Curk v Newcastle City Council

Land and Environment Court (NSW)|2004-10-15|Before: Mr J

CITATION : Curk v Newcastle City Council [2004] NSWLEC 610 APPLICANT Anthony Curk PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10613 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Should the Newcastle Urban Strategy 1998 prevail - drainage - streetscape - overlooking - privacy - shadowing - density - height/bulk - use of a drainage easement - lack of important details on plans

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Lower Hunter Urban Housing Development Control Plan 1995 Newcastle Urban Strategy 1998 Newcastle Local Environmental Plan 2003 CASES CITED: Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 13/09/2004 and 11/10/2004 EX TEMPORE 10/15/2004 JUDGMENT DATE :

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10613 of 2004 Anthony Curk v Newcastle City Council

1 This was a Class 1 appeal, No.10613 of 2004 between Anthony Curk and Newcastle City Council in regard to the refusal of DA99/3077 on 16 April 2004. 2 The application was lodged in 1999 for three 2-bed and one 3-bed attached dwellings or townhouses at No.111 Michael Street, Jesmond. The proposal was on the corner of Michael and Shereline Avenue. The 3-bed townhouse faced Michael Street and had a two car garage with driveway approximately in the same position as the existing drive to the existing house on the land. The other three units fronted Shereline Avenue and each had its own driveway and single garage and a street front garden. 3 Service courtyards for each unit were along the western boundary that adjoined No.113 Michael Street. It was a two storey house above high foundation walls and had a large carport attached at the rear at ground level adjoining the subject property. Number 113 had sizeable trees along the back boundary and some trees on the side boundary adjoining the site. The high foundations were caused by the slope of the land down from Michael Street. 4 The topography of No.113 indicated it had once been a natural gully and the owner indicated that much effort and money had been spent in resolving the drainage problems of No.113. 5 The subject Lot No.111 also sloped down from Michael Street towards the south and also down from Shereline Avenue towards the west and No.113. At the rear of the subject lot was No.17 Shereline Avenue. It had a garage adjacent to the subject lot and the southwest corner of the subject lot adjoined its backyard. Most of No.17's backyard adjoined the rear boundary of No.113. 6 The subject land comprised two lots, Lot 2 DP29494 was the main area with Lot 3135 DP755247 being up at the Michael Street frontage. It had been part of the Michael Street road reserve, but apparently as there was no continuous strip of extra road reserve along the street, and the Council had sold it to the applicant. 7 The site was rectangular and oriented north-south with 15.545 m frontage to Michael Street and 47.475 m to Shereline Avenue with an area of about 732 m sq. There was very little vegetation except for grass. There was an easement for drainage along the western boundary of Lot 2. It was 1.83 m wide and had a council drain pipe in it. There was no easement in Lot 3135 but the pipe pre-existed that sale, and it angled across Lot 3135 from the western boundary towards the north-east corner where there was a grated inlet sump near the corner of Michael Street and Shereline that carried water downhill. 8 The evidence was that in time of high rainfall, water built up in a sag in Michael Street adjacent to the existing driveway of the subject site, and when the drain could not take it, there was surcharge across the driveway and along the western boundary. The owners of both No.113 and No.17 told the Court considerable volumes of water ran down that route then through the backyards of No.17 and its neighbours downhill. 9 The locality was a mixture of detached houses and flats. Both types of housing had various design styles of one and two storeys high, some with garages under. There was one 1960's or 1970's block of flats at the west end of Shereline Avenue that was three storey. A local primary school was about one block west of the site in Michael Street. There were two sets of townhouses on the high side of Michael Street near the site and some 1990's detached dual occupancy houses. 10 The issues in the case were:

Whether the proposed development will have an unacceptable impact on the character, streetscape and amenity of the locality.

Particulars 1.1 The combination of two storey development and density of the proposal is not in keeping with the local character or streetscape.

1.2 The proposed high front fences are not in keeping with the character of the area which typically has low fences or no fences at all. 2. Whether the proposed development will create unacceptable impacts on neighbouring property.

Particulars 2.1 The proposal will result in overshadowing and loss of sunlight to adjacent properties.

2.2 The proposal will result in loss of privacy due to the height of the proposed dwellings and number of windows. 3. Whether the density, bulk and scale of the proposed development is excessive having regard to the site constraints. Particulars 3.1 The extent of site works in combination with the design of the development and the topography of the site result in an overall density which is considered to be excessive.

3.2 The subject site is on the interface with a two density precincts and the density of the proposal is considered to be unacceptable having regard to the site constraints and neighbouring developments.

3.3 The proposed development will be considerably higher than the surrounding land, up to 2.5 m.

11 Issues 4 and 5 in regard to traffic safety and parking were deleted by the respondent during the hearing and issue 6 in regard to storm water and drainage problems were deleted by the respondent at the start of the hearing but re-raised by objectors. 12 The on-site hearing was attended for the respondent by: * Mr Maston barrister, * Miss R Webb solicitor, * Mr D Jaegar, Newcastle Council town planner, * Mr and Mrs J and F Lowe objectors of No. 113 Michael Street, * Mr C Brady urban planning and architectural heritage expert for the Newcastle Council and * Mrs Harris of No. 17 Shereline Street.

13 For the applicant was: - Mr Pickles barrister, - Mr J Griffiths solicitor, - Mr A Nelson town planning consultant and - Mr T Curk applicant.

14 A Court-appointed town planner Mr S O'Connor also gave evidence and had prepared a report with which the council partly disagreed. 15 There was also: · Miss A Kerr a planning student/observer and · Mr S Booker a planning law student/observer. 16 The proposal was in the Residential Zone 2(a) under the Newcastle Local Environmental Plan 2003 and the proposal was permissible with consent. 17 The hearing did not conclude on the first day due to the extent of evidence and a number of unanswered questions having arisen, namely 1) Was the shadow diagram drawn from true north or magnetic north and if incorrect how did it affect impacts,

The privacy hoods on the western windows to prevent overlooking into the backyard of No.113 were not capable of doing the job. What alternative would work?

There were no levels shown in the rear courtyards that were partly over the drainage easement on the west boundary. The courtyards had paved areas and garden areas. There were no details to satisfy the Court or the respondent how they would be built. There had to be no impedance of overland flow paths along the western boundary and there should be no retaining wall on the western boundary that would raise the ground level above natural ground level.

Floor reduced levels and ceiling reduced levels were not shown on the drawings that would ensure the height of the building would not exceed the assurances given orally by the applicant. Unit 1 was drawn with a 3.3 m ceiling height in part of the ground floor. Was that height needed or could the building be lowered?

