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A developer has successfully challenged a condition of consent which restricted the hours during which it could carry out construction works on Saturdays. The condition imposed by the council that the developer considered to be problematic limited construction work to the hours between 8 a.m. and 12 noon. As a result of an appeal against the condition that was taken in the Land and Environment Court, the hours of permissible work were enlarged to extend from 8:00 a.m. until 4 p.m. The Court's decision allowing the increase in working hours, Landmark Group Pty Limited v Lane Cove Council (2014) NSWLEC 1187, can be found at the following link: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174004.
The background of the case was that in March 2014, the Council had adopted a resolution which prohibited construction work on Saturdays to between 8 a.m. and noon, and thereafter, all consents for residential flat buildings in a particular district of the Council's local government area had included this limitation. According to the Court's judgement, the Council did not provide for public consultation before it passed the resolution. The area where the restriction was applied was one that had been "up-zoned" to allow buildings of greater density, and as a result, at the time of the appeal the district was composed of single family dwellings and a number of large apartment buildings under construction. The Council took the view that the restriction was necessary to give local residents a "respite" from the noise of construction works on Saturday afternoons, and thus to protect amenity.
The developer that appealed against the restriction on Saturday hours argued that it was "uneconomic" because the practical result of the restriction was that the developer was required to pay contractors for a full day's work on Saturdays when their employees would actually work only half a day. The developer also asserted that many contractors would simply not turn up for a half day's work on Saturdays, and that if they did, they would bring only a skeleton staff, so that construction would be progressed very slowly if at all.
The particular state of the building, and the nature of the works that the developer proposed to do during the expanded hours, were pivotal to the outcome of the appeal. At the time that the condition restricting the hours of work was brought, the construction had already progressed to a point where the building was "a shell with walls". The developer was prepared to accept a limitation on the building works to be allowed to relatively "low impact" work such as tiling, partitioning, gyp rocking, carpeting, and the like, and to refrain from heavier, noisier works such as excavation, haulage truck movement, rock picking, sawing, jack hammering and pile driving. The developer was also prepared to carry out continuous acoustical monitoring, and to appoint an on site manager to ensure that controls on the level of noise emitted by the construction works would be followed.
The Court (per Commissioner Dixon) found that the Council resolution that had led to the uniform imposition of a restriction of working hours on all consents for residential flat buildings was only entitled to limited weight, because it had been enacted without allowing for consultation from the "developer community". Commissioner Dixon took the view that she should review the application for modification of the condition restricting working hours on its individual merits. In the event, she accepted the evidence of the acoustical expert who had been retained by the developer that the proposed limited construction works would not, in the particular circumstances, result in an unreasonable noise impact on the surrounding community. Accordingly, the Court found that it was acceptable to grant an enlargement of the hours during which the light construction work could be carried out until 4 p.m. in the afternoons on Saturdays.
The result in this case demonstrates that it is possible for a developer to obtain an increase in the hours during which construction works may take place on Saturdays. However, it appears from the decision that the prospects for obtaining such an expansion of working hours will be governed by the specific factual background of each case and that it will be easier to secure longer working hours for "light" construction works that have lesser noise and amenity impacts. There is also a lesson that conditions of consent that are adopted pursuant to a council resolution that has been passed without public consultation will be susceptible to challenge.
A development application that proposes the demolition of a historic building that is contributory to a heritage conservation area will not have an easy path to approval in the Land and Environment Court. The high hurdle that such development applications will face was illustrated again in a recent decision issued by Commissioner Tuor, Brookfiled Design Pty Ltd v Hornsby Shire Council and Samuels v Hornsby Shire Council, (2014) NSWLEC 1191. Commissioner Tuor's judgement in the case can be found at the following link: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173870
The application at issue in the case sought approval for the demolition of an "interwar" bungalow that had originally been built in 1936. The house is located in the Beecroft-Cheltenham Heritage Conservation Area of Hornsby council's local government area. The Character Statement for the area that forms part of the Council's Local Environmental Plan included "Prescriptive Measures" which specified that buildings from the interwar period should be retained, and that demolition should be considered only where it is "not reasonable to alter and extend to meet contemporary amenity and living standards". Furthermore, the Council's Development Control Plan includes provisions which state that demolition of buildings that are characteristic of a heritage conservation area should be avoided when they are intact or easily capable of having characteristic details reinstated.
