Carroll v Manly Council

Land and Environment Court (NSW)|2008-05-28

CITATION : Carroll v Manly Council [2009] NSWLEC 1205

APPLICANT Noel Carroll PARTIES : RESPONDENT Manly Council

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to a residential dwelling house to create two dwellings density and floor space ratio

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr M Staunton (barrister) SOLICITOR Sattler & Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms C Schofield (solicitor) SOLICITOR Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11247 of 2008 Noel Carroll v Manly Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application (216/07) for alterations and additions to a residential dwelling house to create two dwellings at 88 Bower Street, Manly (the site).

2 Council contends that the proposal is an overdevelopment of the site due to the excessive density and floor space and that the proposal is not in the public interest because of the departures from the planning controls. The site and its locality 3 The site is located on the northern side of Bower Street. It is irregular in shape with an area of 679.4sqm, a 26.715m frontage to Bower Street and a 14.275 frontage to the Marine Parade pedestrian walkway along the ocean. There is also an area of about 56sqm between the site's northern boundary and the pedestrian walkway which is held under licence from the Department of Lands.

4 The site is developed with a part two/part three storey brick dwelling . An elevated driveway provides access to two onsite parking spaces. There is a large Moreton Bay Fig and a number of palm trees on the site near Bower Street. The site falls from Bower Street towards Marine Parade.

5 The locality is a residential area with a mix of detached houses to the east and residential flat buildings to the west. The topography of the area rises to the east with the adjoining two storey dwelling (86 Bower Street) being elevated above the site. Planning controls 6 The site is within Zone 2 Residential under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent. Clause 10(3) of LEP 1988 requires the consent authority to be satisfied that the proposal is consistent with the objectives of the zone. Council contends that the proposal does not meet the following objectives of the Residential zone:

…….. (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality, (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, …….. (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment, and ……… 7 The site is within a Foreshore Scenic Protection Area. Clause 17 of LEP 1988 requires that the development not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. Council did not raise this as an issue.

8 Manly Development Control Plan for the Residential Zone 2007 (the DCP) is relevant. The site is located within density sub-zone 5. Clause 3.2.2 of the DCP permits a maximum density of one dwelling/500 sqm of site area in sub-zone 5. Clause 3.4.2(a) of the DCP permits a maximum floor space ratio (FSR) of 0.5:1. The proposal exceeds both these numerical controls.

9 The existing dwelling and the proposed development do not comply with other numerical controls in the DCP but council did not press these as an issue. The evidence 10 The Court visited the site. Statements of Evidence and a Joint Report of Mr S Layman, for the council and Mr G Boston and Mr G Coppin, for the applicant were tendered, but the experts were not required for cross-examination.

11 No objectors gave evidence on site but their written submissions were tendered. The Owners Corporation and individual owners of the adjoining property (92 Bower Street) raised concerns particularly about privacy impacts from the proposal. The experts did not support these concerns but suggested privacy screens around the parking area. The proposal also includes privacy screens on some windows and the balcony.

Excessive density 12 Mr Layman stated that different residential zones generally distinguish different density of residential development. In Manly there is only one residential zone but the density sub-zones in the DCP provide a mechanism to delineate the different character of residential areas. He considered the variation to the density control in cl 3.2.2 of the DCP would in effect be changing the zone. In his opinion, this would set a precedent and undermine the planning regime for residential density in Manly.

13 Mr Layman considered the proposal did not satisfy the objectives of the Residential zone in LEP 1988 or the density control in the DCP. In his opinion, the existing high density development in the locality did not reflect the desired future character of the area sought by the planning controls.

14 Mr Boston noted that multi-unit development is permissible throughout the Residential zone regardless of the density sub-zone. While the proposal does not comply with the numerical control in cl 3.2.2 for density sub-zone 5, in Mr Boston's opinion, it met the objectives of the control. He stated that the site is located near the boundary of density sub-zone 3 which permits one dwelling/250sqm of site area. Adjoining development between the site and the sub-zone boundary (92 and 94 Bower Street and 5 Marine Parade) are multi-unit dwellings which exceed the density control for sub-zone 5. The proposal retains a single dwelling presentation, does not result in adverse residential amenity impacts and maintains the character of the locality.

15 Part 3 of the DCP requires that variation from numerical controls will not only need to meet the objectives of the control, but demonstrate that a more desirable outcome is achieved. Mr Boston considered that a more desirable outcome is achieved:

given that the variation to the dwelling density standard will provide for adaptive reuse of the existing dwelling and increase the availability and variety of dwellings in this locality without unacceptable impact on the natural environment, views, privacy, solar access or visual amenity.

