Boston Blyth Fleming Pty Limited v Pittwater Council

Land and Environment Court (NSW)|2010-05-21

The applicant is to consult with Sydney Water to establish whether there are any Section 73 Compliance Certificate requirements for this proposal, under the provisions of the Sydney Water Act, 1994. A copy of any Notice of Requirements letter which may be issued by Sydney Water, is to be provided to the Private Certifying Authority with the Construction Certificate application.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures.

Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:

Protection of site workers and the general public.

Asbestos handling and disposal where applicable.

Any disused service connections shall be capped off.

Council is to be given 48 hours written notice of the destination/s of any excavation or demolition material. The disposal of refuse is to be to an approved waste disposal depot.

Structural Engineering details relating to the development are to be submitted to the Accredited Certifier or Council prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

A contribution of $63 000 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Embellishment of Open Space, Bushland and Recreation in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

Where rates payable under Section 94 Contributions Plan No 2 are reviewed and varied, the applicant is to pay the contribution rate as specified in the plan as it exists at the time of contribution.

A contribution of $14 000 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

A contribution of $24 500 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Services Facilities in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

A contribution of $35 000 is to be made to Cashier Code SVSS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for providing improved Village Streetscapes in accordance with Section 94 Contributions Plan No.19. The Contributions Plan may be inspected at Pittwater Council, No1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

Where rates payable under Section 94 Contributions Plan No 19 are reviewed and varied, the applicant is to pay the contribution rate as specified in the plan as it exists at the time of contribution.

Certification from the Accredited Access Adviser that design details and specifications comply with the Accessibility Control, SEPP Housing for Seniors or People with a Disability, and the DA Access Report, must be submitted to the Accredited Certifier or Council with the Construction Certificate application.

Plans and details demonstrating that the commitments identified in the BASIX Certificate that apply to the construction certificate or complying development plans and specifications are fulfilled.

D. Matters to be satisfied prior to the commencement of works and maintained during the works:

Note: It is an offence to commence works prior to issue of a Construction Certificate.

All excavated material is to be removed from the site.

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

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

Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner.

Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site.

Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction.

Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.

The site is to be fully secured by a fence to all perimeters to the site to prevent unauthorised access both during the course of the works and after hours.

No works are to be carried out in Council's Road Reserve without the written approval of the Council.

A Road Opening Permit, issued by Council, must be obtained for any road openings, or excavation within Councils Road Reserve associated with the development on the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.

No skip bins or materials are to be stored on Councils Road Reserve.

A site fence and silt and sediment control fence is to be erected and maintained during the course of works along any street boundary and park/reserve boundary to the site.

A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: - o The builder's name, builder's telephone contact number both during work hours and after hours. o That no works are to be carried out in Council's Road Reserve without the written approval of the Council. o That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. o That no skip bins or materials are to be stored on Councils Road Reserve. o That the contact number for Pittwater Council for permits is 9970 1111.

All construction in the public road reserve must be undertaken by a Council authorised contractor.

A satisfactory construction traffic management plan (CTMP) prepared by a suitably qualified traffic consultant is required to be submitted to the Private Certifying Authority prior to the commencement of any site works. The plan is to detail: o Quantity of material to be transported o Proposed truck movements per day o Proposed hours of operation o Proposed traffic routes, noting that 3 tonne load limits apply to some roads within Pittwater
As there are existing trees to be retained within 5 metres of proposed development works, all recommendations as outlined in the supplied arborist report by Tree Wise Men Australia Pty Ltd dated October 2008 are required to be complied with before and throughout the development period, particularly with regard to the following: a. Works, erection/demolition of structures, excavation or changes to soil levels within 5 metres of existing trees are not permitted unless part of the development as approved, and the storage of spoil, building materials, soil or the driving and parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained is not permitted;

b. Where specified, tree guards are to be provided to all trees as indicated in the report, and are to be installed prior to the commencement of any work on the site. Tree guard materials and dimensions are specified in the arborist report;

c. All works within 5 metres of existing trees including demolition, excavation, civil works, fencing and the like must be carried out by hand and under the supervision of an experienced and suitably qualified arborist. In the event that major structural or feeder roots are encountered, the arborist is to advise the builder to carry out appropriate action to ensure the retention of the tree.

d. Signage is to be erected advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees.

e. Any changes or alterations made to the tree management recommendations as outlined by the arborist report due to the discovery of new structural roots or underground services during development works must be reported to the Principal Certifying Authority prior to works recommencing. 17. Prior to commencement of site works, the project manager is to submit evidence to the Principal Certifying Authority of a pre-order for the supply of the plant material shown on the approved landscape working drawings and specifications. 18. During site excavation, topsoil which is to be used in later landscape works is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained.

Protection fencing measures (including sedimentation fences) are to be installed in accordance with all approved plans including those specified in the Arborist Report and/or Ecological Sustainability Plan or Bushland Management Plan. Protection measures are to be maintained for the duration of works. Protection fencing that is no longer required is to be removed once all works are completed.

A stamped copy of the approved plans is to be kept on the site at all times, during construction.

