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[2004] NSWLEC 50
Land and Environment Court (NSW)
2003-11-07
Mr P, Mr J
Original judgment source is linked above.
The applicant has not provide a proper site management plan of how the project will be controlled, how materials will be delivered to site, where workers will park, where toilets and amenities will be located, how deliveries will be made, provision of temporary power, etc.
We were told by the applicant of No 33 that she plans to utilise helicopters to drop materials on to the site at the higher levels! Where is there mention in their submission of the special permits required for this extremely hazardous practice?
This development application still fails to address the previously advised concerns that residents have regarding the use of the current right of way [i.e. the "upper access"].
The existing driveway is in very poor condition due to damage by previous flooding and landslips, and cannot take heavy construction vehicles or equipment for sustained periods for a development of this size and nature!
118 . According to geotechnical engineer Mr G Kotze, "The Bakers Road area is known within the geotechnical profession to have had a history of instability events, many if not all of which have been associated with poor or inadequate drainage."
119 . The applicants' statement of environmental effects contains the following: 4.17 Site & Safety Management
A bushland Management Plan is provided with this application.
The physical site characteristics & the limited access have informed the design of the new residences to 29A & 33. Both houses utilise a component type construction, which alleviates the necessity for vehicle access to the site.
During construction, only vehicles of a domestic cars/utilities/4WD nature shall be permitted to use the upper Bakers Road access drive. Appropriate signage shall be installed at the base of this driveway within Bakers Road.
Any construction materials unable to be delivered/moved by such vehicles shall be either: a) offloaded on Bakers Road proper and lifted to site by a materials hoist temporarily installed up the embankment; or b) air lifted to site via approved materials handling aircraft.
Site sheds, facilities, storage shall be located within the site boundaries. The necessary permits for the temporary materials hoist & waste bin on the Bakers Road reservation shall be sought from Council.
To minimise site disturbance, the construction is to occur in stages: 1. The driveway is to be constructed first so as to provide a materials storage area; 2. The inclinator is to be constructed with a modified platform to facilitate materials handling; 3. The proposed access bridges to the new houses are to be constructed so as to provide access to the house sites on Nos 29A & 33; 4. The ground floor of the proposed houses are to be erected next, utilising hand operated augers used to dig pole footings and enable the ground floor structure to be constructed; 5. Remainder of houses built from this ground floor platform. This platform provides a working platform and materials storage area for the remainder of the house to [be] built up off.
120 . This statement of environmental effects was prepared in respect of the original development application that included the erection of a house not only on No 29A but also one on No 33. However, the statement is still relevant to the amended development application. The applicants envisaged that only vehicles of a domestic nature, not trucks, would use the upper access during construction. No mention is made in the statement as to how earth-moving machinery would be brought onto the site, nor as to how excavated material would be removed from the site.
121 . In their letter of objection dated 18 July 2003 Mr and Mrs Fletcher of 39 Bakers Road expressed a strong objection to the proposal because of the impact it could have on the upper access: Impact of Proposed Developments on Existing Driveway The right-of-way [i.e. the upper access] to Nos 29, 31 & 33 also services 35, 37 & 39. This Amended DA still fails to address previously raised concerns about the impact of heavy machinery and trucks used for the proposed construction. This driveway has been subject to two major land slips, once in 1975 and then again in 1987 resulting in considerable expense to residents and Council. The present condition of the driveway is in a failed state and could certainly not cope with the type of use involved in construction on this scale. It is however adequate for light vehicle use. As the amended DA ignores the watercourse which has been the main reason for the driveway's present weakness, the likelihood of its failing altogether is extremely high. As mentioned in our letters to Council on the 11th April and 9th May 1998, this driveway is on Council land and has been constructed by Council. If Council approves of this DA knowing the consequences and without making provision for heavy construction use and watercourse drainage, then we hold Council responsible for replacement when it fails again, which it certainly will.
122 . I have several comments on the above extract from Mr and Mrs Fletcher's letter. First, I accept that there have been two major failures of the embankment of the upper access on the in the past. However, on my inspection of the site, I do not recall the parties pointing out any present failure, but it was obvious that the surface of the carriageway is in poor condition and should be repaired for ordinary domestic vehicular and pedestrian use.
123 . Secondly, the "watercourse" , referred to by Mr and Mrs Fletcher and by other residents in their objections, is a reference to water (during torrential rain) flowing down the gully or depression in the subject land (in the location of the proposed inclinator rail) and then flowing down the corridor of the subject land between No 35 and No 29 and onto or over the upper access. However, the parties conducted this case on the basis that the flow of water that occasional occurs over the subject land does not constitute a "watercourse" under the Rivers and Foreshores Improvement Act 1948. I have previously discussed stormwater problems (par 88 ff above).
124 . Thirdly, having regard to the history of land instability (par 104 above) and the steepness of the embankment, I have a serious concern as to whether heavily laden construction vehicles should be permitted to use the upper access for the scale of development that is now proposed.
125 . In his report dated 7 October 2003 senior engineering geologist Mr Murray (for the applicants) said: Further, it is expected that the narrow width of the access drive will preclude the use of most heavy vehicles during the construction of the proposed developments on the No 29, 31 and 33.
It is our understanding that, during the proposed works, the movements of heavy traffic will be limited to Bakers Road. The movements of materials (including excavated spoil) is to be by way of a temporary inclinator or chute down the slope to Bakers Road or by small-to-medium sized construction vehicles using the access drive. The movement of such traffic is not expected to adversely affect the existing conditions or overall stability of the access drive.