The proposed development exhibits exceptional design quality providing a built form outcome which presents as a single dwelling house when viewed from the adjacent private and public domains. To that extent, the existing character of development on this site and how it relates to its context, will not be materially altered as a consequence of the increased dwelling density proposed.

Having regard to the objectives contained in LEP 1998, the DCP and those pertaining to clause 3.2 of the DCP and the particular site and built form circumstances identified I have formed the opinion that the development will not undermine the integrity and intent of the density Sub-zone 5, will not diminish the quality of the residential environment and will not provide for the inappropriate or unsuitable development of the site…

Findings 16 The parties agreed that the DCP must be the focal point for the assessment of the application and that real, proper and genuine consideration must be given to the DCP controls, but that the controls are discretionary.

17 Mr Staunton, for the applicant, submits "that in the exercise of discretion, the consent authority will have regard to whether the objectives of the control are achieved, notwithstanding the non-compliance with the numerical controls".

18 The proposal provides two dwellings on the site with an area of 679 sqm, which exceeds the numerical control in cl 3.2.2 of the DCP by some 32%. Ms Schofield, for the council, submits that this variation is beyond the flexibility that should be applied to the application of the DCP.

19 The objectives of the residential density control in cl 3.2 of the DCP are relevantly:

(a) to regulate the number of dwellings in specific areas, (b) to promote a variety of dwelling types and residential environments in the LGA, and (c) to assist in maintaining the character of the locality. ….. 20 I accept Mr Boston's evidence that the proposal satisfies the objectives of the density control in cl 3.2. While the proposal provides two dwellings on the site where there is currently one, there is no appreciable difference to the scale and form of the development or the area of open space. The perception of density of the development will be no different to its current appearance.

21 The proposal is located at the boundary of two density sub-zones and forms a transition between the high density sub-zone of residential flat buildings to the west and the lower density sub-zone of single dwellings to the east. The proposal will add to the variety of dwelling types without changing the residential character of the locality. It will retain a similar form and scale to the other existing single dwellings while providing two dwellings on the site. It therefore meets objectives (a), (b) and (c) of cl 3.2 of the DCP.

22 I also accept Mr Boston's evidence that a more desirable outcome is achieved and that the proposal meets the requirements of Part 3 of the DCP. I do not accept Mr Layman's evidence that the proposal will affect a rezoning of the land. Multi-unit development is permissible in all density sub-zones and the proposal meets the objectives of the Residential zone under LEP 1988. It satisfies the objectives of the DCP density control and therefore is consistent with the intended future of the residential area and meets objective (b) of the Residential zone in LEP 1988. As previously stated, it provides a different housing type while maintaining the character of the area and therefore meets objective (c) of the Residential zone in LEP 1988.

23 The proposal does not degrade the amenity of surrounding residents or the existing quality of the environment and therefore meets objective (d) of the Residential zone in LEP 1988.

24 The proposal will provide alterations and additions to an existing dwelling and is consistent with objective (h) of the Residential zone in LEP 1988.

Floor Space Ratio 25 The proposal exceeds the FSR control in cl 3.4 of the DCP. The control will permit 305sqm of gross floor area. The existing dwelling has 350sqm and the proposal 379sqm. The floor space of the proposal therefore provides an additional 29sqm above the gross floor area of the existing dwelling.

26 Mr Layman accepted that strict compliance with the FSR control is not necessary given the floor space of the existing dwelling. He further accepts that the proposal is not inconsistent with the existing context, but, in his opinion, it is inconsistent with the desired future character of the sub-zone.

27 Mr Boston considered that the bulk of the existing and proposed development was appropriate within the context of the site and did not result in adverse amenity impacts. He stated that the proposal met the objectives of the standard.

28 Mr Coppin's evidence is that the additional 29sqm of floor space would not add to the perception of the bulk of the building beyond that which currently exists.

Findings 29 The objectives of the FSR control in cl 3.4 of the DCP include:

(a) to assist in controlling the bulk of the buildings, and ….. (c) to ensure the scale of development is consistent with the existing and desired character of the residential area. 30 I accept Mr Boston's evidence that the proposal meets these objectives. The bulk of the existing building is acceptable and the proposal will not add to this bulk in an appreciable manner. It therefore meets objective (a) of cl 3.4 of the DCP.

31 The scale of the proposal is less than the adjoining single dwelling house to the east and is similar to that of the recent residential flat building to the west. The proposal is compatible with the existing character of the area. I do not accept Mr Layman's evidence that the desired character of the area within the planning controls would be materially different to the character that currently exists within the context of the existing site such that the scale of the development would be inconsistent. The proposal therefore meets objective (c) of cl 3.4 of the DCP.