A 1.5 m high existing fence on the west boundary had been built by the owner of No.113 who did not want it removed. What was the proposal in regard to it as the applicant stated a 1.8 m new fence would be built.

The clotheslines in the rear courtyards of the units were foldouts against the western fence with no screening lattice or vegetation between. The applicant said that the rear yard of No.113 could not be overlooked yet the stairs up into each unit were directly opposite the related clotheslines so a person on the upper landing and coming down the stairs would see directly into No.113's yard.

(a) The definite evidence of the neighbours was that in times of high rainfall a river of water ran down the west boundary of the site and through into the yards of No.17 and the houses further down the hill. The council wanted this flow to continue. Inspection of the site revealed that the driveway and footpath reserve near it at Michael Street was low and provided a route by which street storm water and surcharge from the street drainage sump passed through the site as overland flow. The applicant put that it should not have to accommodate the council's street storm water and it was the cause of the neighbours concerns about flooding their backyards. The back fence of No.113 had been washed away previously and had to be re-built. (b) The rainwater that might fall on the site and flow as surface water through the rear courtyards of the proposal would be very small in volume and cause little or no problems for the neighbours if not supplemented by street storm water surcharges. (c) Also it was noted the footpath reserve adjacent to Michael Street storm water sump sloped down into the subject lot and would direct more surcharge street water brought from areas uphill of Michael Street across the site. Prior to roads and sub-division construction, it was obvious these waters would have flowed through 113 Michael Street which had been a natural gully. (d) The subject site was now taking these surcharges that exceeded the capacity of the council pipe in the easement. Since the subject property was on a street corner there was the option to stop these overland flows from entering the site and direct them down Shereline Avenue into its council drains thus reducing the site and the neighbours problems. This needed investigation and time to report to the Court.

(a) The drainage plans for the proposal indicated roof water downpipes and collector underground storm water pipes were within the council's easement. These needed to be removed and placed elsewhere. (b) In any case, the drainage plans when compared to the survey levels of the site on the western side revealed that the collection pipes were below the proposed storm water detention tank on the Shereline Avenue frontage and the water could not flow uphill to it. The drainage plans were wrong in that regard. This needed investigation and a further report to the Court.