It is recommended that, at the commencement of the construction phase, geotechnical advice be sought regarding positioning of temporary footings for the inclinator/chute on the slope below the access drive. 126 . A massive volume of earth or rock would have to be excavated from the site in order to provide the three double garages, the inclinator waiting station, the excavated channel for the lower section of the inclinator, the manoeuvring area in front of the garages and the driveway to the manoeuvring area. Once the material is excavated it will be in a bulked-up form having a greater volume than its compressed volume prior to its excavation. Depending on the composition of the excavated material, the weights of laden trucks could vary. There was no indication as to the number of trucks that would be required to remove all the excavated material from the site. In the above statement of Mr Murray (par 125), it is apparently accepted that excavated material would not be removed by trucks using the upper access.
127 . Mr Murray's alternative suggestion that excavated material could be conveyed down the steep embankment of the upper access to trucks waiting on the main carriageway of Bakers Road may not be practical. Full details of equipment or machinery to be used and the manner of conveying the excavated material across the carriageway of the upper access and of what the footings or anchoring of the chute would have to be provided before a proper assessment could be made.
128 . In their joint statement, the geotechnical engineers did not provide assistance to the Court as to what loads would be appropriate for construction vehicles on the upper access but merely recommended that the council impose a condition limiting the loads (par 106 above). Draft conditions 101 to 106 were an attempt to deal with the access problems. These conditions leave open for future determination what sort of works (if any) might be needed on the supporting embankment of the narrow upper access, which is the sole means of pedestrian and vehicular access to a number of houses. Having reviewed all the evidence, it seems to me that the preferable course in this case would be for the various investigations or assessments relating to the access to be carried out and neighbours notified before a decision is made to grant development consent (assuming other matters relating to the proposed development are satisfactory). It is true that the upper access to the subject land is part of Bakers Road and under the control of council, as is the main carriageway situated as the base of the steep embankment of the upper access. Nevertheless, the onus is ordinarily on an applicant to establish that the access is suitable or that the applicant can have approved works carried out that will make it suitable.
129 . The above considerations relate mainly to vehicles proceeding along the upper access. Assuming that the gradients of the upper access are changed to be less than 25 percent (par 112 above), I accept that cars will be able to turn into the subject land in one movement. However, in reviewing all the evidence, it seems that there could be a problem relating to the turning circle or swept path of a medium-size truck , turning from the upper access into the proposed driveway on the subject land or vice versa; and the lawful access by large trucks would appear to be impossible. Had the present application been otherwise completely acceptable, it might have been appropriate to reopen the hearing to receive any further evidence or submissions on this point.
130 . The turning-circle problem arises partly from the location of proposed stairs in the upper access at the eastern side of the entrance to the proposed driveway. The proposed stairs in the upper access are best seen on plan DA02E (pt ex B). These stairs would be cut through what is presently a small earth bank projecting across part of the entrance. Allowing for the amendments made by Mr Hardy to the inside kerb at the entrance (par 112 above and ex Z), it would appear that the proposed steps and kerb would project westward from the eastern side of the proposed driveway across the entrance by about 1.7 m. The unobstructed width (where there are no steps) measured perpendicularly between the sides of the proposed driveway is 4.6 m. The fact that the upper access meets the proposed driveway at an angle of about 135 degrees rather than at right angles would allow cars to turn around the projection and into the proposed driveway without encroaching on the front of the adjoining property at No 35 Bakers Road. However, there would appear to be a problem for larger vehicles.
131 . Mr Hardy's plan (ex Z), based on the survey plan (ex C), shows a heavy straight line representing the frontage of the subject land as continuing in the same straight line across the front of No 35. However, as appears from the architectural plans and other plans in evidence, the alignment of the Bakers Road reserve actually changes at the frontage of No 35 and is almost at right angles to the side boundary of the subject land. On the ground, there are no physical markings to delineate the private concrete entrance and driveway of No 35 from the carriageway of the upper access in Bakers Road.
132 . Because of the larger turning circle of a vehicle that is 6 m or 7 m long, such a vehicle may have to turn across the concrete area on No 35 in order to enter the driveway of the subject land. A similar encroachment upon the front north-eastern corner of No 35 may occur if such a vehicle proceeded along the upper access beyond the side boundary of the subject land and then attempted to reverse into the proposed driveway. The further set of stairs within the proposed driveway itself (located about 4 m from the frontage) would also restrict such a reversing movement. For a large furniture-removalist van or other large service vehicle or truck, it would probably be impossible for the large vehicle to enter the subject land, having regard to the relatively narrow carriageway of the upper access and to the projection of stairs across part of the entrance and to the need not to encroach over the front property of No 35 without obtaining a right-of-way. As mentioned earlier, there is no place for a car, let alone a truck, to park on the upper access without obstructing the movement of residents along the access.
133 . Mr and Mrs Bridgewater of 35 Bakers Road submitted to the council a number of detailed submissions opposing the proposed development, and Mr Bridgewater gave oral evidence. As mentioned earlier, the Bridgewaters' property adjoins the western side boundary of the existing access handle to No 33, and their house will be adjacent to the proposed carparking court (including manoeuvring area), driveway and inclinator station. The car parking court occupies an area of about 280 sq m. Rising high above the carparking court is the proposed pole-house at No 29A. In addition to the problems relating to the upper access, the Bridgewaters were concerned about the noise of persons using the inclinator and waiting station, the noise associated with cars accessing or leaving the three double-garages and visitor parking space, the visual impact of the loss of a large number of trees to make way for the carparking court and proposed house, possible stormwater damage, and the of amount excavation.
134 . It seems to me that the pleasant amenity enjoyed by the residents at No 35 would be noticeably diminished by reason of the somewhat unusual and congested elements of the proposed development adjacent to their house, involving large areas of hard surfaces and loss of trees.