Toilet facilities are to be provided in a location which will not detrimentally affect the amenity of any adjoining residents at or in the vicinity of the work site during the duration of the development.

Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work.

Demolition works must be carried out in compliance with WorkCovers Short Guide to Working with Asbestos Cement and Australian Standard AS 2601 1991 The Demolition of Structures.

The site must be provided with a sign containing the words DANGER ASBESTOS REMOVAL IN PROGRESS measuring not less than 400mm x 300mm and be erected in a prominent visible position on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site and disposed to a lawful waste disposal facility.

All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a lawful waste disposal facility. Upon completion of tipping operations the applicant must lodge to the Principal Certifying Authority, all receipts issued by the receiving tip as evidence of proper disposal.

E. Matters to be satisfied prior to the issue of Occupation Certificate:

Note: Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works. Note: It is an offence to occupy the building or part thereof to which this consent relates prior to the issue of an Occupation Certificate.

Prior to issue of the Occupation Certificate, Form 3 of the Geotechnical Risk Management Policy (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority.

A positive covenant/ restriction on the use of land is to be created prior to the issue of the Occupation Certificate where the recommendations of the approved Geotechnical Report requires on-going maintenance / inspections to ensure that the development achieves the acceptable level of risk criteria over the life of the development, the terms of which are to require the landowner to comply with the recommendations contained in that report.

A certificate by a Civil Engineer is to be provided to the Principal Certifying Authority stating that the proposed stormwater inlet structure has been constructed in accordance with the recommendations of the ACOR Consultants report prior to issue of an Occupation Certificate.

Certification is to be provided to Private Certifying Authority by a qualified experienced practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the on-site detention system has been completed in accordance with the engineering plans and specifications required under this consent.

A positive covenant is to be created on the land title of the development site to ensure the on going maintenance and performance of the on-site stormwater detention system. Proof of the creation of the positive covenant is to be provided to the Private Certifying Authority with the Occupation Certificate application. The terms of the positive covenant are to be in accordance with Councils standard wording as follows: 1. The proprietor of the burdened lot from time to time shall do all things necessary to maintain, repair and replace the outlet grates and pipes and structures of and incidental to the stormwater detention system within the land so burdened to the satisfaction of Pittwater Council and in this regard must comply with any written request of the Council within such reasonable time period as nominated in the said request.

Where the proprietor of the burdened lot fails to comply with any written request of Pittwater Council referred to in 1) above the proprietor shall meet all reasonable cost incurred by the Council in completing the works requested.

Full and free right for Pittwater Council and every person authorised by it to enter upon the burdened lot in order to inspect, maintain, cleanse, replace, repair any pipeline, grate, pit, other structure or alter surface levels to ensure the on-site detention system within the land so burdened functions as designed. 4. Such improvements, alterations or amplifications to the stormwater detention system on the land shall be made at anytime and as from time to time as Pittwater Council shall by notice in writing reasonably require. 5. Nothing shall be done upon the land or allowed to remain upon the land which: a) Alters the level of the land or b) Impedes or interferes with the normal flow of stormwater or other water through the stormwater and detention structures constructed on the land or which interferes with their proper operation.
Certification is to be provided to a Private Certifying Authority by an experienced Water Engineer who is NPER accredited by the Institute of Engineers, Australia that the stormwater treatment system has been completed in accordance with the engineering plans and specifications required under this consent.

Certification is to be provided to the Principal Certifying Authority by a qualified experienced practising Civil Engineer, with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the drainage/stormwater management system has been installed to the manufacturer's specification (where applicable) and completed in accordance with the engineering plans and specifications required under this consent.

A certificate submitted by a Chartered Professional Engineer confirming to the satisfaction of the Principal Certifying Authority that the works in the public road reserve comply with Council requirements is to be provided with the Occupation Certificate application.
Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted to the Principal Certifying Authority showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Council's written agreement that all restorations have been completed satisfactorily must be obtained prior to the issue of any Occupation Certificate.

Restoration of all damaged public infrastructure caused as a result of the development to Councils satisfaction. Councils written approval that all restorations have been completed satisfactorily must be obtained must be provided to the Private Certifying Authority with the Occupation Certificate application.

Evidence of a 12 month maintenance program is to be submitted to the Private Certifying Authority with the Occupation Certificate application for the maintenance of all landscaped areas as required under this consent. During this period the nominated contractor shall maintain all approved landscape areas inclusive of weeding, watering, mowing and replacement of failed plant material.

A landscape practical completion report is to be prepared by the consultant landscape architect/designer and submitted to the Principal Certifying Authority with the Occupation Certificate application. This report is to certify that all landscape works have been completed in accordance with the landscape working drawings and specifications.

Three (3) nest boxes (refer to Pittwater Council website for suggested models) are to be appropriately installed in trees not affected by development. This must be certified by a Bushland Management Consultant or Council as being complete and adequate.

An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent.

A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the Private Certifying Authority with the Occupation Certificate.

All sole occupancy units are to have approved hard-wired smoke alarms installed and maintained over the life of the development. All hard-wired smoke alarms are to be Australian Standard compliant and must be installed and certified by any appropriately qualified electrician prior to the issue of any Occupation Certificate.

