Devenish-Meares v Ku-ring-gai Council [2010] NSWLEC 1219 | Case summary

Land and Environment Court (NSW)|2010-08-13|Before: Mr J

The applicant shall submit documentary evidence that the property benefits from a drainage easement over the downstream properties as far as the public drainage system. This consent will not operate until the documentary evidence has been submitted to and approved by Council's Development Engineer.

Reason: To ensure that provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties.

The applicant shall submit full hydraulic design documentation for the required interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with Council's Water Management DCP 47 (available on Council's website and at Customer Services) and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flow rates, or detention system overflows where detention systems are to be provided, from the subject property.

? plan view of interallotment system to scale showing dimensions, location and reduced levels of all pits, grates, pipe inverts, flushing facilities and exact point of discharge ? the contributing catchment calculations and supporting pipe sizing information ? longitudinal section showing existing ground levels and proposed pipe invert levels, grades and flow capacities ? surrounding survey detail including all trees within seven (7) metres of the proposed drainage system ? means to preserve the root systems of trees within seven (7) metres of the drainage system

This consent will not operate until the required hydraulic design documentation has been submitted to and approved by Council's Development Engineer.

Reason: To ensure adequate provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties.

Approved architectural plans and documentation (new development) (a) The development must be carried out in accordance with the following plans and documentation listed below, except where amended by other conditions of this consent: Plan no. Drawn by Dated 965-DA01sheet 8 revD 24/06/10 965-08-ST01 sheet 2 rev D 965-08-ST01 sheet 3 rev D Waldman and Parker 965-08-ST01 sheet 5 rev A Dec 2009 965-08-ST01 sheet 6 rev A

Document(s) Dated Colours and finishes schedules received by Council 8/09/09 Basix Certificates Nos.231383S-02 and 231364S-02 1 September,2009

(b) This consent must be read in conjunction with the other development applications and consents for the site being: DA582/09 - stage 2; DA583/09 - stage 3; and DA584/09 - stage 4. (c) The dwellings shall not be occupied and occupation certificates must not be issued until all development referred to in condition (b) above has been completed in accordance with all conditions of the consents and approved plans (including the registration of all subdivision certificates to create all allotment referred to in the consents). Reason: To ensure that the development is in accordance with the determination.

In the event of any inconsistency between conditions of this consent and the drawings/documents referred to above, the conditions of this consent prevail.

Reason: To ensure that the development is in accordance with the determination.

Landscape works shall be carried out in accordance with the following landscape plan(s), listed below, except where amended by other conditions of this consent:

Plan no. Drawn by Dated #55.10(09)/094'C' Sheet 2/3 iScape July 2010

The references to tree numbers in this plan and the conditions of this consent relate to the tree numbering in the arborist report from Australis Tree Management dated 17 November 2009 prepared by Meredith Gibb. The PCA to be satisfied that tree numbering on the approved plans is consistent with this arborist report prior to issuing the construction certificate. Reason: To ensure that the development is in accordance with the determination.

CONDITIONS TO BE SATISFIED PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION:

The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a road opening permit being obtained from Council (upon payment of the required fee) beforehand.

Reason: Statutory requirement (Roads Act 1993 Section 138) and to maintain the integrity of Council's infrastructure.

At least 48 hours prior to the commencement of any development (including demolition, excavation, shoring or underpinning works), a notice of commencement of building or subdivision work form and appointment of the principal certifying authority form shall be submitted to Council.

Prior to the commencement of any works on site the applicant must submit to Ku-ring-gai Council and the Principal Certifying Authority a photographic record on the visible condition of the existing public infrastructure over the full site frontage (in colour - preferably saved to cd-rom in 'jpg' format). The photos must include detail of:

? The existing footpath ? The existing kerb and gutter ? The existing full road surface between kerbs ? The existing verge area ? The existing driveway and layback where to be retained ? Any existing drainage infrastructure including pits, lintels, grates.

Particular attention must be paid to accurately recording any pre-developed damaged areas on the aforementioned infrastructure so that Council is fully informed when assessing damage to public infrastructure caused as a result of the development (which is not to be repaired by the Applicant as part of the development). The developer may be held liable to all damage to public infrastructure in the vicinity of the site, where such damage is not accurately recorded and demonstrated under the requirements of this condition prior to the commencement of any works.