135 . The following questions appear under the heading "Hazards" in the council's engineering development control checklist: 3. Does proposal involve excavation equal to or greater than 3.0 m? 4. Does proposal involve excavation equal to or greater than 1.0 m within 1.0 m of boundary, retaining structure or significant tree? Both questions were ticked "No" , but both these answers are incorrect. Excavation will be as much as 6.6 m deep for the proposed garages, as agreed in a joint report of the experts (par 54 above). The excavation only 300 mm from the common boundary with No 35 will be up to 4.6 m deep.
136 . In their letter of objection dated 28 July 2003 the Bridgewaters said that a block wall on the side of the proposed driveway would be erected virtually on their boundary and that the plan DA02C was misleading as it showed the wall as being quite low. They said they were petrified by the amount of excavation adjacent to their foundations and that the excavation will have serious implications for the stability and safety of their home during construction (particularly if a severe storm occurs at that time).
137 . The cross-section drawings DA-10A, DA-11A and DA-12A (ex H) show particularly the relationship of the carparking court to No 35. At the rear of the visitor car space, excavation is proposed to a depth of 4.65 m (to the underside of the slab), in order to provide the carparking slab at a level to which a suitable gradient for the driveway could be achieved. This excavation would occur only 300 mm from the common boundary with No 35. At section A on the plan DA-10A, the depth of excavation (by scaling) to the underside of the driveway slab is 2.9 m. Approximately in line with the closest southern corner of the side wall of the house at No 35 (the wall is 900 mm from the common boundary), the underside of the proposed driveway slab is 2.7 m below natural ground level. From the southern corner of the house, the side wall of the house runs parallel with and is set back by 900 mm from the common boundary with the subject land. At section B on plan DA-10A, the depth of excavation reduces to 2.5 m, and adjacent to the front corner of this side wall of the house the depth at the common boundary would appear to be 1.9 m. By reference to the survey plans (ex C), these scaled depths on plan DA-10A should probably be preferred to the depths shown at the boundary on plans DA-11A and DA-12A. (If the driveway gradient on DA-10A is correct, the plans DA-11A and DA-12A would appear to understate the depths of excavation at the common boundary.)
138 . The carrying out of a deep excavation only 300 mm or less from the common boundary with No 35 for the proposed driveway retaining wall poses a risk of collapse of support for the house at No 35, or possible damage to the house through vibrations if rock is encountered at lower levels. The risk could be significantly reduced by having the work supervised by a geotechnical engineer. I think it would be possible to further reduce the degree of risk to No 35 by eliminating the visitor carparking space and increasing the setback of the retaining wall of the driveway from No 35. At about the front alignment of the house at No 35, where the driveway of the subject land opens up into the manoeuvring area, the retaining wall could perhaps begin to curve away from the side boundary so that at about halfway along the sidewall of the house there would be no excavation on the subject land less than about 2 m from the common boundary with No 35, and there would probably be no need to excavate at all about half the area of the visitor parking space.
139 . While it may be desirable to have a visitor car space in the open area of the carparking court, just one space would be inadequate if there were two or more visitors coming to one or more of the three dwellings that the carparking court is intended to serve, if no special arrangement had been made for the visitor to park in a garage. In the circumstances, it could perhaps be argued that it would be better to have no visitor parking in the carparking court other than where an owner has arranged for parking in the owner's garage. The survey plan indicates that the main carriageway of Bakers Road at the base of the embankment widens out to 7.5 m as it proceeds west. The walking distance from the entrance of the subject land down to this wider section of the main carriageway of Bakers Road is about 90 m, and parking could occur there parallel to the kerb for about 5 or 6 cars on the side of the road adjoining the embankment, without the parked cars extending into the turning circle of the cul-de-sac (see aerial photo ex 24).
140 . If an increased setback from No 35 could be provided for the retaining wall, there would be the opportunity for landscaping in the undisturbed area between the common boundary of No 35 and the retaining wall, and a tree or trees could be planted in what was proposed to be the visitor space. If any such changes were proposed, a definite plan would be need to be assessed in the context of the whole of the development then proposed.
141 . I am inclined to the view that he presently proposed development would have too great an adverse impact on No 35.
142 For the above reasons, I am not satisfied on the evidence that the proposed development can be carried out in a satisfactory manner.
143 . Accordingly, the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits may be returned, except exhibits 1, B, C, E, G, H, Z and AD.
A J Nott Commissioner of the Court [Annexure A attached] ANNEXURE A
"Without Prejudice" DRAFT CONDITIONS 29-33 Bakers Road, Church Point
This Consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.
1AA Within 12 months of the date of this consent, the applicant shall submit to Council a report by a qualified structural engineer and a report by a qualified geotechnical engineer/practitioner, demonstrating:
a) The geotechnical conditions along the alignment of the proposed right of carriage way including the inclinator access and associated stairs;
b) A detailed construction sequence and construction methodology, including OH & Safety Plan and geotechnical inspection programme for the proposed car park, stairs and inclinator channel excavations. The construction sequence should include details of proposed methods of temporary shoring or approved batters (if required) within the proposed excavations;
c) Engineering details of the permanent retaining structures to support earthworks, the natural soil profile and/or highly to extremely weathered rock exposed within the proposed excavations and details of drainage control measures through the proposed retaining structures; d) All fill, soil and extremely to highly weathered rock horizons on both sides of the access corridor containing the inclinator and stair should be subject to either engineered earthworks and drainage control or to appropriate retention measures to ensure adequate levels are maintained within and along the inclinator/drainage route.