One draft condition required any building to be 1.5 m from the council's storm water pipe. The easement along the western boundary of the site was only 1.83 m wide and the pipe underground presumably in the middle of it. About two thirds of the length of that elevation would be within 1.5 m of the existing council pipe. The respondent was unable to advise the Court at that time if the draft condition meant whole parts of the west elevation had to be moved. 18 Such lack of important information might in other circumstances be determinative in an appeal. However in view of the development application to council being four years prior to this hearing, it was in both parties interests to adjourn so that the Court could be found the information and the parties consider it and the matter be concluded without further delay. Neither party objected to this course of action. On resumption of the hearing the Court was informed on the nine unanswered questions as follows. 19 In regard to Item 1 the shadow diagrams in updated drawings in Exhibit H had been drawn to true north and revealed a lesser impact than previously shown on both No.113 Michael Street and 17 Shereline Avenue. In mid winter at 9 am No.113 had shadow on about a third the width of its allotment but it was gone completely from No.113 by about 11 am. No.17 had shadow on its garage and a small portion of its rear yard at 9 am, by noon it was mostly on the garage only and by 3pm on its garage and a small part of its front yard. Neither impacts were significant and the solar access they retained more than met the requirements of the Lower Hunter Urban Housing Development Control Plan. 20 On Item 2 the applicant tendered Exhibits J and K showing a wind-out awning window for the ground floor western windows of Units 2, 3 and 4. The glass was to be Flemish or Waverley pattern obscured glass. The limited wind-out would permit occupants to see only into their own courtyard. The applicant said Exhibit K being additional external louvres for privacy were not needed and the Court agrees. The upstairs bedroom windows on the west elevation also need not to have obscured glass as they are rooms not normally used in daytime and at night would usually have curtains drawn. 21 It was noted that the yard fences erected by No.113 were only 1.5 m high which hardly gave privacy from neighbours at the present time, although it must be agreed the number of neighbours on the eastern side of No.113 would increase by three dwellings versus one at the present time. Any future dwellings would be closer than the existing house, but the courtyards adjacent No.113 were only service courtyards and would not normally have much activity. Such activity would be screened by a new 1.8 m high fence and screen vegetation as in Exhibit H, drawing 99125, revision 5. Acceptable suburban privacy and amenity would be retained for the neighbours. 22 On Item 3 some levels had been shown in the western courtyards in Exhibit H but only at the step down from the bottom concrete landing of the external stairs onto the paver brick sections of the courtyard. The levels shown limited the height of the step. The applicant relied on the west elevation that showed retention of the existing natural ground level along the western boundary. This meant a step down from the pavers into the garden bed beside the western boundary if the pavers were laid level, otherwise the pavers would need to slope quite markedly across the courtyards. The respondent was concerned the pavers and the garden beds and the garden edges proposed as log kerbs would interfere with the overland flow path of storm water along the easement. The respondent had provided conditions on fencing to require fences between courtyards to be mesh or wire to allow water to flow through and to have removable panels for access to maintain or re-build the pipe in the future, but there was only a general condition about maintaining the flow path. 23 After hearing submissions the Court concluded the removable fence panels were necessary for maintenance but the cross fences between courtyards could be lapped and capped paling or colour bond metal sheet provided they were suspended 150 mm above finished surface level of the courtyards to enable storm water to flow through. Also another condition was needed to require pavers to slope with the natural ground line within the courtyards and gardens and garden edges to be built flush with the natural ground so as not to impede storm water overland flow and so as not to channel the water into the garden bed along side the western boundary. 24 This emphasised the need to reduce overland flows as much as possible. The respondent put that the easement had been applied long ago when it was expected the site would only ever had a single house on it. The respondent thought the easement should be left totally clear of pavers and landscaping to facilitate total reconstruction of the underground pipe. The small courtyards were symptomatic of overdevelopment of the site in the respondent's opinion. 25 The applicant said re-building of the pipe may never be needed or so seldom that removal of the fencing, pavers and landscaping could be done at minimal cost to a contractor and re-installed once the job was done. 26 In regard to the rear courtyards being too small, the applicant said they were only service courtyards and did not need to be large. Each unit had its large recreational courtyard on either the Shereline Avenue or the Michael Street frontages. Those courtyards had direct access from living rooms via French doors. In regard to the French doors the Court noted that they were shown on the plans opening inwards which considerably restricted the space inside the living rooms. They should in fact open outwards. 27 The Court agreed with the applicant's submission on the latter aspect in regard to the size of the rear courtyard. 28 On Item 4 the applicant had added reduced levels to the updated drawings in Exhibit H so that the height of the proposal was definite. Each unit stepped down the hill along the Shereline Avenue frontage and floor and ceiling levels were given for each. The high ceiling in the ground floor of Unit 1 was shown in a new section drawing in Exhibit L. It showed the second storey was partly over the garage which needed a large beam to support the second story and give a clear span in the garage. The need to have headroom pushed up the floor level of the second storey and resulted in a 2.75 m high ceiling in the living room. The 3.3 m high ceiling occurred because the kitchen and dining room were stepped down the hill from the living room and the second storey was above all of them. As a result the 3.3 m ceiling could not be lowered. The respondent did not press any lowering as Unit 1, even at the ridge of its pitched roof, was lower than the roof of number 113 Michael Street immediately beside Unit 1. 29 In regard to Item 5 the survey in Exhibit G showed the fence that the owner of No.113 had built. It was actually on the subject site by 150 mm so his protestations that it should be retained could not pre-empt the applicant's right to put the new fence on the boundary and out of the drainage easement. The applicant and the respondent said that provided the addition of the new 1.8 m lapped and capped timber boundary fence inside the existing one was acceptable to the council engineers within their easement the existing fence need not be removed, but that could be worked out by the parties if a consent issued from the Court. 30 In regard to Item 6 the clotheslines in the rear courtyards were re-located so there would be no direct overlooking into No.113 backyard by persons coming down the steps from the units, but they were still against the boundary fence with no screening vegetation for the width of the line. 31 Whilst on the rear courtyard the respondent had put a draft condition that the garages be modified to allow two by 240 litre garbage bins in each, one for putrescible matter and the other for recycling matter. The applicant questioned that. The respondent said the applicant showed only one bin per unit and it was in the rear courtyards. The 2 x 240 litre bins required, if kept there, would have to be pulled up and down the rear steps. This was impractical and the bins would end up in the garages or the front courtyards. For streetscape amenity the garage location was preferable and the Court agreed with the respondent on this matter. 32 In regard to Item 7 the respondent pressed to allow street storm water surcharge to flow through the site. The respondent proffered clause 5.3 of the Lower Hunter Urban Housing Development Control Plan and the Storm Water Development Control Plan clause R4 citing the need to retain emergency spillways and/or overland flow paths. The applicant's engineer in Exhibit F had raised the ground level at the Michael Street boundary of the site and the crest of the driveway footpath crossing to exclude water when it ponded in the sag of the Michael Street roadway up to the 1:100 Year Storm Event. 33 In regard to the surcharge path across the footpath from the street storm water grate near the corner of Michael Street and Shereline Avenue, the applicant's engineer showed a berm in the front setback to divert the street water to the Unit 1 front courtyard storm water pit. The respondent asked if the design included the 1:100 Year Storm Event plus the factor of safety usually applied of the street grate being 50% blocked. The applicant's engineer advised the 50% was not included. The respondent's engineer was not happy with the diversion berm in the front courtyard of Unit 1 as the volume of street water surcharge could overtax the on-site storm water system and it could flood the garage of Unit 3. The Court sent the engineers to confer on that and to advise on the possibility of diverting all street drainage surcharge to Shereline Avenue which was in the same catchment as Michael Street. 34 The applicant tendered in Exhibit M a condition to exclude surcharges from street storm water and divert them to Shereline Avenue. The Court agrees with that course of action. The drainage easement on the site would still provide for the underground Council pipe and would provide for overland flow of onsite rainfall but should reduce the problems currently experienced by No.113 Michael Street and No.17 Shereline Avenue and others downstream. 35 The respondent said the draft condition needed to be deferred commencement. The applicant said it did not as it was self executing and the Court notes the Council engineer did not raise any substantial reason that it could or should not be done even when the additional load allowed for a 50% blockage of the pipe was included. The applicant said to make a deferred commencement would only extend the four years the applicant had spent trying to obtain an approval that could be built. 36 On Item 8 the applicant said the amended drainage plan in Exhibit F suspended the storm water pipe from the western downpipes under the floor slabs so it could get to the detention tank on the eastern boundary. The Court noted the drawing still showed the proposals collector pipes on the western side as an underground pipe and only the pipes crossing under the building from west to east were suspended. At the south west corner of the site a suspended pipe would be about 2 m above the underground pipe? How was the water to rise up to the suspended pipe. The respondent put a draft condition that the entire western side roof downpipes and collector pipes and the transfer pipes from west to the detention tank must be inside the footprint of the building except where they connect on the east side. The applicant accepted that. 37 The Court noted that the new drainage plan in Exhibit F showed floor levels in order to calculate that suspended transfer pipes could drain to the detention tank inlet pipes. The new architectural plans in Exhibit H also showed finished floor levels but they were lower to the ground than the drainage plan. The Court asked which was proposed and if the architectural floor levels applied would the storm water transfer pipes be lower than the drainage plan and still drain to the detention tank. The parties engineers conferred and the Court was advised the drainage plan finished floor levels had to apply. This meant Units 3 and 4 had to be raised about 150 mm. Whilst important for drainage reasons it would not substantially change the impacts of the other aspects of the proposal dealt with on the basis of the architectural plans and the Court saw no reason to do other than impose an appropriate condition. 38 The Court also noted the drainage plans showed the split in floor levels in the wrong place, in Units 2,3 and 4 between garages and living areas and that it needed to be adjusted to match the architectural plans in that respect. 39 On Item 9 the Court was shown the survey plan in Exhibit G which showed the drainage easement in Lot 2 but not in Lot 3135. The Court was then taken to Exhibit 10 a services location map which showed that from the boundary between Lot 2 and Lot 3135 the underground council storm water pipes splayed across the front of the site to the Michael Street storm water grate. The existing pipe was underneath the north-west corner of the proposed garage of Unit 1 and the Council could not agree to that. 40 The purpose of draft condition 3.24 in Exhibit 5 was to address that situation. It did not require any re-location of the west elevation of the proposal to maintain 1.5 m clearance from the pipe. The condition required that the pipe that splayed across the Michael Street frontage of the site be moved at no cost to Council so that the new pipe was 1.5 m from the north-west corner of the Unit 1 garage. That was reasonable. The Council also required an easement over Lot 3135 for this pipe. That also is reasonable.