Prior to the commencement of any works on site, the applicant must submit for review by Council's engineers a construction and traffic management plan. The following matters must be specifically addressed in the plan:

A. A plan view of the entire site and frontage roadways indicating:

? dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and construction related vehicles in the frontage roadways ? turning areas within the site for construction and spoil removal vehicles, allowing a forward egress for all construction vehicles on the site ? the locations of proposed work zones in the frontage roadways ? location of any proposed crane and concrete pump and truck standing areas on and off the site ? a dedicated unloading and loading point within the site for all construction vehicles, plant and deliveries ? material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected ? an on-site parking area for employees, tradespersons and construction vehicles as far as possible

All traffic control plans must be in accordance with the RTA publication "Traffic Control Worksite Manual" and prepared by a suitably qualified person (minimum 'red card' qualification). The main stages of the development requiring specific construction management measures are to be identified and specific traffic control measures identified for each stage.

Approval is to be obtained from Council for any temporary road closures or crane use from public property. Applications to Council shall be made a minimum of 4 weeks prior to the activity proposed being undertaken. C. A detailed description and route map of the proposed route for vehicles involved in spoil removal, material delivery and machine floatage must be provided.

Light traffic roads and those subject to a load or height limit must be avoided where alternate routes exist.

A copy of this route is to be made available to all contractors and shall be clearly depicted at a location within the site.

The plan must provide evidence of RTA concurrence where construction access is provided directly from or within 20m of an arterial road.

The plan must provide a schedule of site inductions to be held on regular occasions and as determined necessary to ensure all new employees are aware of their construction management obligations. These must specify that construction-related vehicles are to comply with the approved requirements.

The plan must provide measures for minimising construction related traffic movements during school peak periods.

For those construction personnel that drive to the site, the applicant shall attempt to provide on-site parking so that their personnel's vehicles do not impact on the current parking demand in the area.

The construction and traffic management plan shall be prepared by a suitably qualified and experienced traffic consultant and be certified by this person as being in accordance with the requirements of the abovementioned documents and the requirements of this condition. The construction management measures contained in the approved plan shall be implemented in accordance with the plan prior to the commencement of, and during, works on-site including excavation.

As the plan has a direct impact on the local road network, the plan shall be submitted to and reviewed by Council's Development Engineer. Written acknowledgment from Council's Engineer shall be obtained (attesting to this condition being appropriately satisfied) and submitted to the Principal Certifying Authority prior to the commencement of any works on site.

Reason: To ensure that appropriate measures have been considered during all phases of the construction process in a manner that maintains the environmental amenity and ensures the ongoing safety and protection of people.

Earthworks and/or demolition of any existing buildings shall not commence until an erosion and sediment control plan is submitted to and approved by the Principal Certifying Authority. The plan shall comply with the guidelines set out in the NSW Department of Housing manual "Managing Urban Stormwater: Soils and Construction" certificate. Erosion and sediment control works shall be implemented in accordance with the erosion and sediment control plan. A suitably qualified and experienced civil/environmental engineer shall prepare this plan in accordance with the above guidelines and section 8.2.1 of Councils Water Management Development Control Plan 47.

Reason: To preserve and enhance the natural environment.

To preserve the following tree/s, no work shall commence until the area beneath their canopy is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site except where it is necessary to remove it to carry out landscape works under this consent. Schedule Tree/Location Radius in metres #21 Camellia japonica (Japanese Camellia) 2.0m Adjacent to eastern site boundary

#22 Camellia sasanqua (Chinese Camellia) 1.5m Adjacent to eastern site boundary

#23 - 25 Acer palmatum (Japanese Maple) 3.0m Adjacent to eastern site boundary

#29 Pittosporum undulatum (Native Daphne) 2.0m Adjacent to eastern site boundary

#33 Banksia serrata (Old Man Banksia) 2.5m Centrally located on site

#36 Cyathea australis (Tree fern) 1.5m Centrally located on site

#44 Pittosporum undulatum (Native Daphne) 3.0m Adjacent to southeast site corner

#45 Pittosporum undulatum (Native Daphne) 3.6m Adjacent to southeast site corner

#46 Angophora bakeri (Narrow leaf apple) 1.5m Adjacent to southern site boundary

#52 Eucalyptus resinifera (Red Mahogany) 3.0m Adjacent to southern site boundary

#53 Corymbia gummifera (Red Bloodwood) 3.0m Adjacent to southern site boundary

#54 Eucalyptus resinifera (Red Mahogany) 3.5m Adjacent to southern site boundary

#55 Corymbia gummifera (Red Bloodwood) 3.0m Centrally located on site

#56 Ceratopetalum gummiferum (NSW Christmas Bush) 2.5m Centrally located on site

#62 - 64 Pittosprum undulatum (Native Daphne) 2.5m Adjacent to western site boundary

