Equitibuild Pty Limited v Leichhardt Municipal Council

Land and Environment Court (NSW)|2001-04-06|Before: Mr P, Mr J

The applicant or successor shall bear the cost of any driveway, footpath, kerb, guttering or stormwater drainage deemed necessary by Council as required by conditions contained in this development consent.

Details of compliance with any conditions for works are to be submitted for approval prior to the issue of a Construction Certificate.

Reason: To ensure that all necessary works are carried out to a standard satisfactory to Council .

Reason: This condition is to ensure the safety of persons in the building in the event of fire.

Prior to the issue of a Construction Certificate, the applicant shall prepare and submit a Waste Management Plan in accordance with the provisions of DCP 38 and the Waste Planning Guide for Development Applications (Planning for Less Waste, prepared by the Regional Waste Boards), including: a) Estimations of quantities and type of materials to be reused, recycled or left over for removal from site; b) Identification on a plan of on site material storage areas during construction, waste storage, recycling and composting areas; c) Details of the construction materials and methods to be used to minimised the production of waste in the completion of the new building work.

Reason: To encourage waste minimisation (avoidance source separation, re-use and recycling) and ensure efficient storage and collection of reusable, recyclables and waste.

The garbage storage room must have bin wash facilities, ie, trapped gully and water taps. The area must be serviceable by Council's own waste and recycling vehicles and/or private collection contractors. For large scale proposals which propose more than one Garbage and Recycling Room operating in conjunction with a Collection Area, the Body Corporate is to ensure waste is transported from the rooms to the collection area at appropriate times and from this area to on-street placement on collection days. Details are to be provided with the application for a construction certificate. Reason: To ensure garbage storage areas are maintained and accessible.

36 Disabled Access and Services Detailed plans drawn to the scale of 1:20 for the development shall be submitted in accordance with the requirements of AS 1428 Part 1 and DCP 32 prior to the issue of a Construction Certificate, showing detailed levels, ramp slopes, door widths and circulation spaces.

37 Plantation or recycled timbers To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings. The Construction Certificate is to specify the timbers to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.

A Notice of Requirements for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water.

Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in a Notice of Requirements from Sydney Water. You should make immediate application for a Certificate and obtain a Notice of Requirements. Early advice will avoid problems in providing water and sewer services to your development and adverse impacts on lot layout, other service or design of buildings, driveways and landscaping.

Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council or the accredited certifier prior to the Construction Certificate being issued.

Conditions that must be satisfied before a Subdivision Certificate is issued

Prior the issue of a Subdivision Certificate, the applicant is to submit a survey plan, prepared by a registered surveyor, and at least six copies for certification by the General Manager or delegate.

Reason: Because it is in the public interest that the plan is certified by the General Manager or delegate, pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (or if relevant Local Government Act 1919) and that Council retain and catalogue a copy of that plan.

Prior the issue of a Subdivision Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporisation) Act 1994.

Reason: To ensure the provision of services is available to service the subdivision .

41 Section 37 of Strata Titles Act An application under Section 37 of the Strata Titles Act, 1973 must be submitted to Council and granted approval prior the release of the certified strata plan of subdivision.

Reason: Because it is in the public interest that the plan is certified by the General Manager pursuant to Section 37 of the Strata Titles Act 1973, as amended and that Council retain and catalogue a duplicate copy of that plan.

42 Documentary evidence The Strata Plan of subdivision will not be issued until documentary evidence of compliance with conditions of Development Consent No. D/2003/835 has been submitted to Council.

Reason: To ensure compliance with the Environmental Planning and Assessment Act 1979 and conditions of consent. Conditions that must be completed before work commences

43 A Stage 2 Contamination Investigation is required to be undertaken after the site structures are demolished and prior to construction as it has been stated that the tenant lease and physical layout makes further investigation difficult at this stage and the site auditor considers the sampling so far reported being inadequate. This investigation is to be reviewed by an EPA Accredited Site Auditor prior to remediation.