41 Having heard evidence and submissions on the nine questions, the Court turns to the remaining issues namely streetscape, character of the locality versus character of the proposal and density of development. The consideration of these issues revolved around the Councils adoption in 1995 of the Lower Hunter Urban Housing Development Control Plan as a joint development control plan with Cessnock, Maitland and Port Stephens councils. It was still in force but Newcastle Council had done a later study that was extensively exhibited too and consulted with the community for comment and adopted as a policy in 1998. It was called the Newcastle Urban Strategy, a 25 year revitalisation plan for Newcastle. At the heart of this appeal was the question whether or not the strategy overrode the development control plan because on the aspects remaining at issue in this case, the two documents were inconsistent. The Development Control Plan says for such development the floor space ratio should be a maximum of 0.4:1. The proposal was about 0.59:1. The Urban Strategy required a 560 m sq site area for a design such as the proposal and the subject site is 730 m sq so on the Development Control Plan the proposal is well over the density allowed but in consideration of the strategy the proposal is well under the density required. 42 Part of the Urban Strategy is the important intention to concentrate future medium density development around existing centres. It specifies a boundary of about 600 m from the centres, in this case Jesmond Shopping Centre, a large sub-regional centre that serves an area including Newcastle University. The site is within the 600 m shown on the Urban Strategy map in Exhibit 4. It is the last lot in medium density shown in this precinct. The Council said the development should be more a transition back to detached dwellings such as those nearby. The applicant said it was sufficiently transitional and Mr O'Connor, the Court appointed expert said it was also satisfactory. The reasons were: * the stepping of the building down the hillside in Shereline Avenue together with * the breaking up of the form with the two storey sections of each unit being separated by the single storey sections between plus * the second storey being set in from the ground floor. There were small tiled roofs at the ground floor level to cover the overlaps and this reduced the visual height of the proposal as the roofs covered part of the second storey walls * the material and pitched roofs reflected the design of one and two storey houses nearby * each unit having its own front porch and garage with a separate street address and * the front picket fences to the Shereline Avenue front courtyards added to the lower residential scale * also in side street locations it was usual for there to be side street fencing, and this was seen elsewhere in the precinct so to that extent the proposal for picket fences in Shereline Avenue was not unacceptable or out of character with the locality * the lack of front fence in Michael Street and the detached house-like appearance of Unit 1 fitted in with No. 113 which adjoined 43 The other two storey townhouses across Michael Street from the site were part of the context into which the proposal fitted. The only suggestion Mr Brady and Mr Jaegar had to improve the fit of the proposal was to reduce the number of units and increase side setbacks so as to be like the side setbacks of those townhouses. 44 Mr O'Connor felt that it was not needed. The other townhouses were not corner lots. They had a wide setback on one side only because they had to have an on-site driveway the length of the block. On the other side the setback of those existing developments was the same as the proposal that is, around 2 m. The proposal had the front courtyards and the full width of Shereline Avenue as a visual setting and did not need more. 45 Mr Brady did not say any of the specific performance criteria on these issues in the Lower Hunter Urban Housing Development Control Plan were not met. 46 The Court's attention was directed to a recent case determined by the Chief Judge in Appeal 10428 of 2004, Stockland Developments Proprietary Limited v Manly 2004 NSW LEC 472. The Newcastle Urban Strategy does have the nature of a development control plan and was widely consulted in the public forum and has been consistently implemented since its adoption by a council in 1998. It clearly was meant to override the Lower Hunter Urban Housing Development Control Plan where there was an inconsistency between them. The density provisions and the identification of future medium density areas around major shopping centres was a clear inconsistency and apparently an implicit, if not a conscious decision, by the Council to depart from the Development Control Plan to that extent. 47 There being no environmental impacts of the proposal under the Statute or the Development Control Plan or the Strategy that are unacceptable, the Urban Strategy should prevail to the extent of the inconsistency with the Development Control Plan.

48 Therefore the orders of the Court are: 1. The appeal is upheld 2. Consent is granted to demolish an existing house and shed at No. 111 Michael Street, Jesmond, and erect four (4) townhouses as shown on drawings and documents in Exhibits F, H, J and L of this Hearing. The plans include drawings Nos.991215/1, /2, /4, /5 all Revision 5; Nos. 991215/3 Revision 6; No. 991215 sheet 1 of 1 Revision 5 and No. 000310/1 of 3 Revision 5, all by MJD Plans & Designs; drawing No. 1454-99 sheet 1 of 1 Revision D by CSG Engineers Pty Ltd; all drawings as amended by, and built in accordance with the conditions in Annexure "A" hereto. 3. The exhibits are returned to the parties except Exhibits 3, 5, 8, 10, F, G, H, J, L and M. ___________________ K G Hoffman Commissioner of the Court rjs

Annexure "A" Conditions of Development Consent Anthony Curk v Newcastle City Council 1 Conditions Restricting the Terms of Consent

1.1 The proposed development being carried out strictly in accordance with the details set out on the following amended plans submitted to the Land and Environment Court: a) Floor and Site Plan, Revision 5 (16/9/04) Sheet 1 of 5 DWG No. 991215 b) Elevations, Revision 5 (16/9/04) Sheet 2 of 5 DWG No. 991215 c) Sedimentation Plan, Revision 5 (16/9/04) Sheet 4 of 5 DWG No. 991215 d) Site Analysis Plan, Revision 5 (16/9/04) Sheet 5 of 5 DWG No. 991215 e) Section - Units 1 to 4 (typical) Looking and Lost (sic) of Privacy / Elevation Shereline Avenue, Revision 5 (16/9/04) Sheet 1 of 1 DWG No. 991215 f) Shadow Diagram: 21 June, Revision 5 (16/9/04) Sheet 1 of 3 DWG No. 000310 g) Stormwater Plan & Details, Revision B, 20 September 04, drg no. 1454-99, Sheet 1 of 1. (Served 20 September 2004). h) Landscaping Plan, Revision 6 (16/9/04) Sheet 3 of 5 DWG No. 991215 i) Section (Typical) Unit 1 (A3 size), the Statement of Environmental Effects and on the Application form, except as otherwise provided by the conditions of this consent.

Note: Any proposal to modify the terms or conditions of this consent whilst still maintaining substantially the same development to that approved, will require the submission of a formal application for Council's consideration in accordance with the provisions of Section 96 of the Environmental Planning and Assessment Act, 1979.