Overdevelopment 32 Council contends that due to the unsatisfactory density and FSR, the proposal is an overdevelopment of the site. I have not accepted that the density and FSR are unacceptable and it therefore it follows that the proposal is not an overdevelopment of the site.

Public interest 33 Council contends that approval of the proposal would undermine the planning regime in LEP 1988 and the DCP and would therefore not be in the public interest. The proposal has been assessed against the relevant planning controls and I am satisfied that while the proposal does not comply with the numerical density and FSR controls, it meets the objectives of these controls, the objectives of the DCP and the Residential zone objectives in LEP 1988. It therefore does not offend the public interest.

Precedent 34 Council is concerned that the proposal will set a precedent for approval of other similar applications. Mr Staunton referred to Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. He submits that:

precedent can be a relevant consideration in planning appeals however two matters need to be present. The first is that the development must be likely to lead to others of a similar character and the second is that the totality would prove to be objectionable. 35 I do not accept that the proposal will set a precedent for other developments. The site is within a specific planning framework at the edge of a density sub-zone within a context of residential flat buildings and houses that are of a similar or larger scale to the proposal. The site is also in a particular topographical location with a clear character.

36 The proposal, although for two dwellings where there is currently one, will appear of a similar scale and bulk to the existing dwelling. The proposal provides open space for each dwelling and the additional parking is provided in a manner where it does not impact on the streetscape. In addition, the experts agree that the proposal does not result in adverse amenity impacts on adjoining properties.

37 The merits of the proposal are therefore acceptable within the context of the planning controls. The merits of any other similar proposal would also need to be addressed within the context of the planning controls. For these reasons the proposal will not set a precedent.

Conditions 38 The conditions are agreed between the parties except for condition 70 which proposes a two year consent. This is a standard condition imposed by the council on the basis that the planning regime may change. The applicant seeks a five year consent. I accept Mr Staunton's submission that a five year consent is appropriate given the potential time that may be involved to activate the consent. The proposal is acceptable within the context of the current controls. There is no evidence that the planning controls would change within the foreseeable future to such an extent as to render the proposal unacceptable. Orders 39 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (216/07) for alterations and additions to a residential dwelling house to create two (2) dwellings at 88 Bower Street, Manly, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, B and D may be returned.

      Annelise Tuor
      Commissioner of the Court

Annexure 'A' Conditions of Consent Carroll v Manly Council 88 Bower Street, Manly

1 This approval relates to Drawings/Plan Nos. DA 01b, DA 02b, DA 03b, 04b, 05b, 06b, 07b, 08b, 09b and CO01 prepared by Wolski Lycenko Brecknock Architects, all dated 25 March 2009 and received by Council on 15 April 2009.

2 The depth of the proposed pond is not to exceed 300mm unless made child safe to the satisfaction of Council/Accredited Certifier.

3 All works areas are to be fenced to prevent Bandicoots from entering construction zones. Details of fencing are to be provided to Council/Accredited Certifier prior to the issue of Construction Certificate.

4 All machinery and construction material stockpiles are to be inspected daily prior to operation commencing to ensure that no bandicoot are sheltering.

5 The construction of a vehicular footpath crossing is required. The design and construction shall be in accordance with Council's Policy. All works shall be carried our prior to the issue of Occupation Certificate.

6 The construction of a kerb layback is required. The design and construction shall be in accordance with Council's Policy. All works shall be carried our prior to the issue of Occupation Certificate.

7 The existing surplus vehicular crossing and/or kerb layback shall be removed and the kerb and nature strip reinstated prior to issue of the Occupation Certificate.

8 The driveway/access ramp grades, access and car parking facilities shall comply with the Australian Standard for Off-Street Parking AS2890.1-2004 or later editions.

9 A long section of the driveway shall be submitted with the Construction Certificate Application. The long section is to be drawn at a scale of 1:20 and shall include Relative Levels (RL) of the road centreline, kerb, road reserve, pavement within property and garage floor. The RLs shall include the existing levels and the designed levels.

10 No portion of the proposed building or works, including gates and doors during opening and closing operations are, to encroach upon any road reserve or other public land.

11 Pursuant to Section 97 of the Local Government Act, 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $15,000.00. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site. Note : Should Council property adjoining the site be defective eg, cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site .

12 Pedestrian access, including disabled and pram access, is to be maintained throughout the course of the construction as per Australian Standard AS 1742.3, "Part 3 - Traffic control devices for works on roads".