e) The design of the slope support measures and foundations for the steps and inclinator shall take into account both geotechnical and stormwater conditions along the alignment of the proposed right of carriage way and shall be undertaken by a suitably qualified and experienced geotechnical engineer;
f) Details of the stabilisation or removal method of the potentially unstable fractured sandstone rockmass located on the cutting at the southern (upper) end of the proposed right of carriage way and near the southwest corner of No. 31 Bakers Road. The subject rockmass is to be stabilised or removed prior to commencement of the construction or development works within the access corridor below;
g) Confirmation that the works referred to in (b), (c), and (d) will be taken wholly within the right of carriageway notated on the proposed plan of subdivision and in particular, will not involve any works nor any impact on adjoining properties;
h) Confirmation that the works referred to in (b), (c), and (d) will not require removal of any tree other than those identified in an agreed joint statement of Nick Skelton and Kyle Hill (exhibit *) in the Land and Environment Court Proceedings 10319 of 2003. This confirmation is to be provided by a qualified arborist or horticulturist;
1A. To support the geotechnical feasibility of constructing a residence on Proposed Lot 3 (No.33 Bakers Road), a hydrological assessment and stormwater management plan shall be provided to confirm that all stormwater collected from No. 33 including run - off from any overlying catchments (s) can be suitably piped or discharged away from No. 33, and that that discharge is able to be accommodated within the proposed right of way and services corridor and private drainage system to Council's drainage system in Bakers Road , including any detention system provided. Upon Council notifying the applicant in writing that the information referred to in deferred commencement conditions 1AA & 1A has been submitted and that it is satisfied as to its content, then the consent shall commence from the date of that letter.
All works are to 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, there is to be such a contract in force.
B. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE NOTE: The issue of partial or limited Construction Certificates is not permissible under the terms of this consent unless otherwise specifically stated. All outstanding matters referred to in this section are to be submitted to the accredited certifier together.
The development shall be carried out in accordance with the following as amended by the conditions of this consent: (1) DA plans 02E and 03C (ex B), 05C and 06B (ex G), 10A to 12A (ex H), 18B (ex AD) prepared by Nicholas Associates Architects Pty Ltd and plan ex Z, and proposed plan of subdivision prepared by MBS Green PL Reference A3 M6256A (M5620) dated 31.10.03 (2) Statement of Environmental Effects, prepared by Nicholas Associates, dated September 2002 (insofar as it is not in conflict with the above plans or the conditions of this consent) (3) Flora and Fauna Assessment Reports for 29, 31 and 33 Bakers Road prepared by Conacher Travers dated July 2002 and October 2003. (4) Bushland Management Concept Plan for 29, 31 and 33 Bakers Road, prepared by Conacher Travers. (5) Tree Survey, Assessment and Arborist Report prepared by "Growing My Way" Tree Services dated July 2002. (6) Landscape Strategy Report prepared by William Ashton, Landscape Architect, dated August 2002. Revised Landscape Concept Plan, dated October 2003, Dwg No 0201 - 1A prepared by William Ashton, Landscape Architect. Geotechnical assessments prepared by Douglas Partners Pty Ltd dated May 2002, June 2003, and October 2003, and the joint report prepared for Land and Environment Court Proceedings No 10319 of 2003 by G. P. Kotze and D. E. Murray dated 28 October 2003.
Three copies of certification from a qualified Acoustic Engineer, are to be submitted at the time of the lodgement of the Construction Certificate application certifying that: (a) [deleted] (b) the inclinator will not be heard within a habitable room in any other residential premises (regardless of whether any door or window to that room is open) before 8 am or after 8 pm on any Saturday, Sunday or public holiday, or before 7 am or after 8 pm on any other day. {Objected to by the applicants.}
A detailed Construction Works Management Plan is to be submitted with the Construction Certificate.
Three copies of a detailed Bushland Management Plan covering weed removal, regeneration, revegetation, restoration of the site and on going maintenance, as well as the appropriate management of the vulnerable Red-Crowned Toadlet and the Lilli Pilly habitat, are to be submitted prior to the release of the Construction Certificate for the approval of Council's Natural Resources Unit. The Bushland Management Plan is to be accompanied by a certification by an appropriately qualified Bushland Management Consultant stating that the Bushland Management Plan is consistent with the Department of Infrastructure Planning and Natural Resources' Bushland Management Guidelines, Council's Landscape Management Strategy DCP 23, Council's Biodiversity DCP 25, the Management Plan for Threatened Flora and Fauna in Pittwater, the Bushland Management Concept Plan, the Threatened Species Conservation Act 1995 (NSW). In particular, the following matters are to be provided: (1) Define each project task to be undertaken during regeneration/ revegetation/ restoration; how each task will be done; the duration of each task; the priority order for each task; and who will be responsible for undertaking each task. (2) Prepare a timeframe for all tasks involved. (3) Local native species to be used - identify local native plant stock source. (4) Prepare maps/ diagrams and plant species lists including existing vegetation, site constraints and trees, vegetation, habitat, bush rock and other natural features to be retained and the location of underground/overhead services (5) Prepare maps/ diagrams including proposed vegetation (species/ communities), density of planting, size of plants (virocells, longstems, tubestock, etc), sediment and erosion control to protect the vegetation, etc. (6) Prepare maps/ diagrams including retained bushland, fire protection zone, , or corridors/ linkages, etc. (7) Specify techniques to be used for domestic animals (including dogs and cats) and feral animal management. (8) Specify fire prescriptions that will be applied to maintain the ecology of the site. (9) Detail site preparation, including: a. Measures to ensure protection of trees, vegetation, habitat, bush rock or other natural features to be retained b. Installation of sediment and erosion control devices c. Measures to ensure completion of any site works (if any) d. Weed control prior to site disturbance (techniques and sequences of removal) e. Weed control immediately following completion of site works (techniques and sequences of removal) f. Application of herbicides (if any) prior to site disturbance g. Application of herbicides (if any) immediately following completion of site works h Soil remediation