Reason: To confirm and clarify the terms of approval.

2 Conditions Requiring Payment of a Monetary Contribution / Carrying Out of Off Site Works

2.1 A residential type vehicular crossing 4.5m wide being constructed across the public footway on Michael Street at the proposed driveway entrance/exit at no cost to Council and in accordance with Council's A017 Series (Concrete Vehicular Crossings) design specifications and such crossing being properly maintained.

Reason: To ensure the provision of adequate clearly defined and properly constructed means of all-weather vehicular access to the site in order to encourage the use of on-site parking facilities and in the interest of maximising vehicular and pedestrian safety and convenience.

2.3 Residential type vehicular crossings 6.5m and 3.5 m wide respectively being constructed across the public footway on Shereline Avenue at each of the proposed driveway entrance/exits at no cost to Council and in accordance with Council's A017 Series (Concrete Vehicular Crossings) design specifications and such crossing being properly maintained.

2.4 Any necessary alterations to public utility installations being at the Developer/Demolisher's expense and to the requirements of both Council and the appropriate authorities.

Reason: To ensure that any required alterations to public utility infrastructure are undertaken to acceptable standards and without demands on public sector resources.

2.5 Any redundant existing vehicular crossings being removed at no cost to Council and the public footway and kerb being restored to match the existing infrastructure.

Reason: To clarify site access arrangements in the interest of traffic and pedestrian safety, as well as road efficiency, to maximise kerbside parking opportunity and to ensure that reinstatement work is undertaken to an appropriate standard.

2.6 Any proposed work within the public road, including pipe or vehicular crossings, requires the separate approval from Council prior to the commencement of such works.

Note: An application for a road-opening permit is to be made with Council's City Works Service Unit. To apply for a road opening permit with Council's City Works Service Unit contact Council's Depot on 4974 6000. A fee will be payable for such approval.

Reason: To ensure that works within a public road are suitable, authorised and constructed to appropriate standards.

A total monetary contribution of $303.00 being paid to Council, pursuant to Section 94 of the Environmental Planning and Assessment Act, towards the provision of the following public amenities and public services within the locality, such contribution to be payable prior to the issue of a Construction Certificate in respect of the proposed development: a) District open space and recreation $ 59.00 b) Regional open space - foreshore promenade $ 59.00 c) Section 94 management $ 180.00 d) Youth facilities $ 5.00 Note : i) This condition is imposed in accordance with the provisions of the Newcastle City Council Contributions Plan No 1, 2001 operational from 8 October 2001. A copy of the plan may be inspected at Council's Customer Enquiry Centre, ground floor of the City Administration Centre, 282 King Street Newcastle 8.30 am to 5.00 pm [excluding public holidays].

ii) The amount of contribution payable under this condition has been calculated on the basis of current costs as at the date of consent and is to be indexed at the time of actual payment in accordance with the "Consumer Price Index" weighted average of eight capital cities published by the Australian Bureau of Statistics each quarter. Any party intending to act on this consent should contact Council's s94 Coordinator, City Strategy Group, for determination of the indexed amount of contribution as at the date of payment.) Reason: To assist Council in the provision of public facilities and services within the locality in response to the additional demand likely to be generated by the increased dwelling density proposed.

3 Conditions Requiring Inclusion of Details in Documentation for a Construction Certificate Application

3.1 All proposed planting and landscape elements indicated on the submitted landscape concept plan or otherwise required under the conditions of this consent being implemented and a comprehensive landscape design plan and specification in respect thereof being prepared by a qualified landscape designer and being submitted with a Construction Certificate application. See also Condition 3.25 herein.

Note 1 The required comprehensive landscape design plan and specifications is to be in accordance with the provisions of Council's adopted Development Control Plan No 33 (DCP 33) and is to include cross sections through the site where appropriate, proposed contours or spot levels, botanical names, quantities and container size of all proposed trees, shrubs and ground cover, details of proposed soil preparation, mulching and staking as well as treatment of external surfaces and retaining walls where proposed, drainage, location of taps and the nominated maintenance periods. Refer to checklist in DCP 33.

Note 2 A Landscape Practical Completion Report is required to be submitted to the Principal Certifying Authority by the consultant responsible for the landscape design plan prior to occupation of the premises or any portion of the premises that is the subject of this consent. The report is to verify that all landscape works have been carried out in accordance with the approved landscape design plan to a high professional standard and that an effective maintenance program has been commenced.

Reason: To ensure that adequate and appropriate provision is made for landscaping of the site in association with the proposed development, to enhance the external appearance of the premises and to contribute to the overall landscape quality of the locality.

3.2 Fences being constructed in a high quality presentation style of attractive appearance and of sufficient height to afford adequate privacy to residents in accordance with the performance criteria and provisions of Section 4.7 of Council's adopted Lower Hunter Urban Housing Development Control Plan. Full details are to be included in the documentation for a Construction Certificate application. See also Conditions 3.9 and 3.12 herein.

Reason: To ensure proposed fences and screen walls provide adequate privacy and do not unreasonably detract from the external appearance of the development.

3.3 Any garbage storage facility being screened from the street. Full details are to be included in the documentation for a Construction Certificate application.

(Note: It is recommended that the size of the garages for Units 2, 3 and 4 be redesigned to incorporate an adequately sized garbage storage location for two 'wheelie bins' in each garage)

Reason: To ensure any such facilities do not unreasonably detract from the external appearance of the development and to avoid bins having to be stored in the rear service yards as shown on the plans as dragging them up and down the steps is impractical.

3.4 The applicant complying with all requirements of the Hunter Water Corporation Ltd regarding the connection of water supply and sewerage services, including the payment of any required cash contribution towards necessary amplification of service mains in the locality as a result of the increased intensity of land use proposed. A copy of the Corporation's certificate of compliance is to be included in documentation for a Construction Certificate application.

Reason: To ensure that water supply and sewerage services are properly connected to the proposed development in the public interest.

3.5 All areas not provided with natural ventilation in accordance with the provisions of the Building Code of Australia being provided with an adequate mechanical ventilation system complying with Australian Standard 1668, Parts 1 and 2 "The use of mechanical ventilation and air conditioning in buildings". Full details are to be included in the documentation for a Construction Certificate application.

Reason: To ensure the provision of adequate ventilation in the interest of public health and safety.

3.6 The whole of the land Lot 3135 DP 755247 & Lot 2 DP 29494 111 Michael Street Jesmond being consolidated into a single title and documentary evidence of the lodgement for registration of a survey plan of consolidation with the Land Titles Office being submitted to Council prior to occupation of the premises.