44 At the completion of the remediation work, and prior to the release of any Construction Certificate and commencement of any building work on the site, a validation report is required to be submitted to Council and reviewed by a NSW EPA Accredited Site Auditor. A Site Audit Statement is to be issued that the site has been remediated in accordance with EPA guidelines for the proposed use.

The existing structures on site potentially contain asbestos and/or lead. Following removal of any asbestos located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos remains on site from a suitably qualified person.

A copy of the Certificate must be forwarded to Council before construction work is commenced

46 Demolition Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 1.8, 3.1, 3.3 and 3.9 of the AS 2601 - 2001, demolition of structures. a) Prior the demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 appendix A by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall be applicable to the scale of the structure to be demolished and identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials. b) 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. c) 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). d) Any existing accumulations of dust (eg; ceiling voids and wall cavities must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter and disposed of appropriately. e) All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Water used as a suppressant spray is not be allowed to enter the street gutter and stormwater systems. f) Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment. g) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements. h) 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 hazardous waste contamination.

Reason: To ensure that all demolition works are carried out in a satisfactory manner so as to protect the safety and health of the public and to prevent pollution of air, soil and water.

47 Disposal of soil Any soil proposed to be disposed off site is to be tested to ensure that it meets the criteria set out in "Environmental Guideline - Landfill Disposal of Industrial Wastes, WD-3", prepared by the Environment Protection Authority. Any soil, which fails to meet the criteria, is not to be disposed of off site unless agreed to in writing by the Environment Protection Authority. Results of the testing are to be forwarded to Leichhardt Council and the Environment Protection Authority for acknowledgment before any off-site disposal and before proceeding with any construction works. Reason: To ensure protection of the environment and to ensure adequate levels of health and amenity to the occupants of the premises or any building erected thereon.

48 Contaminated liquid waste Any contaminated liquid wastes or runoff to be discharged into the stormwater or sewerage system should be done so in accordance with the requirements of the responsible government authorities (ie Environment Protection Authority and Sydney Water). Reason: To ensure the protection of the environment .

49 Underground tanks All underground tanks if found on the site are to be abandoned in accordance with the Regulations of the Dangerous Goods Act. Reason: To ensure the safety of occupants of the premises and for the protection of the environment.

50 Removal of hazardous materials All hazardous materials are to be removed from the site in accordance with the requirements of the relevant legislation, codes, standards and guidelines, prior commencing with any demolition works.

All hazardous materials are to be disposed of at an approved waste disposal facility.

Prior carrying out any asbestos removal works, full details complying with the relevant provisions of all relevant Acts are to be submitted to Council on the method of containment and control of emission of fibres to the air. The proposed methods of containment and control of fibres are to be to the satisfaction of Council.

Reason: To ensure the safety of occupants of the premises and for the protection of the environment.

51 Asbestos removal All asbestos removal and transportation works are to fully comply with the requirements of WorkCover NSW and the Environment Protection Authority, as well as the "Code of Practice for the Safe Removal of Asbestos (NOHSC:2002 (1988))" prepared by the National Occupation Health and Safety Commission. The requirements of WorkCover NSW and the Environment Protection Authority are to be obtained before proceeding with the removal of any asbestos. Reason: To ensure the safety and health of occupants and visitors to the premises and for the protection of the environment.

52 Completed removal of asbestos Following the removal of any asbestos, a clearance is to be obtained to certify that no asbestos products remain on-site. A copy of the clearance is to be forwarded to, and acknowledged in writing by Council, prior proceeding with any works. Reason: To ensure the safety and health of occupants and visitors to the premises and for the protection of the environment.

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.

Prior to the commencement of work, the approved plans must be submitted to the appropriate Sydney Water Office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be appropriately stamped.

