Diab v Ashfield Municipal Council

Land and Environment Court (NSW)|2009-03-11

The applicant shall meet the full cost for Telstra, Sydney Electricity, Sydney Water or Natural Gas Company to adjust/relocate their services as required. The applicant shall make the necessary arrangements with the service authority. (For information on the location of these services contact the "Dial before you Dig" service on 1100.)

Documentary evidence from the public utility authorities confirming that all of their requirements have been satisfied shall be submitted to council with the Construction Certificate under Section 68 of the Local Government Act, 1993, for construction of the development (5) Structural engineer's details To ensure compliance with the provision of Section B of the Building Code of Australia structural engineer's details of all structural elements shall be submitted to the Principal Certifying Authority prior to commencement of work, including:

The applicant shall meet the full cost for the removal of the existing Council Bottlebrush street tree which is located in the nature strip directly in front of the site. At no cost to Council and again at the applicant's expense a new tree of similar species shall be replanted. The location for the replacement planting shall be determined by Council's Tree Technical Officer.

A Bond or Bank Guarantee for the amount of $1,500 shall be lodged with Council prior to the release of the Construction Certificate. This bond shall be released 6 months after the tree has been planted, providing the tree has been successfully retained in a healthy and vigorous state (which shall be to the satisfaction of Council's Tree Technical Officer).

D Conditions that must be complied with before work commences

Work must not commence until the Principal Certifying Authority or the person having the benefit of the development consent has given Notification in Writing to Council no later than two days before the building work commences.

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 the erection of a building and/or construction works must not commence until:

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by: (i) Council; or (ii) an accredited certifier; and

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

The documentation required under this condition shall show that the proposal complies with all development consent conditions and the Building Code of Australia.

Note: If the principal certifying authority is the Council, the appointment will be subject to the payment of a fee for the service to cover the cost of undertaking building work and / or civil engineering inspections.

WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is a criminal offence that attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

(3) Inspections required by Principal Certifying Authority

If Council is selected as the Principal Certifying Authority (PCA) inspections will be required and fees must be paid for in advance. The fees are only valid until 30 June 2009 following which the charges will be reassessed. If additional inspections are required, an additional fee is payable for each inspection. A minimum of 24 hours notice is required to be given to Council to obtain an inspection. Work is not to proceed until the works or activity covered by each inspection is approved.

To ensure that the location of the building satisfies the provision of the approval, a check survey certificate shall be submitted to the Principal Certifying Authority either prior to the pouring of the ground floor slab or at dampcourse level, whichever is applicable or occurs first, indicating the: -

(i) location of the building with respect to the boundaries of the site; (ii) level of the floor in relation to the levels on the site (all levels are to be shown relative to Australian Height Datum); (iii) site coverage of the buildings on the site.

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

(6) Public Liability Insurance - Works on Council/public lands

The applicant or any contractors carrying out approved works on public or Council controlled lands with consent shall have public liability insurance cover to the value of $10million and shall provide proof of such cover to the principal certifying authority prior to carrying out the works and annually for the period of time for which works are being carried out on Council or public lands.

Sediment and erosion controls must be in place before work is commenced on the site. The control strategies must be consistent with the technical requirements set out in the Sydney Coastal Councils' Stormwater Pollution Control Code for Local Government.

Material from the site is not to be tracked onto the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter.

A sediment and erosion control plan must be prepared and identify appropriate measures for bunding and siltation fencing. Any such erosion and sedimentation controls shall also include the protection of stormwater inlets or gutter systems within the immediate vicinity of the site.

The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected.

E Conditions that must be complied with during construction or demolition

(1) Building materials - storage/placement on footpath/roadway - Council approval

All building materials shall be stored wholly within the property boundaries and shall not be placed on the footpath, grass verge or roadway without prior written approval of Council.

Bulk refuse bins shall not be placed on the grass verge, footpath or roadway without Council permission. Application forms and details of applicable fees are available from Council's One Stop Shop telephone 9716 1800.

(2) Signs to be erected on building and demolition sites

(1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the work site is prohibited; and (b) showing the name and address of the contractor for the building work and the person in charge of the work site and a telephone number at which the person may be contacted outside working hours; and (c) showing the name, address and telephone number of the Principal Certifying Authority appointed for the building works.

(2) Any-sign shall be maintained and not removed until work has been finished.