Reason: To ensure that no portion of the total development site is disposed of independently without the prior approval of Council under the Environmental Planning and Assessment Act, 1979.

3.7 The proposed window hoods on the western elevation of the dwellings being deleted. The ground floor kitchen windows of Unit 2 and the ground floor kitchen and dining room windows of Units 3 and 4 being Stegbar awning hung windows or similar with limited wind-out mechanism so that views from the windows into the rear yard of No. 113 Michael Street are limited. The same windows to be glazed in obscured glass in Waverley or Flemish pattern to prevent views into No. 113 while maintaining the amenity of the future residents of the proposed dwellings. Full details are to be included in documentation for a Construction Certificate application.

Note: This method needs to allow for natural ventilation to the proposed dwelling in accordance with BCA Standards.

Reason: To ensure that structure are clear of the existing easement, provide adequate privacy screening to the neighbouring property and amenity to future residents.

3.8 The building footings being designed such that the building does not impose any loads on the existing public stormwater pipe drainage system on the subject land, and that a suitably qualified structural engineer provides certification of a design of the building footing system which meets the requirement listed herein. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure building safety and the protection of public infrastructure.

3.9 Any fencing constructed within the existing easement to drain water being in the form of removable panels, with the supporting posts being located at the outer edge of the easement such that no restrictions are proposed to be constructed within the subject easement. Full details are to be included in documentation for a Construction Certificate application. See also Condition 3.12.

Reason: To allow convenient access for future maintenance of underground pipe(s).

3.10 The easement to drain water within the site being kept clear of obstruction at all times (except for fencing, clothes lines, landscaping and removable pavers permitted by conditions of this consent). Full details are to be included in documentation for a Construction Certificate application. See also Condition 3.25.

Reason: To provide a defined and unobstructed overland stormwater flowpath and to allow access for maintenance of the underground pipe system.

3.11A. The stormwater plan in drawing No. 1454-99 Revision B sheet 1 of 1 to be amended to divert overland flows of stormwater from Michael Street so that it does not flow through the site and is diverted as described below into the Shereline Avenue street drainage. The diversion to operate in storm flows up to 1:100 year design storm plus the assumption of the street drainage grate at the corner of Michael Street and Shereline Avenue being 50% blocked. The driveway and footpath crossing to Unit 1 and the Michael Street frontage of the site to be designed and constructed so that they are not overtopped by street drainage or surcharge from the grate in storms up to the design standard referred to above. Details of the design to be included in the Construction Certificate include driveway levels, any diversion dwarf walls on the Michael Street or Shereline Avenue frontage of the site, and show that the driveway complies with Condition 3.15 herein. The diversion berm in the front yard of Unit 1 to be deleted as no longer necessary. Only on-site rainwater is to be collected in Unit 1's yard drain to the detention tank.

The western roof water down pipes and collector stormwater pipes to be located inside the footprint of the building and outside the drainage easement. The finished floor levels of Units 3 and 4 be adjusted to enable the collector stormwater pipes to reach the designed inlet levels to the detention tank without raising the overall height of those units above ground level. 3.11B. Architectural drawings and landscape drawings to be adjusted to accord with this condition and all the other conditions herein prior to the issue of the Construction Certificate. The amended drainage, architectural and landscape plans to be filed with Newcastle Council 14 days prior to the issue of any Construction Certificate. Reason: To ensure that any such proposed development does not adversely affect the drainage of the locality and the site and its neighbours.

3.12 Any fencing proposed across the council's drainage easements or overland flowpath having a section in open mesh or rod style of sufficient height from finished ground level to allow the passage of overland flows. Full details to be included in documentation for a Construction Certificate application.

Reason: To reduce the impact of the development on overland flows.

3.13 Should the drainage design in Condition 3.11A above necessitate, in storms greater than the 1:100 year design storm, that overland flows from Michael Street pass through the site, the floor levels of the proposed building being above the top water level of:

a) overland flowpaths directly adjacent the building, and

by the freeboards specified in Council's Development Control Plan No. 50 - Stormwater Management for Development Sites. Full details are to be included in documentation for a Construction Certificate application.

Note: Consideration should be given in the design to any potential blocking of pipe drains.

Reason: To reduce the impact of the development on flood behaviour.

3.14 Sub-soil/agricultural drains being provided for retaining walls, building footings and driveways and connected to the property stormwater drainage system. Full details are to be included in documentation for a Construction Certificate application.

Reason: To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions.

3.15 Design of the domestic driveways being in accordance with Australian/New Zealand Standard, AS/NZS 2890.1:2004. Full details are to be included in documentation for a Construction Certificate application.

Note: A driveway profile, preferably at 1:50 or 1:100 scale, to be included in documentation for a Construction Certificate application showing the grades and transitions from the layback of the vehicle crossing to the garage of the proposed building.

Reason: To ensure adequate vehicular access is provided to the proposed building.

3.16 The proposed driveway/s, being constructed with a basecourse of adequate depth to suit design traffic, being sealed with either bitumen seal, asphaltic concrete, concrete or interlocking pavers and being properly maintained. Full details are to be included in documentation for a Construction Certificate application.

Reason: To facilitate the use of vehicular access and parking facilities and to minimise any associated noise and dust nuisance.

3.17 All roof and surface waters, which drain through the pipe drainage system and detention system of the proposed development, being conveyed to the public stormwater pipe drain on the subject land. Full details are to be included in documentation for a Construction Certificate application.

Note: The public stormwater drain on the subject property is a 300-millimetre diameter stormwater underground stormwater pipe.

Reason: To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions.

3.18 All overflows from the property drainage detention system, being conveyed directly to the street gutter on Shereline Avenue. Full details are to be included in documentation for a Construction Certificate application.

Note 1: Pipes crossing the footway on Shereline Avenue to be provided as a means of discharging overflows to the street.

Note 2: Overflows from access grate of the detention facility to drain across footway to Shereline Avenue.

Reason: To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions.

3.19 A suitable drainage system is to be provided if paving, excavation or any other work on the allotment will cause undue interference with the existing drainage or rainwater falling on the allotment, whether the existing drainage is natural or otherwise. Full details are to be included in documentation for a Construction Certificate application.

Reason: To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions.

3.20 The proposed development not increasing upstream or downstream flooding for floods over a range of storms from 1:1 to 1:100 year events. This should be accomplished by the provision of stormwater control details of which are to be included in documentation for a Construction Certificate application.