Council or the accredited certifier must ensure that Sydney Water has stamped the approved plans before work commences on site. Conditions that must be complied with during construction

Demolition, excavation, building or subdivision work associated with the proposed development shall be restricted to the hours of 7.00 a.m. to 5.30 p.m. Monday to Friday inclusive, 7.00 a.m. to 1.00 p.m. Saturday. Work is not to be carried out on Sunday or Public Holidays.

Debris and rubbish must be hosed down and kept damp to prevent dust nuisance, and waste materials must not be burnt on the site.

Demolition must be carried out to AS2601-1991 Demolition Code.

Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.

Noise levels during the demolition and construction stages must comply with the Environmental Protection Authority's Environmental Noise Control Manual and the Protection of the Environment Operations Act 1997.

Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.

57 Storage of building materials Building materials are to be located wholly on site and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system.

58 Un-impeded public access Construction material and vehicles shall not block or impede public use of footpaths or roadways.

59 Encroachments & Survey Certificate No portion of the proposed structure shall encroach onto the adjoining properties.

All footings and walls adjacent to a boundary must be set out by a registered surveyor. On commencement of brickwork or wall construction a Survey and Report must be submitted to the Principal Certifying Authority indicating the position of external walls in relation to the boundaries of the allotment.

Reason: To ensure that the building is erected in accordance with the approval granted and within the boundaries of the site, and that existing amenity, structural integrity and functionality of adjoining premises is maintained.

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

Reason: To ensure no injury is caused to persons and to the existing and likely future amenity of the area.

61 Noise control during construction and demolition For construction and demolition periods of 4 weeks or less the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 20dB.

For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 10 dB.

62 Construction materials and machinery must be kept on site All construction materials, sheds, skip bins, temporary water closets, spoil, etc, shall be kept within the property. No vehicles, skips or machines shall be permitted to stand on Council's footpath.

Reason: To preserve the amenity of the locality and to protect stormwater systems from pollution. 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 issued for the class 2-9 buildings, or a completion inspection, has been satisfactorily carried out for class 1&10 structures. The use of the non residential areas within the building will require the lodgement of a development application for the use of these premises prior to occupation.

Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979.

(a) Prior to issue of an Occupation Certificate and/or prior to occupation of the development, a dilapidation report shall be submitted to the Principal Certifying Authority, and a copy submitted to Council, AND

(b) Prior to the issue of an Occupation Certificate and/or prior to occupation of the development , the Principal Certifying Authority must be satisfied that no damage has been done, or that what damage has been done, has been rectified or that agreement has been reached to rectify damage with the affected owners, in accordance with the dilapidation reports required by this consent. It should be noted that resolving any dispute with regard to any damage or defects found during construction is a private matter between the individual parties.

Reason: To ensure that any damage to adjoining property is rectified following building work and prior to occupation

Prior to the issue of an occupation certificate the developer shall furnish the Council with a schedule of individual unit/street numbers allocated to the units within each block of units, that are otherwise to be in accordance with the street numbering approval letter issued by Council.

A compliance certificate or documentary evidence from an appropriately qualified person shall be provided to the Principal Certifying Authority when the relevant work has been completed and prior the issue of an occupation certificate, to the effect that:

· erosion controls have been implemented as required in the development consent. · the building has been set-out by survey in accordance with the requirements of the development consent. · at completion of the lowest floor the levels reduced to AHD comply with the levels approved in the development consent. · stormwater drainage has been constructed in accordance with the terms of the development consent. · any discharge to the sewer from the subject premises is in accordance with the requirements of the Trade Waste Section of Sydney Water Corporation Ltd. · all work in connection with the occupation or use of the premises for the preparation, display and storage of food has been carried out in accordance with the terms of the development consent. · the acoustic qualities of the building comply with the requirements of AS 2107 - 1989. · the noise from all sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation and/or the refrigeration system complies with the terms of the development consent. · the landscape works have been completed in accordance with the detailed landscape plan approved in conjunction with the construction certificate. · Building works and associated development have been constructed in accordance with the development consent and Construction Certificate. Reason: To ensure compliance with the development consent.