i. Surface preparation (including levelling, deep ripping, scarifying, mulching) j. Surface stabilisation (must be suitable for the site vegetation) - matters including erosion matting, mulch, brush matting, sterile cover crops, binding sprays k. Site drainage. (10) Planting program and method including installation of weed matting, mulch, stakes and ties, tree guards, use of fertiliser and type (including justification of use of fertiliser). (11) Site and vegetation maintenance including sediment and erosion control, watering, replacement of plant losses, disease and insect control, mulch, maintenance for a period of 2 years commencing at registration of the subdivision. (12) Site management to prevent the placement of soil or storage of any materials in the drip line of trees or native vegetation or habitat to be retained on the site. (13) Monitoring and review (develop method for performance evaluation, replacement of plant losses maintenance and other relevant matters). (14) Other issues including public safety, signage, relevant legislation, planning instruments/ guidelines, and OH&S (15) Detail the enhancement and regeneration of retained remnants. Where thickets of noxious or environmental weeds are to be removed, such removal is to be gradual and staged to prevent a sudden complete loss of habitat. (16) Identification of protection of trees, vegetation, habitat, bush rock or other natural features, prior to works commencing on the site to prevent damage or injury during development. (17) Materials, stockpiles and vehicle stockpile areas are to be located on already cleared and disturbed land well away from creek line, trees, vegetation, habitat, bush rock or other natural features. (18) Feasible mechanisms to ensure the retention of bushland as stated and assessed. This may involve annual monitoring, a bond and inclusion of Bushland Management Plans in the 149 certificate of the title of the properties. (19) The retention of fern undergrowth, logs, leaf litter, surface rocks, potential breeding habitat and retention of natural water flows in the location of the habitat area shown in red on Map 1 (Plan No 112:01 DA01 Rev E by Nicholas and Associates as modified by Mr Skelton and Mr Conacher). There must also be no disturbance due to paths, landscaping, earthworks, or connection of utilities in this area. (20) Details of a detailed search for Red-Crowned Toadlets, fencing during construction, instructions to site contractors to prevent disturbance, site attendance by an ecologist to relocate any Toadlets that may be found during excavation for the inclinator, monitoring and any other measures necessary. Requirements for bushfire hazard protection are not to take precedence in this area. 7A. The approved Bushland Management Plan shall be complied with. A requirement to adhere to the Bushland Management Plan is to be added to the section 149 certificate and/or section 88B instrument on the title of the property known as No 33 Bakers Road and is to apply to future Development Applications made in respect of this Lot.
7B. Any building envelope for a future house on No 33 Bakers Road is to be located to the west of a line across the property level with the trees numbered 35 and 36 on Plan No 112:01 DA01 Rev E by Nicholas and Associates to protect the identified habitat areas of the vulnerable Red Crowned Toadlet and the Lilli Pilly. This condition is to be added to the section 149 certificate and/or section 88B instrument on the title of the property known as No 33 Bakers Road and is to apply to future Development Applications made in respect of this Lot.
Three sets of engineering details showing on-site stormwater detention , are to be submitted prior to release of the Construction Certificate. Such details are to be accompanied by a certification by a qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, confirming that the plans/details comply with Council's Policy and Guidelines for the on-site detention of stormwater- Feb 1996. The details shall include disposal of the site stormwater from the OSD facility to a public drainage system ( i.e. kerb and gutter or natural watercourse. ) The details shall be in accordance with the recommendations of the submitted geotechnical engineer's report referred to in condition 1AA of part AA of these conditions .
Three copies of a Certificate are to be submitted by a qualified Engineer with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a Corporate member and has appropriate experience and competence in the relevant field, confirming to the satisfaction of Council or the accredited certifier that the proposed means of access to the site is safe for all likely users, and the access within the site complies with Council's policy DCP E3 "Driveways and Internal Roadways".
Three copies of a Certificate are to be submitted by a qualified Engineer with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a Corporate member and has appropriate experience and competence in the relevant field, confirming to the satisfaction of Council or the accredited certifier that the proposed means of access over the related common private driveway within the road reserve of Bakers Road, is safe for all likely users.
Provision of a common passing bay within the front boundary of Lot 1 (No. 29 Bakers Road) for users of the common driveway within the road reserve of Bakers Road. (a) Street Levels must be obtained from Council for all access driveways across the public road verge to road edge. The street levels provided by Council must be incorporated into and attached to design plans for the access driveway and internal driveway. (b) A Deed of Agreement indemnifying Council must be entered into for construction of a cosmetic access driveway i.e. other than a plain concrete finish, within the public road reserve. (c) All construction of the access driveway must be undertaken by a Council authorised contractor. (d) Council's Fees and Charges apply to Street Levels and Deed of Agreement for Access Driveway.
(e) A positive covenant is to be created on the title of the property known as 29 Bakers Road to create a right-of-way in favour of Council over the passing bay shown in plan DA01 rev E (referred to in condition 3 of this consent).
15AA Gutters and valleys to the dwelling on Lot 4 shall be leaf proofed by the installation of an external gutter protection shroud or a gutter system that denies all leave from entering the gutter and building up on that gutter or valley. Any material used in such a system should have a flammability index of no greater than 5 (as measured against AS1530.2).
15A A hydrological report on the existing town water supply must be submitted to the Council complying with the requirements of AS2419 Installation of Fire Hydrants prior to the issue of a construction certificate.
15AB. In the event that AS2419 can not be fully satisfied then the on-site water towers (2x12,000L) shall then be used as a dedicated fire fighting service. A specification detailing these matters would then be required to be prepared and submitted to Council and the Rural Fire Service for approval prior to the issue of the construction certificate.