#65 Eucalyptus resinifera (Red Mahogany) 5.0m Adjacent to western site boundary

#66 Pittosporum undulatum (Native Daphne) 4.0m Adjacent to western site boundary

#73 Pittosporum undulatum (Native Daphne) 2.0m Adjacent to western site boundary

#75 Eucalyptus piperita (Sydney Peppermint) 8.0m Adjacent to southwest site corner

#76 - 79 Cinnamomum camphora (Camphor laurel) 5.0m Adjacent to southwest site corner

#80 Pittosporum undulatum (Native Daphne) 2.0m Adjacent to southern site boundary

#81 Elaeocarpus reticulatus (Blueberry Ash) 1.5m Adjacent to southern site boundary

#82 Pittosporum undulatum (Native Daphne) 1.5m Adjacent to southern site boundary

#83 Corymbia gummifera (Red Bloodwood) 5.0m Adjacent to southern site boundary

#84 Allocasuarina littoralis (Black She Oak) 3.0m Adjacent to southern site boundary

#85 Eucalyptus resinifera (Red Mahogany) 2.0m Adjacent to southern site boundary

Reason: To protect existing trees during the construction phase.

To preserve the following tree/s, no work shall commence until the area beneath their canopy excluding that area of the approved driveway, dwellings and swimming pools shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site except where it is necessary to remove it to carry out landscape works under this consent:

Schedule Tree/Location Radius in metres #6 Pittosporum undulatum (Native Daphne) 3.0m Adjacent to eastern side of access handle within neighbouring property

#9 Syzigium spp (Lillypilly) Adjacent to western site boundary in access handle 1.5m

#12 Phoenix canariensis (Canary Island Date Palm) Adjacent to northeast site corner 4.0m

#27 Eucalyptus haemastoma (Scribbly Gum) Centrally located on site 7.5m

#34 Arbutus unedo (Irish Strawberry Tree) Adjacent to western site boundary in neighbouring property 5.0m

#35 Cedrus deodar (Himalayan Cedar) Adjacent to western site boundary 5.5m

#60 Eucalyptus resinifera (Red Mahogany) Centrally located on site 9.0m

Reason: To protect existing trees during the construction phase.

The tree protection fencing shall be constructed of galvanised pipe at 2.4 metre spacing and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres in height prior to work commencing.

Reason: To protect existing trees during construction phase.

Prior to works commencing, tree protection signage is to be attached to each tree protection zone, displayed in a prominent position and the sign repeated at 10 metres intervals or closer where the fence changes direction. Each sign shall contain in a clearly legible form, the following information:

? This fence has been installed to prevent damage to the trees and their growing environment both above and below ground and access is restricted. ? Any encroachment not previously approved within the tree protection zone shall be the subject of an arborist's report. ? The arborist's report shall provide proof that no other alternative is available. ? The Arborist's report shall be submitted to the Principal Certifying Authority for further consultation with Council. ? The name, address, and telephone number of the developer. Reason: To protect existing trees during the construction phase.

Prior to works commencing and throughout construction, the area of the tree protection zone is to be mulched to a depth of 100mm with composted organic material being 75% Eucalyptus leaf litter and 25% wood.

Reason: To protect existing trees during the construction phase. 14. Tree protection - avoiding soil compaction

To preserve the following tree/s and avoid soil compaction, no work shall commence until temporary measures to avoid soil compaction (eg rumble boards) beneath the canopy of the following tree/s is/are installed:

Schedule Tree/Location #4 Eucalyptus sclerophylla (Scribbly Gum) Access handle

#6 Pittosporum undulatum (Native Daphne) Adjacent to eastern side of access handle within neighbouring property

#27 Eucalyptus haemastoma (Scribbly Gum) Centrally located on site

#60 Eucalyptus resinifera (Red Mahogany) Centrally located on site

Reason: To protect existing trees during the construction phase.

To preserve the following tree/s, no work shall commence until the trunk/s are protected by the placement of 2.0 metres lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm wide spacing over suitable protective padding material. The trunk protection shall be maintained intact until the completion of all work on site.

Any damage to the tree/s shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority:

Schedule Tree/Location #4 Eucalyptus sclerophylla (Scribbly Gum) Access handle

Reason: To protect existing trees during the construction phase.