Street numbers are to be affixed to the building prior to occupation.

Address street numbering can only be authorised by Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Councils Planning and Assessment Business Unit. You are advised to contact Australia Post regarding the required size and location of letterboxes.

A qualified acoustic engineer is to certify that the maximum noise level associated with the pool filter does not exceed 5dB(A) above ambient background level, when measured from any adjoining premises.

All external face brick walls are to be properly cleaned down following completion of the wall and prior to occupation.

A restriction on use of the land is to be created on the title of any new lots, the terms of which burden the said lots, benefit Council and restrict the occupancy of the lot to persons defined in State Environmental Planning Policy (Housing For Seniors or People with a Disability) as to "Senior people" or "people with a disability" or people who live with older people or people with a disability. All matters relating to this restriction on use of the land are to be finalised prior to release of the Occupation Certificate.

Any lease or tenancy or agreement prepared for a residence within this development is to contain terms which prohibit occupation of the residence by persons other than those specified in State Environmental Planning Policy (Housing for Seniors or People with a Disability) as senior or disabled persons together with any person who live with aged or disabled person(s). Further the "by laws" of any body corporate created through strata subdivision of the development are to contain terms which prohibit the use of any strata unit other than by persons specified in State Environmental Planning Policy (Housing for Seniors or People with a Disability) as senior or disabled together with any bona fide carer(s).

An Accredited Access consultant is to certify that the development has complied with the construction certificate details and the design details and technical specifications relevant to recommendations in the approved Access Assessment Report, and in accordance with all relevant accessibility provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability).

Certification is to be provided that the commitments identified in the BASIX Certificate have been fulfilled.

Certification is to be provided by an appropriately qualified acoustic engineer that the noise generated by traffic movements on the northern driveway meet the requirements of the Department of Environment and Climate Change Industrial Noise Policy in relation to adjoining residential properties.

F. Matters to be satisfied prior to the issue of Subdivision Certificate:

Appropriate Rights of Way and Rights of Carriageway are to be created over the common driveway burdening and benefiting the proposed lots, to provide for suitable legal pedestrian access to the dwellings and appropriate vehicular access and manoeuvring to the parking areas on both lots. These can be created by the Subdivision Plan and an accompany 88B Instrument.
The 88B instrument is to include a provision on the title of the consolidated lot (2129 Pittwater Road) which requires the body corporate of the development to employ a caretaker/business to specifically transport the waste bins to the street front for the development on waste collection days and then return them to the respective buildings upon the waste being collected every week of the year.

The applicant is to lodge an application for a Subdivision Certificate with Council or an accredited certifier. The Subdivision Certificate is to be obtained prior to lodgement of the plans with the Land Titles Office. Note: In the case of Strata Subdivision Plans the Subdivision Certificate may also be issued by an accredited certifier.

A Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act 1994 is to be provided to the Principal Certifying Authority with the Subdivision Certificate application.

Lot 51 DP 709248, Lot 52 DP 709248, and Lot 53 DP 709248 are to be consolidated into one lot. This can be achieved through registration of the Plan of Subdivision.

The following documents and payments are to be submitted to Council in a single package to ensure the efficient release of the Subdivision Certificate:- (i) Evidence of Payment of the Section 94 Contribution.

(ii) A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994.

(iii) Copies of the Subdivision Plans (original plus 6 copies).

(iv) The Private Certifying Authority Compliance Certificate. Each component of the works as outlined above are to be certified as being carried out in accordance with the relevant plans and documentation by suitably qualified professional persons as outlined in this development consent. In particular, the construction of the Water Management System is to be supervised and certified by person(s) with appropriate experience and expertise in Environmental Science, Hydrology and Hydraulics, and must be NPER registered members of the Institution of Engineers (Australia). 11. All works associated with the water management system required under the terms of this consent are to be completed prior to the issue of the Subdivision Certificate.

Certification is to be provided to the Principal Certifying Authority with the Subdivision Certificate application, by an appropriately qualified professional, that works associated with the water management system have been carried out and completed in accordance with the Water Management Report.

      R Hussey
      Commissioner of the Court
      ljr

G. Advice:

Electrical insect killing light devices should not be used outside and not installed anywhere that they can attract and kill micro-bats.

Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation.

The applicant is also advised to contact the various supply and utility authorities, ie Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.

It is the Project Managers responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with the Principal Certifying Authority. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent the Principal Certifying Authority issuing an Occupation Certificate.

In accordance with Section 95(2) of the Act, this consent will lapse if the development, the subject of this consent, is not commenced within 2 years after the date from which this consent operates.

NOTE: Council may be prepared to consider an extension of this Consent period for a further 12 months, however, the request for extension would have to be received during the initial 2 year period.

To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to the web site at www.sydneywater.com.au then see Building Developing and Plumbing then Quick Check, or telephone 13 20 92.

You are reminded of your obligations under the objectives of the Disability Discrimination Act (DDA) 1992.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Boston Blyth Fleming Pty Limited v Pittwater Council [2010] NSWLEC 1203

CASES CITED: Deaton v Pittwater Council [2008] NSWLEC 1370 Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Parties

Cases Cited (3)