15AC. The vegetation on the site is to be managed consistent with "Guidelines for Asset Protection Zones", a publication by the New South Wales Rural Fire Service that provides for the following: (1) Tree canopy must not overhang within 5 metres of the roof to prevent the build up of leaf matter. (2) Vegetation is not to provide a path for the transfer of fire. (3) The majority of leaves and ground cover must be removed from the area under the dwelling. (4) Clumps of native trees and shrubs may be retained as clumps or islands covering at least 20% of the area. Any clumps of vegetation should be a maximum of 2 metres in diameter. (5) Vegetation must be located so that plants will not ignite the house by direct flame contact or radiant heat emission. (6) The amount of ground fuels around the property consisting of leaf litter and ferns must be reduced so that the fuel does not provide a path for the transfer of fire.
15AD. Any fencing must not include "brushwood" type fencing material.
15AE. An access stairway adjoining the inclinator is to be provided so as to allow alternate access to properties Nos 29A, 31 and 33 in the event of an emergency or power failure to the inclinator. The stairway is to be constructed in accordance with the Building Code of Australia and should not be obstructed by the inclinator.
16A. Three sets of detailed landscape working drawings, which comply in all respects with the conditions of development consent, are to be submitted prior to release of the Construction Certificate. Each plan/sheet is to be certified by a qualified landscape architect, landscape designer/environmental designer or horticulturist, confirming that the plans/details provide for the works to be carried out in accordance with the relevant provisions of Development Control Plan No 23 - Landscape and Vegetation Management. In particular, the landscape working drawing is to provide full details of the following: (1) the usage of the dominant tree species growing in the area or locally indigenous species; (2) all existing trees and vegetation to be retained, removed and proposed, including canopy spread, trunk location and condition; (3) a plant schedule including stratum, species/common names, species' numbers, pot size and staking details; (4) a schedule of materials (including such elements as, edging, walling, paving and fencing); (5) the proposed finished treatment of landscaped areas, including soil depth and mulching details; (6) the location of underground/overhead services; (7) details of irrigation and any on-slab planting; (8) details of any automatic watering systems; (9) timber paling fencing having a height of 1.8 metres is to be provided with 100mm high and 300mm holes every 10 metres, so as to address issues of privacy between the common garage parking court and No.35 Bakers Road and fauna access; (10) timber paling fencing is to be provided above the concrete block wall having a total height of 1.5 metres, so as to address issues of visual privacy between the common garage parking court and No.29 Bakers Road; (11) suitable view screen planting along the inclinator corridor, which meets the bushfire hazard reduction conditions in this consent, so as to afford a sufficient level of visual privacy to the dwelling to screen the inclinator from over-viewing No.35 Bakers Road; (12) at least four (4) canopy trees within the front yard of No.29 Bakers Road, which at maturity achieve a canopy height greater than 8.5 metres, to visually reduce the height, bulk and scale of development on lots in the subdivision and to reinforce the Pittwater Spotted Gum Forest Community canopy in the locality; (13) understorey planting of species growing in the area or locally indigenous species, which, after three years will in conjunction with the canopy planting screen 50% of the habitable floor areas of the northern elevation of Nos. 29 and 29A Bakers Road, and vegetation to be retained, removed and proposed, including canopy spread, trunk location and condition. (14) The development is to be phased so that the land disturbance is confined to areas of workable size. Further, stabilisation measures are to be finalised in the first section, before works commence in the next section. Further, all disturbed areas which would otherwise remain exposed for 30 days or more are to be treated with an organic mulch or, on steep sites, an erosion control mat and nylon netting. Three sets of full details in this regard are to be included in the Construction Certificate details. 16 The Landscape Rehabilitation Plan for the Northern Area of No 29, referred to in the Revised Landscape Concept Plan dated October 2003, Dwg No 0201 - 1A, prepared by William Ashton, Landscape Architect., must be submitted and approved by Council.
Prior to issue of the Construction Certificate, details are to be submitted to Council or the Accredited Certifier that address all of the recommendations and specifications contained in the geotechnical reports referred to in conditions 1AA and 3.
Council's Form 2 of the "Geotechnical Risk Management Policy for Pittwater" is to be completed and submitted with the above details before issue of the Construction Certificate. C. MATTERS TO BE SATISFIED PRIOR TO COMMENCEMENT OF WORK
NOTE: It is an offence to commence works prior to issue of a Construction Certificate.
Prior to commencement of site works, a qualified experienced bushland management consultant is to certify that they have been engaged to conduct a program of Bushland Management covering the regeneration/ revegetation/ restoration of the site. All details of the Bushland Management Program are to be in accordance with the Bushland Management Strategy approved and/or nominated on the Construction Certificate.
In particular, the following matters are to be certified as being completed in accordance with the Bushland Management Plan/ Strategy approved prior to Construction Certificate: (1) A preorder or evidence of supply of local native plant material to be used identifying local native plant stock source is to be submitted to Council or the accredited certifier. Failure to submit will involve breach of this consent / approval. (2) A qualified ecologist is to certify that protective fencing has been installed around the trees, vegetation, habitat, bush rock or other natural features to be retained. (3) The Site Manager is to certify that sediment and erosion control devices have been installed. (4) A qualified experienced bushland management consultant is to certify that the weed control required prior to disturbance of the site has been completed in accordance with the techniques and sequences of removal weed control in the BMP. (5) A qualified experienced bushland management consultant is to certify that application of herbicides required prior to disturbance of the site has been completed. (6) The Site Manager is to certify that the top soil/ litter layer storage has been completed. (7) The Site Manager is to certify that the soil remediation has been completed. (8) The Site Manager is to certify that the surface preparation has been completed. (9) A qualified experienced bushland management consultant is to certify that surface stabilisation suitable for the site vegetation has been completed. (10) A qualified experienced bushland management consultant is to certify that site drainage has been completed. (11) The Site Manager is to certify that no soil or storage of any materials has been placed in the drip line of trees or native vegetation or habitat to be retained on the site. (12) The Project Manager is to certify that other issues including public safety, signage, relevant legislation, planning instruments/ guidelines, and OH&S requirements have been addressed. (13) A qualified experienced bushland management consultant is to certify that the thickets of noxious or environmental weeds have been removed gradually and staged to prevent a sudden complete loss of habitat. (14) The Site Manager is to certify that materials, stockpiles and vehicle stockpile areas are located on already cleared and disturbed land well away from creek line, trees, vegetation, habitat, bush rock or other natural features.