(3) Demolition/excavation/construction - hours of work

Demolition, excavation and construction work, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7.00am to 6.00pm, Monday to Saturday inclusive. Work is prohibited on Sundays, and on public holidays.

Demolition is to be carried out in accordance with the following:

(a) Australian Standard 2601 and any requirements of the Workcover Authority.

(b) The Waste Management Plan submitted with the Development Application.

(c) The property is to be secured to prohibit unauthorised entry. (d) Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 3.1 and 3.9 of the AS 2601 - 1991, demolition of structures. The following measures must be undertaken for hazardous dust control: i Hazardous dust must not be allowed to escape from the site or contaminate the immediate environment. The use of fine mesh dust proof screens, wet-lead safe work practices, or other measures is required. ii All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with WorkSafe Requirements (in particular the WorkSafe standard for the Control of Inorganic Lead At Work (NOHSC: 1012, 1994) and AS 2641, 1998). iii Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment.

(e) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.

(f) Construction and demolition waste, particularly timber, bricks and tiles, concrete and other materials need not be disposed of- they can be recycled and resold if segregated properly from any hazardous waste contamination.

(5) Fire Detection/Alarm System installation and certification

Smoke alarms must be installed in dwellings in accordance with Clause 3.7.2.3 of the Building Code of Australia (BCA) and AS 3786 on or near the ceiling in -

between each area containing bedrooms and the remainder of the dwelling, including any hallway associated with the bedrooms

Smoke alarms must be connected to the consumer mains power and have a stand-by power supply.

The licensed Electrical Contractor shall on completion of the installation of the smoke alarm system, submit to the Principal Certifying Authority a certificate certifying compliance with AS 3000 and AS 3786:1993.

The new works shall be constructed in accordance with, and comply with the undertakings given on the BASIX (Building Sustainability Index) Certificate as obtained from the Department of Infrastructure, Planning and Natural Resources. For more information visit www.basix.nsw.gov.au .

The public footpath and verge outside the site shall be completely reconstructed to the requirements of Council's Works & Infrastructure Department at the applicant's expense. This work shall be carried out prior to the release of the Occupation Certificate.

The applicant is to take all precautions to ensure footpaths and roads are kept in a safe condition and to prevent damage to Council's property.

Vehicles entering and leaving the site must only cross the footpath where it is adequately timbered and strapped. Pedestrian access across this footpath must be maintained in good order at all times during work. Any damage caused will be made good by Council at Council's restoration rates, at the applicant's expense.

The existing vehicular access driveway shall be removed and a new vehicular access driveway shall be constructed in accordance with Council's standard drawing and specifications. The driveway shall be located a minimum of 1.0m clear of any existing stormwater pits, lintels or poles and 2m clear of any trees within the road reserve. No utility service opening such as Telstra, Sydney Electricity, Sydney Water or Natural Gas Company shall be permitted within 0.5m of any vehicular access driveway.

This work shall be carried out prior to the release of the Occupation Certificate.

(10) Road opening permit - Council controlled lands

A road opening permit shall be obtained for all works carried out in public or Council controlled lands. Contact Council's Engineering Services for details.

Stormwater runoff from all roof and paved surfaces shall be collected and discharged by means of a gravity pipe system to, Council's street drainage system.

The proposal must be constructed in accordance with the Building Code of Australia (BCA).

The Council stamped approved plans, Development Consent and Construction Certificate shall be held on site to be produced unobliterated to Council's officer at any time when required.

No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach upon Council's footpath area.

F Conditions that must be complied with prior to installation of services

G Conditions that must be complied with before the building is occupied

The building or any part thereof must not be used or occupied until an Occupation Certificate has been obtained from the Principal Certifying Authority. An application form is required to be completed and a fee lodged at the final inspection prior to the occupation.

H Conditions that are ongoing requirements of development consents

(1) Approved use The premises shall not be used for any purpose other than that stated in the Development Application, i.e. dwelling-house without the prior consent of the Council.

K G Hoffman Acting Commissioner of the Court ljr

21/05/2009 - compliance with Orders 2 and 3 - Paragraph(s) conditions

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

CITATION : Diab v Ashfield Municipal Council [2009] NSWLEC 1094 This decision has been amended. Please see the end of the judgment for a list of the amendments.

CASES CITED: Veloshin v Randwick Council [2007] NSWLEC 428 Project Venture Developments v Pittwater Council [2005] NSWLEC 191

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