Alterations had been carried out to the house that was the subject of the demolition proposal, including the addition of a first floor level with gabled dormers and a rear extension. Competing expert opinion was offered to the Court by experts for the applicant and the Council concerning whether the building remained an "intact" example of an interwar dwelling.
Commissioner Tuor ultimately accepted the evidence of the Council's heritage expert. She found that although changes had been made to the roof of the building, the majority of the front of the house was still easily recognisable as an interwar building.
Additional factors were identified by Commissioner Tuor as supporting her conclusion that there was not sufficient justification to allow demolition of the house. These included the fact that the house was in good condition, was structurally sound and was capable of providing a level of accommodation to meet contemporary requirements. A further reason for dismissal of the appeal was the absence of evidence that alternative options for development on the site which did not involve demolition had been considered (for example the placement of a proposed new house to the rear of the existing interwar building).
It is suggested that the considerations which led the Court to refuse approval for demolition in this case will have general application in other similar cases. Thus, applicants who are seeking to replace buildings in heritage conservation areas with modern structures are likely to face an uphill battle, and should exercise caution before investing the time and expense of pursuing such proposals.
It is often the case that the most difficult obstacle standing in the path of approval of a proposal for a boarding house that is made under the "Affordable Rental Housing SEPP" is the requirement under clause 30A of the SEPP that the boarding house development will be "compatible with the character of the area".
However, a recent judgement by Senior Commissioner Moore, Revelop Projects Pty Limited v Parramatta City Council, (2014) NSWLEC 1167, illustrates that even where the proposal satisfies the
"compatibility test:", a development application is not necessarily "home free". A failure to comply with design requirements in the relevant council's Development Control Plan can be a separate and independent grounds for rejection of the development application.
The proposal that was at issue in the Revelop Projects case sought approval for the construction of a boarding house in the Talopea district of Parramatta Council's local government area. Commissioner Moore noted in his judgement that the applicable planning controls envisaged that the future character of the area would have greater density than at present, when it consists predominantly of single storey, single residence buildings. The Commissioner observed that the Council had recently granted approval for a residential flat building on the adjoining property. Commissioner Moore also took note of the fact that properties opposite the site had height control limits of 15 and 20 metres. Apparently due to the permissible height of future development in the area, along with the fact that the Council's Local Environmental Plan provided that boarding houses are a permissible land use in the high density residential zone where the site is located, Senior Commissioner Moore (applying the Court's planning principle in Project Venture Developments v Pittwater Council (2005) NSWLEC 191) determined that the proposal would be compatible with the future character of the area.
Unfortunately for the applicant, Senior Commissioner Moore went beyond the "character test:" and examined the particulars of the design of the proposal. This exercise led the Senior Commissioner to identify two design issues which he considered to be insurmountable.
The first of these issues arose because the proposed boarding house was on a corner site. The Senior Commissioner took note of diagrams in the Council's DCP which indicated that buildings placed on corner sites should have a "curvilinear and articulated presentation to a corner" that would provide a "soft and not aggressive" definition of the corner.. In contrast the Senior Commissioner determined that the proposed development (depicted above) would have a "bold and assertive" presentation to the corner. The Senior Commissioner decided that this treatment was so out of character with what he considered to be envisaged by the Development Control Plan that it warranted refusal of the development.
The second issue that proved fatal to the proposal was the failure of the design to provide for communal rooms on each level of the boarding house. Although the Affordable Rental Housing SEPP only requires that there be one communal room for a boarding house with 5 rooms or more, Senior Commissioner Moore determined that this is a minimum requirement. Accordingly, the Senior Commissioner found that Parramatta Council's DCP, which requires a communal room on each floor, was not in conflict with the Affordable Housing SEPP.
Notwithstanding the fact that there was evidence before the Court that due to the high level of internal amenity that would be provided in each of the rooms of the proposed boarding house it was not necessary for the building to have a communal room on each floor, Senior Commissioner Moore reached the view that it was not appropriate in the circumstances of the case to depart from the requirement that there be a communal room on every floor. The Senior Commissioner found that this was again reason enough to reject the proposal.
The result in this case providers a cautionary lesson to developers who would seek to rely on the Affordable Rental Housing SEPP: not only is it essential that the design be configured to ensure that the proposal meets the test of compatibility with the character of the surrounding area, but it is equally important that the design requirements of the applicable Development Control Plan also be adhered to.
The Court's decision in the case can be found at: http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=173569