A certificate prepared by an appropriate qualified person is to be submitted for the following building components: Building setout (re: house on No.29A Bakers Road, garages, inclinator, driveway), Erosion Controls (as above), and Protection fencing (landscaping) -, certifying to the satisfaction of Council or the Accredited Certifier that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until Council or the Accredited Certifier has confirmed that this condition has been satisfied. Where this confirmation of compliance is issued by a private certifier, for the purposes of keeping a public record, a copy of the letter is to be forwarded to Council within 5 working days of the date of issue.
Prior to commencement of work, the applicant is to supply Council/Accredited Certifier and relevant adjoining property owners with a dilapidation report relating to all adjoining houses, including 27A, 29, 31 and 35 Bakers Road.
Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at least seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work.
Prior to commencement of site works, a qualified arborist, horticulturist or landscape architect is to certify that protective fencing consisting of chain wire mesh fencing, a minimum 1.5 metres high with steel pipe support posts has been provided, a minimum distance of 1 metre outside of the dripline of those trees, areas of bushland or landscaped areas shown on the approved landscape working drawing as to be retained. No further site works are to take place until this certification has been obtained and a copy forwarded to the accredited certifier or Council.
Where the project is being supervised by a private certifier, for the purposes of keeping a public record, a copy of the certification is to be forwarded by the certifier to Council within 5 working days of the date of issue.
Further, the project manager is to erect signs advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees to be retained.
Prior to commencement of works, at least three photographs of the road reserve and footpath area adjoining the site, one front-on and one from each side of the property, are to be submitted to Pittwater Council with the notification of commencement of works, showing the condition of the street trees and road reserve. The photographs must be dated, and accompanied by a statement that they are a true and accurate representation of the scene depicted.
A separate development application is to be made for the construction of a dwelling house on proposed Lot 3 (No. 33 Bakers Road). NOTE: No approval is given for the indicative residence footprint on Lot 3 and the footprint is deleted.
32A. Prior to the commencement of works, the applicants are to appoint a supervising geotechnical engineer, being Douglas Partners Pty Ltd or G HD LongMac Pty Ltd, or such other suitably qualified geotechnical engineer to Council's satisfaction, to supervise and certify the carrying out of all works referred to in the Parts AA and G of this consent.
D. CONDITIONS TO MINIMISE THE IMPACT OF THE DEVELOPMENT ON THE NATURAL AND BUILT ENVIRONMENT
The visitor space is to be marked and sign-posted and kept clear and available at all times; 34 Services to the Lots under this Consent are to be suspended along the alignment of the inclinator. Utilities are not to go through areas of bushland to be retained or within the drip zone of trees to be retained.
The applicant is to contact the various supply and utility authorities, i.e. Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.
The Project Manager is to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with Council. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent Council from issuing the Occupation Certificate or the Building Certificate.
All parking areas and driveways are to be sealed to an all weather standard, suitably line marked, allocated user identified and properly maintained for the life of the development.
Water conservation devices with an AAA rating must be installed, including tap flow regulators, shower head roses and dual flush toilets. All new hot water systems are to have a minimum rating of 3.5 stars.
The Erosion and Sedimentation Management Plan approved prior to the Construction Certificate must be complied with at all times.
All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner.
The footpath and adjacent roadway is to be kept free of obstruction by building materials and/or plant without Council's prior written approval. All concrete trucks, pumps and associated plant are to be kept wholly within the site. No concrete or slurry is to be discharged into the street or the street drainage system.
If approved works are likely to cause pedestrian or vehicular traffic in a public place to be obstructed or if works involve the enclosure of a public place, then a hoarding or fence must be erected between the work site and the public place.
If necessary, an awning or other structure is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Further, 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 such hoarding, fence or awning is to be removed when the work has been completed.
NOTE: Hoardings and temporary awnings erected on or over public places are required to be subject to a separate approval from Council.
A sign is to be erected in a prominent position on the site stating that unauthorised entry to the work site is prohibited and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. No sign is required where works are internal only or where the premises are occupied continuously during and outside working hours. 53. Toilet facilities are to be provided at or in the vicinity of the work site during the duration of the development.
A stamped copy of the approved plans is to be kept on the site at all times, during construction.
All plumbing and drainage fixtures are to be concealed and not exposed to public view on buildings over one storey in height.
Timber log retaining walls are not permitted and are not to be included in the proposed development. Details of land fill behind retaining walls to be provided.
No open solid fuel/wood burning fireplaces and stoves permitted other than those that comply with AS 4013-1992. Open fireplaces and/or timber fuel burning stoves are not permitted.
The installation of in-sink food waste disposal units is prohibited due to the increased loading placed on the Warriewood Sewage Treatment Plant particularly during wet weather.
All external glazing is to have a maximum reflectivity index of 25%.
The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.
Use of the inclinator being restricted to a total of 24 movements per day during 7am and 10pm time period and two movements between 10pm and 7am (except in emergencies). The maximum noise level associated with the inclined passenger lift is not to exceed 60dB(A), when measured one metre from any adjoining residential building.