Upon installation of the required tree protection measures, an inspection of the site by the Principal Certifying Authority is required to verify that tree protection measures comply with all relevant conditions.

Reason: To protect existing trees during the construction phase.

A permanent, 1.5 metres high, cyclone wire boundary fence, shall be constructed along the common boundary with the Edinburgh Park prior to any work commencing.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE:

Prior to issue of the Construction Certificate, the applicant must consolidate the existing Torrens lots which form the development site. Evidence of lot consolidation, in the form of a plan registration with the Land and Property Information, must be submitted for approval of the Principal Certifying Authority prior to issue of the Construction Certificate.

Reason: To ensure continuous structures will not be placed across separate titles.

Prior to the issue of a Construction Certificate, the Principal Certifying Authority shall be satisfied that the approved landscape plans, listed below, have been amended in accordance with the requirements of this condition as well as other conditions of this consent:

Plan no. Drawn by Dated #55.10(09)/094'C' Sheet 2/3 iScape July 2010

The above landscape plan(s) shall be amended in the following ways:

? The following trees shall be shown to be retained; #'s 33, 35, 36, 56, 62, 63, 64, 65, 76, 78, & 79. No consent for their removal is given as part of this approval.

Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that the landscape plan has been amended are required by this condition.

Note: An amended plan, prepared by a landscape architect or qualified landscape designer shall be submitted to the Certifying Authority.

Reason: To ensure adequate landscaping of the site.

Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the approved engineering plan(s), listed below have been amended in accordance with the requirements of this condition as well as other conditions of this consent.Plan No. Drawn By Dated 392110/ C1 - 1 Issue 2 Acor Appleyord 6/2009 392110/ C1 - 2 Issue 2 Acor Appleyord 6/2009 392110/ C1 - 3 Issue 1 Acor Appleyord 2/2009

The above engineering plan(s) shall be amended if necessary to ensure compliance with the following:

? Australian Standard 2890.1 - "Off-street car parking". ? Ku-ring-gai Council Water Management Development Control Plan 47.

Note: Engineering plans, prepared by a qualified engineer shall be submitted to the Certifying Authority. Reason: To ensure that the development is in accordance with the determination.

In accordance with Section 109F(i) of the Environmental Planning and Assessment Act a Construction Certificate shall not be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided to Council.

The applicant, builder, developer or person who does the work on this development, must arrange builder's indemnity insurance and submit the certificate of insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Certifying Authority for endorsement of the plans accompanying the Construction Certificate.

It is the responsibility of the applicant, builder or developer to arrange the builder's indemnity insurance for residential building work over the value of $12,000. The builder's indemnity insurance does not apply to commercial or industrial building work or to residential work valued at less than $12,000, nor to work undertaken by persons holding an owner/builder's permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building. Details confirming compliance with this condition must be shown on construction certificate plans and detailed with construction certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on construction certificate plans and detailed with construction certificate specifications. External vents or roof vent pipes must not be visible from any place unless detailed upon development consent plans. Where there is any proposal to fit external service pipes or the like this must be detailed in an amended development (S96) application and submitted to Council for determination.

Vent pipes required by Sydney Water must not be placed on the front elevation of the building or front roof elevation. The applicant, owner and builder must protect the appearance of the building from the public place and the appearance of the streetscape by elimination of all external services excluding vent pipes required by Sydney Water and those detailed upon development consent plans.

Reason: To protect the streetscape and the integrity of the approved development.

Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, scale construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail:

? exact location and reduced level of discharge point to the public drainage system ? Layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, spreaders, pits, swales, kerbs, cut-off and intercepting drainage structures, subsoil drainage, flushing facilities and all ancillary stormwater plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) ? location(s), dimensions and specifications for the required rainwater storage and reuse tanks and systems and where proprietary products are to be used, manufacturer specifications or equivalent shall be provided ? specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with Ku-ring-gai Council Development Control Plan 47 and/or BASIX commitments ? details of the required on-site detention tanks required by Ku-ring-gai Water Management DCP 47, including dimensions, materials, locations, orifice and discharge control pit details as required (refer Chapter 6 and Appendices 2, 3 and 5 of DCP 47 for volume, PSD and design requirements) ? the required basement stormwater pump-out system is to cater for driveway runoff and subsoil drainage (refer appendix 7.1.1 of Development Control Plan 47 for design)

The above construction drawings and specifications are to be prepared by a qualified and experienced civil/hydraulic engineer in accordance with Council's Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the Building Code of Australia. The plans may be generally based on the plans referred to in condition 20 submitted with the development application, which are to be advanced as necessary for construction certificate issue purposes.

Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that:

A mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47; and

An on-site stormwater detention system must be provided to control the rate of runoff leaving the site. The minimum volume of the required on-site detention system must be determined in accordance with Chapter 6 of the Ku-ring-gai Council Water Management Development Control Plan 47 - having regard to the specified volume concession offered in lieu of installing rainwater retention tanks. The on-site detention system must be designed by a qualified civil/hydraulic engineer and must satisfy the design controls set out in Appendix 5 of DCP 47.

Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that the footings of the approved driveway and dwellings will be isolated pier or pier and beam construction within the specified radius of the trunk/s of the following tree/s:

Schedule Tree/Location Radius from trunk #4 Eucalyptus sclerophylla (Scribbly Gum) 12.5m Access handle

#27 Eucalyptus haemastoma (Scribbly Gum) 7.5m Centrally located on site

#60 Eucalyptus resinifera (Red Mahogany) 9.0m Centrally located on site

The piers shall be located such that no roots of a diameter greater than 30mm will be severed or injured during the construction period. The beam/s shall be of reinforced concrete or galvanised steel sections and placed in positions with the base of the beam being a minimum of 50mm above existing soil levels.

Note: Structural details of the pier or pier and beam construction shall be submitted to the Principal Certifying Authority.

Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings".

Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment.

This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels.

The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted.

Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic.

All new exposed impervious areas graded towards adjacent property and/or habitable areas are to be drained via the main drainage system. This may require the installation of suitable inlets pits, cut-off structures (e.g. kerb), and/or barriers that direct such runoff to the formal drainage system. Details of such measures shall be shown on the Construction Certificate drawings, to the satisfaction of the Certifying Authority.

Reason: To control surface run off and protect the environment.

Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 - 2004 "Off-Street car parking". Details are to be provided to and approved by the Certifying Authority prior to the issue of the Construction Certificate.

Reason: To ensure that parking spaces are in accordance with the approved development.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE OR PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION (WHICHEVER COMES FIRST):

To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter:

a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas.

b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article.

c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction.

d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition.

e) In this condition: "Council Property" includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and

"Infrastructure Restoration Fee" means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition. Reason: To maintain public infrastructure.

Section 94 Contribution - Residential Development (New Construction)

a) A contribution pursuant to section 94 of the Environmental Planning and Assessment Act as specified in Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2) for the services detailed in column A and for the amount detailed in Column B is required.

Column A Column B Community facilities (district) $2,001.00 3.28% Park acquisition and embellishment works $46,889.54 76.76% Park embellishment works $3,856.83 6.31% Sportsgrounds works $6,846.99 11.21% Aquatic / leisure centres $405.34 0.66% Traffic and transport $571.87 0.94% Section 94 Plan administration $512.65 0.84% Total contribution is: $61,082.21

b) However, having regard to the Minister's direction under section 94E dated 4 June 2010 the Land and Environment Court determined that the contribution is reduced to $20,000.00 (1 dwelling authorised by the consent with a credit for the existing dwelling).

Total contribution $20,000.00 c) The contribution shall be paid to Council prior to the commencement of any development (including demolition) or prior to the issue of a Construction Certificate (whichever comes first).

Reason: To ensure the provision, extension or augmentation of community facilities, recreation facilities, open space, traffic and transport, and administration that will, or are likely to be, required as a consequence of the development.

CONDITIONS TO BE SATISFIED DURING THE DEMOLITION, EXCAVATION AND CONSTRUCTION PHASES:

The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

? The work must be carried out in accordance with the requirements of the Building Code of Australia ? In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any works commence.

Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12 noon Saturday. No work and no deliveries are to take place on Sundays and public holidays.

Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon 1.00pm.

Where it is necessary for works to occur outside of these hours (ie) placement of concrete for large floor areas on large residential/commercial developments or where building processes require the use of oversized trucks and/or cranes that are restricted by the RTA from travelling during daylight hours to deliver, erect or remove machinery, tower cranes, pre-cast panels, beams, tanks or service equipment to or from the site, approval for such activities will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works.

Note: Failure to obtain a permit to work outside of the approved hours will result in on the spot fines being issued.

Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties.

A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period.

? be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted ? display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer ? be durable and weatherproof ? display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice ? be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted

Reason: To ensure public safety and public information.