Reason: To ensure that on-site stormwater run-off is properly collected and conveyed to an adequate drainage facility.

3.21 All stormwater runoff from the proposed development being collected into a suitable detention facility and disposed of by appropriate means into the public drainage system in accordance with the requirements of Council's Development Control Plan No. 50 - Stormwater Management for Development Sites. Full details to be included in documentation for a Construction Certificate application.

Note: Pump out systems are not acceptable means of stormwater disposal.

Reason: To ensure that on-site stormwater run-off is properly collected and conveyed to an appropriate drainage facility.

3.22 Any alteration to natural surface levels on the site being undertaken in such a manner as to ensure that no surface water is drained onto or impounded on adjoining properties. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure that any such proposed works do not disrupt existing natural stormwater flows in the vicinity.

3.23 The piped property drainage system comprising roof gutters, downpipes, underground pipes, inlet pits and associated components are to capture and convey the 20 year average recurrence interval storm runoff to the public drainage system. Drainage works being designed and constructed generally in accordance with:

a) Institute of Engineers Australia (1987) Australian Rainfall and Runoff, I.E. Aust, Canberra, and

b) Australian/New Zealand Standard, AS/NZS 3500.3.2: 1998 National Plumbing and Drainage - Acceptable Solutions.

Full details are to be included in documentation for a Construction Certificate application.

Reason: To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions.

3.24 Alterations being made to the location of the public stormwater drainage pipeline at no cost to council on the subject property such that the junction pit at the upstream end of the section of pipe, which runs through the six (6) feet (1.83 m) wide easement adjacent the west boundary of Lot 2, is located into Lot 3135 outside the proposed building footprint by the distance offsets specified below: (a) a distance offset from the north-most subject property boundary common with Michael Street (ie property boundary 15.545 metres long) equal to 4 metres, and (b) a distance offset to the west property boundary equal to the same distance between the centreline of the existing pipeline within the easement and the west boundary, and (c) a distance offset from the proposed building equal to 1.5 metres.

Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure that any such proposed works do not disrupt existing natural stormwater flows in the vicinity.

3.25 Landscaping within the drainage easement, including vegetation, garden bed kerbs (log, brick or concrete), garden bed soil and removable pavers and lawn, to be designed to levels such that there are no retaining walls, and finished surfaces enable an overland flowpath along the drainage easement to be maintained for the full width of the easement. Clothes lines are to be foldout type as shown on the plans mounted on posts on the western boundary with footings acceptable to the council engineer within the easement. Otherwise they may be relocated and wall mounted in the recessed bays on the west elevation of the building outside the drainage easement. Vegetation in the easement shall be surface rooted plants, shrubs or trees that can be easily removed should the council pipe in the easement ever need maintenance or replacement. Vegetation to be of species that will not impede the overland flow of water in the easement. Details to be included in the amended landscape plan and Construction Certificate drawings referred to in Condition 3.1 herein.

Reason: To ensure access and protection to the pipe Council's drain.

4 Conditions Requiring the Submission of Future Applications to Council or The Approval of Other Authorities

4.1 Compliance with the requirements of the Hunter Water Corporation Ltd in respect of any building or structure proposed to be erected over any services or stormwater drain under the Corporation's control.

Reason: To protect the Corporation's infrastructure from site development works.

4.2 The removal of any asbestos material during the demolition phase of the development being in accordance with the requirements of the Workcover Authority.

Reason: To prevent environmental pollution and to ensure observance of appropriate public health standards.

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

Reason: To confirm a condition of consent prescribed by the Environmental Planning & Assessment Regulation 2000.

5.2 Runoff and erosion controls shall be installed prior to clearing and incorporate:

a) diversion of uncontaminated upsite runoff around cleared and/or disturbed areas and areas to be cleared and/or disturbed.

b) sediment control fences at the downslope perimeter of the cleared and /or disturbed area to prevent sediment and other debris escaping from the land to pollute any stream or body of water.

c) Maintenance of all erosion control measures at maximum operational capacity until the land is effectively rehabilitated and stabilised beyond the completion of construction.

Note: All roof drainage systems are to be connected to the required discharge point prior to the fixing of any internal linings or finishes.

Reason: To control erosion and prevent sedimentation, flooding and pollution of land and waters downstream of the property.

5.3 The use and occupation of the premises including all plant and equipment installed thereon, not giving rise to any "offensive noise", as defined under the Noise Control Act, 1975, as amended.

Note: Should Council consider that offensive noise has emanated from the premises, the owner/occupier of the premises will be required to submit an acoustic consultant's report recommending appropriate acoustic measures necessary to ensure future compliance with this condition and will be required to implement such measures within a nominated period. Furthermore, written certification from the said consultant confirming that the recommended acoustic measures have been satisfactorily implemented will be required to be submitted to Council before the expiration of the nominated period.

Reason: To ensure that appropriate noise control measures are implemented in order to protect the existing amenity of the neighbourhood.

5.4 There being no interference with the amenity of the neighbourhood by reason of the emission of any vibration, smell, fumes, smoke, vapour, steam, soot, ash or dust, or otherwise as a result of the proposed development.

Reason: To prevent environmental pollution, to ensure observance of appropriate public health standards and to protect the existing amenity of the neighbourhood.

5.5 All asbestos material being appropriately contained and disposed of at Council's Waste Management facility or other approved waste management facility.

Reason: To confirm the conditions of consent and prevent indiscriminate dumping of waste material.

5.6 Construction / demolition work noise that is audible at other premises is to be restricted to the following times:

Monday to Friday, 7.00 am to 6.00 pm Saturday, 8.00 am to 1.00 pm

No construction/demolition work noise is permitted on Sundays or Public Holidays

Reason: To prevent 'offensive noise' from construction/demolition sites in accordance with the Environmental Protection Authority Guidelines.

5.7 Council's "PREVENT POLLUTION" sign being erected and maintained in a conspicuous location on or adjacent to the property boundary so that it is clearly visible to the public or at other locations on the site as otherwise directed by Council for the duration of construction work. Note: Council's PREVENT POLLUTION sign can be obtained by presenting your development application receipt at Council's Customer Enquiry Counter at 282 King Street Newcastle or at the Master Builders Association office.

Reason: To increase industry and community awareness of developer's obligations to prevent pollution and to assist in ensuring compliance with the statutory provisions of the Protection of the Environment Operations Act 1997.