67 Upon completion of all drainage works, work-as-executed plans with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to verify that the required drainage works have been constructed in accordance with the approved design, prior to the issue of the Occupation Certificate .

68 A covenant shall be created under Section 88E of the Conveyancing Act 1919.

The terms of the 88E instrument with positive covenant shall include, but not be limited to, the following:

a) The Proprietor of the property shall be responsible for keeping clear, and the maintenance of all pits, pipelines, trench barriers and other structures.

b) The Proprietor have the on-site stormwater detention facilities ("OSD") inspected annually by a competent person.

c) The Council shall have the right to enter upon the land referred to above, at all reasonable times to inspect, construct, install, clean, repair and maintain in good working order all pits, pipelines, trench barriers and other structures in or upon the said land which comprise the OSD or which convey stormwater from the said land; and recover the costs of any such works from the proprietor.

d) The registered proprietor shall indemnify the Council and any adjoining land owners against damage to their land arising from the failure of any component of the OSD, or failure to clean, maintain and repair the OSD. The proprietor or successor shall bear all costs associated in the preparation of the subject 88E instrument. Proof of lodgement with the Land Titles Office shall be submitted to Council prior to the issue of the Occupation Certificate 69 All delivery vehicles must enter and exit Booth Lane from Nelson Street only. Delivery vehicles must therefore exit the off-street car parking area in a forward direction. A sign must be installed in the basement car parking area, located near the goods hoist, that shall include a diagram showing access to Nelson Street and Booth Street and state "ALL DELIVERY VEHICLES MUST EXIT VIA NELSON STREET". The sign shall be 600mm x 800mm, with a red directional arrow and black text and graphics on a white background. Conditions that are ongoing requirements of Development Consents

70 Annual fire safety statement The owner of the building must certify to Leichhardt Council every year that the essential fire safety measures installed in the building have been inspected and are capable of operating to the required minimum standard. Reason: This condition is to ensure that there is adequate safety of persons in the building in the event of fire and for the prevention of fire, the suppression of fire and the prevention of spread of fire in accordance with the Fire Safety Schedule.

Where a waste or recycling containers for the disposal or recycling of building waste or other materials is to be used, the following requirements shall be adhered to: (a) Waste or recycling containers may only be placed by persons, or companies, holding a current licence from the Council. The licence applies to the owner, or provider, of the waste container.

(b) Only one waste and one recycling container at any time may occupy the road reserve at any property frontage.

(c) The waste and recycling containers shall be placed only on the carriageway (and not on the footpath) parallel to and 450 mm from the kerb so as not to impede flow of water in the gutter or to cause any obstruction to traffic.

(e) The waste and recycling containers shall be NOT WIDER THAN 1.5m and be completely painted in white or yellow colour.

(f) If the waste and recycling containers is to be placed outside a corner property, it shall not be located closer than six (6) metres from the boundary of the cross street. If this would place the waste container beyond the applicant's property, then the prior written consent of the adjacent property owner is required to be obtained.

(g) A deposit of $1,000.00 as a security against damage to Council property shall be lodged with Council for the period of the licence.

(h) A public risk insurance policy shall be held by the licensee in joint names of the licensee and the Council - minimum cover of $10,000,000 - copy to be provided to Council prior the issue of a Construction Certificate.

(i) No asbestos material shall be disposed of into the waste container used for general waste. Specifically marked asbestos / hazard waste containers are required for asbestos and must be covered when not in use.

(j) Waste and recycling containers shall be kept covered when not in use.

(k) All efforts shall be made to ensure that demolition material is recycled and the amount of waste from the site is minimised.

(l) The waste and recycling containers shall stand on the street for a maximum period of 14 days at which time, a replacement bin must be provided.

The amount nominated is current for the 2000/2001 financial year only and is revised each financial year. The amount payable must be consistent with Council's Fees & Charges in force at the date of payment. Reason: To ensure proper removal and legal disposal of waste and hazardous materials, and protection of stormwater systems and to reduce illegal dumping of waste.