13 Separate application shall be made to Council's Infrastructure Division for approval to complete, to Council's standards and specifications, works on Council property. This shall include vehicular crossings, footpaths, drainage works, kerb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be made a minimum of twenty-eight (28) days prior to commencement of proposed works on Council's property. Applicant to notify Council at least 48 hrs before commencement of works to allow Council to supervise/inspect works.

14 Any adjustment to the public utility service is to be carried out in compliance with their standards and the cost is to be borne by the applicant.

15 Details of the builder's name and licence number contracted to undertake the works shall be provided to Council/Accredited Certifier prior to issue of the Construction Certificate.

16 Insurance must be undertaken with the contracted builder in accordance with the Home Building Act, 1997. Evidence of Insurance together with the contracted builders name and licence number must be submitted to Council /Accredited Certifier prior to issue of the Construction Certificate.

17 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 one toilet for every 20 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets.

18 Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer's details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.

19 No person shall use or occupy the building or alteration which is the subject of this approval without the prior issue of an Occupation Certificate.

20 A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm. Note: The sign is not required if the building on the site is to remain occupied during the course of the building works.

21 All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans with certification being submitted to the Principal Certifying Authority during construction from a registered surveyor certifying ground and finished ridge levels.

22 No portion of the proposed building is to encroach onto a Public Road or Reserve, except as may be permitted by the Local Government Act 1993.

23 Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.

24 Four (4) certified copies of the Structural Engineer's details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate.

25 Where any excavation extends below the level of the base of the footing of a building on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia.

26 The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licenced applicator prior to the fixing of any wall or floor tiles.

27 A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.

28 The implementation of adequate care during demolition/ excavation/ building/ construction to ensure that no damage is caused to any adjoining properties.

29 Prior to excavation applicants should contact the various utility providers to determine the position of any underground services.

30 An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.

31 Building work shall not progress beyond first floor level until such time as Registered Surveyor's details of levels are submitted to the Principal Certifying Authority. These levels shall confirm that the works are in accordance with the levels shown and approved in the development approval.

32 On completion of the building structure a Registered Surveyor's report is to be submitted to the Principal Certifying Authority confirming that the building has been completed in accordance with the levels as shown on the approved plan.

33 All external cladding and trim of the approved building shall be of a non reflective nature (with reflectivity index of maximum 20%). Details of such finishes shall be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate. This condition does not apply to windows unless those windows are tinted or have anti-glare film on them.

34 Roofwater and surface stormwater from paved areas from the development shall be collected and piped to the harbour foreshore in a manner approved by the Principal Certifying Authority. If the piped system runs across park reserves, approval by Council's relevant officer shall be obtained. The stormwater disposal system must have a stilling sump and flow dissipater provided at the property line.

35 A detailed stormwater management plan shall be prepared to fully comply with Council's "Specification for on-site Stormwater Management 2003" and shall be submitted with the Construction Certificate application. The stormwater management plan shall be prepared by an experienced Chartered Civil Engineer. Council/Accredited Certifier shall ensure that the design complies with the above said specification prior to the issue of a Construction Certificate.

36 A dilapidation report in regard to adjoining properties and Council land is to be submitted to Council with the Trust Fund Deposit prior to the issue of the Construction Certificate.

37 All demolition is to be carried out in accordance with AS2601-2001.

38 Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.

39 A Fire Safety Schedule specifying the fire safety measures (both current and proposed) that should be implemented in the building premises shall be submitted with the Construction Certificate application, in accordance with Part 9 Clause 168 of the Environmental Planning and Assessment Regulation 2000. Note: A Construction Certificate cannot be issued until a Fire Safety Schedule is received.

40 The building being erected in Type C construction for a Class 2 building in accordance with the Fire Resistance Provisions of the Building Code of Australia.

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

42 An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions.

43 No building materials, waste containers or skips may be stored on the road reserve or footpath without prior separate approval from Council, including payment of relevant fees.

44 All disturbed surfaces on the land resulting from the building works authorised by this approval shall be revegetated and stabilised so as to prevent any erosion either on or adjacent to the land.

45 The felling, lopping, topping, ringbarking, wilful destruction or removal of any tree or trees unless in conformity with this approval or subsequent approval is prohibited.

46 All lights used to illuminate the exterior of the buildings or site shall be positioned and/or fitted with cut off luminaries (baffles) so as to prevent the emission of direct light onto adjoining roadways and land.

47 Precautions shall be taken when working near trees to be retained including the following: - do not store harmful or bulk materials or spoil under or near trees - prevent damage to bark and root system - do not use mechanical methods to excavate within root zones - do not add or remove topsoil from under the drip line - do not compact ground under the drip line.