5.8 A 1.8 m high, lapped timber paling fence, or equivalent, being erected along the side and rear boundaries of the site in consultation with the adjoining owners involved. Where the drainage easement adjoins the boundary, the councils engineer shall be consulted where any fence is in the easements. See also condition 3.12 herein; where passage of overland flows is required, the lower portions of the fence shall be as described therein.

Note: Any disputation which may arise between the developer and the adjoining property owners in respect of this matter is to be resolved in accordance with the provisions of the Dividing Fences Act.

Reason: To Minimise any adverse impact which the proposed development may have upon the neighbouring dwellings in terms of noise nuisance or loss of privacy.

5.9 All public footways, footpaving, kerbs, gutters and road pavement damaged during the works being restored to match existing conditions at the Developer's/Demolisher's expense.

Reason: To ensure that the required restoration is undertaken to acceptable standards and without demands on public sector resources.

5.10 Where the proposed development involves the destruction or disturbance of any existing survey monuments, those monuments affected being relocated at no cost to Council by a surveyor registered under the Surveyor's Act.

Reason: To ensure that existing permanent survey marks which may be affected by the development are appropriately reinstated.

5.11 The owner/demolisher ensuring that all services (ie water, telecommunications, gas, electricity, sewerage etc, are disconnected in accordance with the relevant authority's requirements prior to demolition.

Reason: To prevent damage to reticulation systems and ensure maintenance of public health standards.

5.12 The premises being identified by the provision of house numbers on the building exterior and mailbox such that they are clearly visible from the road frontage. The minimum numeral height shall be 75 mm.

Reason: To ensure that the property can be readily identified by visitors, motorists, emergency services and the community generally.

5.13 Building demolition being planned and carried out in accordance with Australian Standard AS2601:1991 (The Demolition of Structures).

Reason: To minimise the risk of injury or damage to property as a result of the proposed demolition.

5.14 Any building waste containers used in association with the proposed demolition being located on the site where possible.

Note: Where this is not feasible, application must be made for Council's approval to position the container on the adjacent public road in accordance with Council's adopted Building Waste Container Policy.

Reason: To ensure that such containers are so positioned as to not endanger pedestrian or vehicular traffic movement.

5.15 Any demolition/waste building materials being disposed of at Council's Waste Disposal Depot or other approved site.

Reason: To prevent indiscriminate dumping or use of demolition/waste building material for purposes of unauthorised land fill.

5.16 All building or site works or other written undertaking or obligation indicated in the submitted plans and supporting documentation or otherwise required under the terms of this consent being carried out or implemented prior to occupation of the premises.

Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act 1979.

5.17 Soil erosion and sedimentation being controlled and contained within the allotment boundaries to the standards of the Department of Infrastructure, Planning and Natural Resources (NSW).

Control measures are to be maintained at maximum operational capacity until the land is effectively rehabilitated and stabilised after construction.

Note: All roof drainage systems are to be connected to the required discharge point prior to the fixing of any internal linings or finishes.

Reason: To control erosion and prevent sedimentation, flooding and pollution of land and waters downstream from the property.

5.18 A Works As Executed (WAE) plan of the stormwater drainage system superimposed on a copy of the stormwater drainage and detention design plans approved with the Construction Certificate, shall be prepared and certified by a practising qualified professional engineer or registered surveyor experienced in the design of stormwater drainage systems.

The WAE plan shall comply with the requirements (relevant to the subject development) of Council's Development Control Plan No. 50, Stormwater Management for Development Sites, and the plan shall include the following information for: Drainage pits and pipes.

i) To show the layout of drainage pits and pipes where there is any departure or additional work undertaken from that shown on approved design plans. ii) To show the invert levels and surface levels of drainage pits. iii) To show the invert levels of outlet pipes from drainage pits. iv) To state that, pipes connecting to drainage pits are trimmed back to at least 30mm from walls of drainage pits, once this action has been completed. Detention facility(ies).

v) To show the overflow / spillway level of the detention facility. vi) To state that the orifice plate has been installed once this action has been completed. vii) To state that the trash rack has been installed once this action has been completed. viii) To show the dimensions & levels of the silt trap, or mark "as per approved design drawing" if this is the case. ix) To state that, the lockable access grates where required for underground detention facility(ies) have been installed, once this action has been completed. Building floor levels / finish surface levels.

x) To show the finished building floor levels and outside finish surface levels of the subject development. Works on site and in public roads.

xi) To show or state any departure or additional work undertaken from that shown on approved design plans.

The WAE plan of the stormwater drainage system shall be submitted to the Principal Certifying Authority appointed for the subject development and Council prior to occupation of the building.

Note: Outlet pipes from stormwater drainage pits should generally be flush with base of drainage pit unless shown otherwise by the approved design plans.

Reason: To ensure that proposed drainage infrastructure is satisfactorily constructed.

a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and

Reason: To confirm a condition of consent prescribed by the Environmental Planning & Assessment Regulation 1994.

5.20 An easement to drain water a minimum of 1.830 m wide over the stormwater pipeline within the subject property and an easement over any overland flow path conveying water from the public drainage system. Such easement to be in favour of Council and registered prior to the issue of the Occupation Certificate.

Note: The existing lot 3135 D.P.755247 has been identified at the development application as not having a drainage easement.

Reason: To provide a defined and practical stormwater flowpath and to allow access for maintenance of the underground pipe system.

5.21 Registered Surveyor's Certificates confirming that the invert levels of the underside of the building floor slabs for each unit and garage will comply with the approved design levels within the submitted stormwater concept plan. This certification is to be provided prior to the placement of concrete, a copy of the Surveyor's Certificates being forwarded to the Principal Certifying Authority.

Reason: To ensure that the building will be constructed as approved.

6.1 Prior to the occupation of a new building, or, occupation or use of an altered portion of, or an extension to an existing building, an Occupation Certificate is to be obtained from the Principal Certifying Authority appointed for the erection of the building.

Reason: To ensure compliance with Section 109M of the Environmental Planning and Assessment Act 1979, as amended.

6.2 Prior to commencing any construction works, the following provisions of the Environmental Planning and Assessment Act 1979 (the 'Act') are to be complied with:

a) A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.

b) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act and form 7 of schedule 1 to the Regulations.

c) Council is to be given at least two days notice of the date intended for commencement of building works, in accordance with Section 81A(2)(c) of the Act and Form 7 of Schedule 1 to the Regulations.

Reason: To advise of matters to be resolved prior to the commencement of work.

      K G Hoffman
      Commissioner of the Court
      rjs

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.

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