72 Access to the off-street loading / unloading area must not be restricted by security doors or intercom access during the business hours approved for the commercial component of the development.

73 All vehicles (excluding delivery vehicles) must enter and exit the site in a forward direction.

74 Pedestrian / fire stair access to the basement car park must be kept clear of obstacles, including parked vehicles, at all times.

75 All off-street parking bays must be used for the sole purpose of parking vehicles.

If council is appointed as the principal certifying authority, the following inspections may be carried out; a) Pre-commencement

d) Framework including floors walls roof. e) Stormwater Drainage Lines

If council is appointed as the principal certifying authority, you will be advised as to the inspections to be carried out.

A compliance certificate or documentary evidence from a appropriately qualified person must be submitted detailing satisfactory compliance with the Building Code of Australia within seven days of inspection to the Principal Certifying Authority. If the PCA is appointed after the 1 July 2004, mandatory critical stage inspections will be required by legislation to be carried out by the PCA (or other certifying authority some cases). A letter of agreement between the person having benefit of the consent and the PCA (if Council or an accredited certifier) will set out the required mandatory critical stage inspections for the class of building. The PCA (or other certifying authority in some cases) must inspect the site on these occasions and an occupation certificate can not be issued unless the required inspections have been undertaken.

Reason: To ensure all works are completed in a satisfactory manner.

No works in connection with this development consent are to be commenced until the applicant: a) Has had detailed plans and specifications endorsed with a construction certificate;

b) Has appointed a Principal Certifying Authority; and

The applicant may appoint the Council or an accredited certifier as the principal certifying authority for the development.

If the principal certifying authority is not the Council, then the person so nominated must provide an acceptance of the nomination in writing to the Council. If the principal certifying authority is the Council, the nomination 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.

For the duration of any work on site, the builder must maintain a copy of the specification, stamped approved plans, copy of Development Consent and Construction Certificate on site.

A Certificate of Compliance prepared by a licensed electrician shall be submitted to the Council prior an Occupation Certificate being granted to use or occupy the buildings or dwellings certifying that: a) The smoke alarm unit complies with AS 3786 - 1993 Self Contained Smoke Alarms, or is listed in the Scientific Services Laboratory (SSL) Register of Accredited Products - Fire Protection Equipment.

b) The smoke alarm system is connected to the mains electrical power supply and has a stand-by (battery backup) power supply.

c) The smoke alarm system has been installed in the locations indicated on the plan approved by Council. 5. Termite Protection

Termite protection shall be provided in accordance with the requirements of AS.3660.1 Protection of buildings from subterranean termites, new buildings. The proposed method of treatment in accordance with the standard shall be submitted for approval by the Principal Certifying Authority with the application for a Construction Certificate.

This approval does not authorise the interference with or removal of any encroachment upon the subject land by any building or structure on adjoining lands. Rights in this regard are a private matter between landowners and their determination may require a survey and legal advice.

Reason : To ensure no works affect any adjoining properties

7 Performance requirements All aspects of construction shall comply with the applicable Performance Requirements of the Building Code of Australia. Compliance with the Performance Requirements can only be achieved by: (a) Complying with the Deemed to Satisfy Provisions, or

(b) Formulating an Alternative Solution which complies with the Performance Requirements, or

8 The building is classified as having portions of Class 2 (Dwellings), Class 5 (Office), Class 6 (Shop and Restaurant) and Class 7a (Carpark) and has a rise in storeys of 3 under BCA96.

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 : Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437 APPLICANT: PARTIES : Equitibuild Pty Limited RESPONDENT: Leichhardt Municipal Council FILE NUMBER(S) : 10770 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Height bulk scale and streetscape character - Car parking LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LLEP) - State Environmental Planning Policy No 1, (SEPP1) - Residential Development Control Plan, (RDCP) CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) DATES OF HEARING: 18/06/2004 and 4/08/2004 DATE OF JUDGMENT: 08/12/2004

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