48 Details are to be provided of at least three (3) existing or proposed endemic trees for the site that are typically expected to reach a height at maturity of 10 metres. A list of appropriate endemic trees for the Manly area may be obtained at Council's Customer Service desk. Details of new planting are to include appropriate siting and pot size (minimum of 25 litres) in accordance with section 3.2 of the Residential Development Control Plan 2001. Details are to be submitted with the Construction Certificate to the satisfaction of the Council/Accredited Certifier.

49 A sediment/erosion control plan for the site shall be submitted for approval to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Implementation of the scheme shall be completed prior to commencement of any works on the site and maintained until completion of the development.

50 Any future structures to be erected on the site shall be the subject of a Development Application and Construction Certificate Application.

51 Should you appoint Council as the Principal Certifying Authority (PCA) to undertake inspections during the course of construction then the following inspection/certification are required: - Silt control fences - Footing inspection - trench and steel - Reinforced concrete slab x 4 - Retaining Wall steel - Framework inspection x 2 - Wet area moisture barrier - Drainage inspection - Driveway crossing/kerb layback - Landscaping inspection - Final inspection 52 The cost of these inspections by Council is $3,360.00 (being $240.00 per inspection inclusive of GST). Payment of the above amount is required prior to the first inspection. Inspection appointments can be made by contacting the Environmental Services Division on 9976 1573 or 9976 1587.

53 At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $100.00.

54 An Occupation Certificate is to be issued by the Principal Certifying Authority prior to occupation of the development.

55 A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area. Total contribution for this development of $48,145.65 the amount of the payment shall be in accordance with the Section 94 charges as at the date of the payment. The charges may vary at the time of payment in accordance with Council's Section 94 Contributions plan to effect changes in land values, construction costs and the Consumer Price Index. This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with Council's adopted Section 94 Contributions plan for residential development effective from July 2008 calculated for additional persons as follows: Traffic & Parking $568.08 Streetscape & Landscaping $2,540.68 Environmental Programs $3,794.00 Community Facilities $1,004.01 Open Space Embellishment $4,377.85 Open Space Acquisition $1,471.27 _______________________________________________ Total: $13,755.90 per person The calculations for DA 216/07 are as follows: 2 x 3.1 persons per allotment Current rate of contribution ( 2008-2009 ) is $13,755.90 per person Therefore the total amount is 2 x 3.1 x $13,755.90 = $85,286.58 Note : The Section 94 Contribution fees are adjusted on the 1st July each year and are based on the March CPI figures.

56 However, credit can be given for the existing dwelling on site (2.7 x 1 x $13,755.90 = $37,140.93). Therefore the required amount would be $85,286.58 - $37,140.93 = $48,145.65.

57 All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area.

58 Roof and framing including provision for tie downs, bracing and fixings are to be designed by a practising Structural Engineer. The Engineer is to specify appropriate wind category relating to the site terrain, house design and height of the structure, with details being submitted to the Principal Certifying Authority prior to the commencement of framework.

59 Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays. Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

60 The capacity and effectiveness of erosion and sediment control devices must be maintained to Council's satisfaction at all times.

61 A copy of the Soil and Water Management Plan must be kept on-site at all times and made available to Council officers on request.

62 Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted.

63 Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface.

64 Drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.

65 Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system.

66 Stormwater from roof areas shall be linked via a temporary downpipe to a Council approved stormwater disposal system immediately after completion of the roof area. Inspection of the building frame will not be made until this is completed to Council's satisfaction.

67 The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:

(i) siltation fencing; (ii) protection of the public stormwater system; and (iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

68 Details of the method of termite protection which will provide whole of building protection, inclusive of structural and non-structural elements, shall be submitted to the Council/Accredited Certifier prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard 3660.1 "Protection of Buildings from Subterranean Termites - New Buildings" and to Council's Code for the "Protection of Buildings Against Termite Attack".

69 Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack".

70 This approval shall expire if the development hereby permitted is not commenced within 5 years of the date hereof or any extension of such period which Council may allow in writing on an application made before such an expiry. 71 The landscaping plan shall be amended to be consistent with the architectural plans prior to the issue of a construction certificate and in particular tall (3m or higher) tree planting shall be contained within Lot 3 DP 8075 and shall maintain a view corridor along the common boundary with 92 Bower Street. 72 A lightweight timber battened privacy screen 1.5m high shall be provided along the full west (short) sides of car spaces 1 and 2 and shall extend along 50% of the north (long) side of car space 2. Details of the privacy screen are to be provided to Council/Accredited Certifier prior to the issue of Construction Certificate.

Annelise Tuor Commissioner of the Court ljr

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.

At a glance

Court

Decision date

Source

Judgment (121 paragraphs)

Parties

Cases Cited (1)

Cited By (1)