During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted:

? physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust ? earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed ? all materials shall be stored or stockpiled at the best locations ? the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs ? all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust ? all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays ? gates shall be closed between vehicle movements and shall be fitted with shade cloth ? cleaning of footpaths and roadways shall be carried out daily

Reason: To protect the environment and amenity of surrounding properties.

A contractor with specialist excavation experience must undertake the excavations for the development.

Reason: To ensure the safety and protection of property.

During excavation, demolition and construction phases, no building materials, plant or the like are to be stored on the road or footpath without written approval being obtained from Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

If the work involved in the erection, demolition or construction of the development is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

If necessary, a hoarding is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

Any hoarding, fence or awning is to be removed when the work has been completed.

During demolition and construction, the Principal Certifying Authority shall be satisfied that building materials suitable for recycling have been forwarded to an appropriate registered business dealing in recycling of materials. Materials to be recycled must be kept in good order.

All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

Reason: To ensure safe public footways and roadways during construction.

Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the applicants' full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority.

During construction, stormwater runoff must be disposed of in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to manage and control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority.

Reason: To preserve and enhance the natural environment.

Temporary sediment and erosion control and measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers.

Reason: To protect the environment from erosion and sedimentation.

Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped and connected to the interallotment stormwater drainage line benefiting the site. The interallotment line must be covered by the necessary easement for drainage which may exist or need to be created under this consent.

A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door/basement parking slab to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris.

The applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994. An application must be made through an authorised Water Servicing CoOrdinator. The applicant is to refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then the "e-develop" icon or telephone 13 20 92. Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the CoOrdinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The tree/s to be retained shall be inspected, monitored and treated by a qualified Arborist during and after completion of development works to ensure their long term survival. Regular inspections and documentation from the Arborist to the Principal Certifying Authority are required at the following times or phases of work:

Schedule Tree/Location Time of inspection #4 Eucalyptus sclerophylla (Scribbly Gum) Within driveway access handle * Immediately prior to commencement of any works on site * Immediately after the completion of demolition, and prior to excavation/regrading #27 Eucalyptus haemastoma (Scribbly Gum) * Immediately after the completion of excavation/regrading of site Centrally on site * At four monthly intervals during construction/development works * At the completion of all works on site. #60 Eucalyptus resinifera (Red Mahogany) Rear of site

Canopy and/or root pruning of the following tree/s which is necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 - Pruning of Amenity Trees.

Schedule Tree/Location Tree works #12 Phoenix canariensis (Canary Island Date Palm) Adjacent to northeast site corner Root pruning/Canopy lifting as required.

#27 Eucalyptus haemastoma (Scribbly Gum) Root pruning and selective pruning of canopy Centrally located on site Canopy pruning of spatially conflicting limbs only #60 Eucalyptus resinifera (Red Mahogany) Centrally located on site

If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist with a minimum qualification of Horticulture Certificate or Tree Surgery Certificate. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 - Pruning of Amenity Trees.

No tree roots of 30mm or greater in diameter located within the specified radius of the trunk/s of the following tree/s shall be severed or injured in the process of any works during the construction period. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 - Pruning of Amenity Trees:

Schedule Tree/Location Radius from trunk #4 Eucalyptus sclerophylla (Scribbly Gum) 12.5m Access handle

#6 Pittosporum undulatum (Native Daphne) 3.0m Adjacent to eastern side of access handle within neighbouring property

#8 Syragus romanzoffianum (Coccos Palm) Adjacent to northern site boundary in neighbouring property 2.0m

#9 Syzigium spp (Lillypilly) Adjacent to western site boundary in access handle 1.5m

#12 Phoenix canariensis (Canary Island Date Palm) Adjacent to northeast site corner 4.0m

#21 Camellia japonica (Japanese Camellia) Adjacent to eastern site boundary 2.0m

#22 Camellia sasanqua (Chinese Camellia) Adjacent to eastern site boundary 1.5m

#23 - 25 Acer palmatum (Japanese Maple) Adjacent to eastern site boundary 3.0m

#27 Eucalyptus haemastoma (Scribbly Gum) Centrally located on site 7.5m

#29 Pittosporum undulatum (Native Daphne) Adjacent to eastern site boundary 2.0m

#33 Banksia serrata (Old Man Banksia) Centrally located on site 2.5m

Devenish-Meares v Ku-ring-gai Council

At a glance

Court

Decision date

Before

Source

Judgment (646 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)