metre vertical clearance from the building is maintained, that either 15 x 8-12m trees or 4 x 15m trees would achieve the performance criteria of the Asset Protection Zone.

9 The council did not accept the species proposed by the applicant as they are not locally indigenous species and required at least 12 trees to screen the building from adjoining properties. It was agreed an appropriately worded condition that reflected the need to choose a species of tree that would achieve the 15m height, was locally indigenous, bushfire tolerant and addressed the canopy limitations imposed by BFBP2006 was satisfactory.

10 Proposed conditions 58 and 59 require the provision of garbage chutes, interim recyclable storage facilities and a dedicated service room on each floor of the building. Mr Wilson says that this is best practice, essential to the efficient management of waste and has been a requirement of the council since 2006. He cited two examples where such conditions had been imposed recently, one a Court approved development in the vicinity of, and the same precinct as the site comprising 58 dwellings and another, outside this precinct at St Leonards, comprising approximately 100 dwellings.

11 Mr Rush, architect for the applicant, in his report, Exhibit AA, said that the requirement to provide a chute was not a requirement of the staff during preparation of the plans and that the objectives of the council's development control plan (the DCP) have been met by the proposed scheme and as the size of the project, being 32 units over 4 levels is small, the type of waste management system, associated equipment and ventilation requirements are onerous, add additional cost to the development and are not consistent with the Department of Environment & Climate Change (DECCW) publication Better Practice Guide for Waste Management in Multi-Unit Dwellings (BPGWMMUD) . For residential flat buildings 4-7 storeys, that document provides three options considered to be better practice for garbage and recycling systems and services. The applicant submits that option 1 is appropriate however the council is seeking implementation of option 3.

12 Option 1 requires the use of bins within a communal storage area garbage and recycling. Resident have to carry all waste and recyclables from their unit direct to the communal storage area. It is agreed that the plans before the Court meet this option and also provide an area for bulk items. The areas of these rooms are said by the council to be too small however the applicant has agreed to increase the size of the bulk storeroom.

13 Option 3 requires the installation of a chute system for garbage, leading to a central garbage room at the bottom of the building. The cute can empty into either a bulk bin or an MGB carousel however there may also be a requirement for the chute to empty into a compactor. In addition, a room for the interim storage of recyclables is provided in an interim storage area (that also houses the garbage chute inlet hopper) on each floor. A caretaker takes recyclables from the interim storage area to a communal storage area where recyclables may be stored in either MGBs or bulk bins and is also responsible for moving bins from the compactor as they are filled and replacing those bins as required.

14 Option 1 is only considered viable by DECCW in blocks with a smaller number of units which range in height from 4-7 storeys.

15 The applicant argues that the development is a small development only containing 32 dwellings and those dwellings are one and two bedroom units. Applying the council's anticipated occupancy rate derived from the conditions relating to payment of contributions pursuant to s94 of the Environmental Planning and Assessment Act 1979 (the Act), an additional 43.3 persons are expected to be housed on site. As there are currently three dwellings on the site, the likely maximum population would be in the vicinity of 50 persons. I do not consider this to be a large development, nor one that would demand the services of a caretaker. It is at the lower end of the number of storeys where the controls would apply, being four storeys where the controls apply to buildings ranging from 4-7 storeys, has a small number of dwellings and those dwellings are one and two bedroom dwellings so the occupancy rate would be low. I accept the applicant's argument that the design of the development meets the objectives of the DCP, the minimum collection and storage facilities required by the council's controls and the BPGWMMUD best practice guidelines for small developments. Accordingly, conditions 58 and 59 should be deleted.

16 In view of the agreement reached for the provision of the waste collection vehicle standing area, condition 62 is agreed subject to the deletion of the second bullet point.

17 The final condition in dispute is condition 77. It requires the applicant to nominate a person responsible for all heavy vehicle operations during demolition/construction and to submit a weekly log of all trucking movement. The condition is to be read in conjunction with conditions 93 and 94 which require the applicant to undertake a dilapidation survey and report of the road surface of Mindarie Street between Mowbray Road West and Kullah Parade and to lodge a bond to the council to cover the cost of any damage to that roadway resulting from the development. The applicant says this condition is onerous and should be deleted. The council says that it will assist in determining the proportion of payment in the event of any damage occurring.

18 I note from the evidence provided in the primary hearing that there may be a number of other similar developments under construction within the precinct at the time this development is being constructed and accordingly, I find the condition to be beneficial. I do not consider it to be onerous as it could be undertaken by the site foreman who would be aware of all deliveries to and from the site. For this reason, condition 77 should remain.

19 Conditions 107 and 108 have been drafted to reflect the findings of my judgment. Those conditions were required to provide for the payment of the costs of widening Mindarie Street to 8m in width should the council determine that it will introduce a scheme of widening to address access and particularly egress in a bushfire event.

20 The council is seeking to allow the funds paid by the applicant to be applied to any works within Mindarie Street or roads adjoining. I agree that it is likely that the works would be undertaken in stages and that is reflected in my judgment however I do not agree that the funds should be applied to works within roads such as Willandra Street, Merinda Street or Pinaroo Place as contemplated by the wording of the draft condition. I do however accept that it would be appropriate to commence any widening at the intersection of Mowbray Road West with either Mindarie Street or Kullah Parade and accordingly, condition 107 should be amended to restrict the application of funds to that portion of Kullah Parade and the length of Mindarie Street to Kullah Parade and Mowbray Road West.

21 Ultimately, the council will need to program the works to reflect development sequencing and if that does not occur, in a reasonable period, the condition provides for the funds to be returned to the applicant.

22 The findings described above allow finalisation of the application and the parties are required to submit final conditions that reflect those findings to the Court to allow making of Orders in Chambers.

Orders

23 The Orders of the Court are:

1. The appeal is upheld

2. Consent is granted to Development Application No. D266/10 for the demolition of three existing dwelling houses and the construction of a four storey residential flat building containing 32 dwellings with associated two level basement car parking for 53 cars, 4 motor cycles and 7 bicycles at Nos. 9-13 Mindarie Street, Lane Cove North

3. The exhibits, other than Exhibits 1, A. C, D and K are returned.

4. The parties are to file conditions that reflect the above finding by E Court in Word format by 4pm, 15 September 2011.

_______________________

Sue Morris

Commissioner of the Court

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Decision last updated: 16 September 2011