No storage of building materials or building waste, excavated fill or topsoil storage is to occur within the dripline of trees shown on the approved landscape working drawing(s) as being retained or within protective fenced areas. No fill is to be introduced in the area of native vegetation or habitat remaining on the site. Drainage is to be arranged such that fill, building materials or contaminants are not washed into protective fenced areas. Further, the project manager is to erect signs advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees.
In the interests of fauna habitat conservation, the keeping of domestic cats on properties is discouraged and it is recommended that dogs be restricted to within the building at night and otherwise to be either within a fenced compound on the lot or on a lead and if kept, cats be restricted to within the building at night.
All declared noxious weeds under the Noxious Weeds Act 1993 together with other environmental weeds are to be removed and/or controlled using an appropriate technique.
All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans and if any Aboriginal Engravings or Relics are unearthed during construction all work is to cease immediately and the Metropolitan Local Aboriginal Land Council (MLALC) and National Parks and Wildlife Service (NPWS) are to be notified.
The development is not to result in the redirection of surface water onto any adjoining property.
All stormwater is to be piped to the Council street drainage system in Bakers Road.
The removal or destruction of bush rock has been listed as a Key Threatening Process under the NSW Threatened Species Conservation Act, 1995. No bush rock is to be removed or destroyed or buried without prior consultation and approval by NSW National Parks and Wildlife Service and Council.
The developer or contractor will take all measures to prevent damage to trees and root systems during site works and construction activities including provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 5 metres of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained, is not permitted.
NOTE: Trees that are part of an Endangered Ecological Community or are habitat for threatened species and endangered populations must comply with the requirements of the Threatened Species Conservation Act, 1995. Failure to do so may result in a penalty up to a maximum of $250,000.00 and jail sentences.
Failure to comply with the requirements of the Pittwater Council Tree Preservation and Management Order may result in a penalty up to a maximum of $20,000.00 .
All works within 5 metres of the existing trees to be retained including pruning, demolition, excavation, civil works, fencing and the like must be carried out by hand under the supervision of an experienced and qualified Arborist. Should roots larger than 50mm be encountered all excavation works are to cease immediately and a qualified Arborist is to advise on the impacts of the roots' removal on the tree's survival and report to Council's Landscape Architect.
If tree roots are present a pier and beam method of footing construction is to be adopted so as to bridge/span any identified lateral roots.
When working within the drip line of the trees, hand digging is to occur in sensitive areas. Liaison on a daily basis is to be maintained during the excavation works between the Builder and Arborist. No filling or compaction shall occur over tree roots within the area defined by the outer drip line of the crown. Root protection/ compaction mitigation in the form of planks or metal decking supported clear of the ground fixed to scaffolding is to be installed as required.
Advise contractors and visitors to the site of the purpose for the tree/ native vegetation/ habitat protection/exclusion fencing installed in accordance with this consent by the placement of a suitable warning sign.
The removal of trees on Lot 3 (No.33 Bakers Road) is to be further considered in relation to the subsequent development application for the house on the lot and no trees within the designated building envelope are to be removed as part of the subdivision works.
A site fence and/or silt and sediment control fence is to be erected and maintained during the course of works along any street frontage boundary to the site.
A clearly legible "Site Management Sign" is to be erected and maintained throughout the course of works on the site. The sign is to be centrally located on the main street frontage of the site and is to state in clearly legible lettering the following: - - Builder's name, builder's telephone contact number during work hours. - A site fence and/or silt and sediment control fence is to be erected and maintained during the course of works along any street frontage boundary to the site. - Street levels are to be obtained for the construction of any access driveway crossing between the site and the constructed roadway in accordance with Condition B27. - A Road Opening Permit, issued by Council, must be obtained for any road openings or excavation within Councils Road Reserve associated with the development of the site, including stormwater drainage, water, sewer, electricity, gas and telephone connections etc. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. - No other works are to be carried out in Council's Road Reserve without its approval. - No skip bins or materials are to be stored on Council's Road Reserve.
E. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF OCCUPATION CERTIFICATE NOTE: The issue of interim or partial Occupation Certificates is not permissible within the terms of this consent unless otherwise specifically stated. Prior to the issue of an Occupation Certificate of the proposed garages and house the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.
NOTE: It is an offence to occupy the building or part thereof to which this consent relates prior to issue of an Occupation Certificate.
A certificate prepared by an appropriate qualified person is to be submitted, where relevant, for the following building components: Pest control, Geotechnical requirements, Ground floor levels, Footings/slabs/piers/retaining walls, Bearers and joists and subfloor ventilation, Wall, roof frames and window location, Wet areas, Masonry construction, accessories and weatherproofing, Subsequent floor levels, Stair construction, Balustrading adequacy, Artificial lighting and mechanical ventilation, Roof cladding, Roof ridge levels, Smoke alarms, Site stormwater management, Onsite stormwater detention, Driveway construction, Excavation and/ or filling, Inclinator , Inclinator noise, Landscaping , Bushland Management Strategy , Native vegetation planting, Arborist, BCA certification (parking garages), Structural certification (parking garages, inclinator).
The certificate is to certify the satisfaction of Council or the accredited certifier (on the relevant Council certification forms) that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until Council or the Accredited Certifier has confirmed that this condition has been satisfied. Where this confirmation of compliance is issued by a private certifier, for the purposes of keeping a public record, a copy of the letter is to be forwarded to Council within 5 working days of the date of issue.
Prior to completion of the project, the inclinator rail and support posts are to be painted dark green or similar, to limit its visual impact when viewed from the surrounding area. Where the project is being supervised by a private certifier, for the purposes of keeping a public record, a copy of the report is to be forwarded to Council within 5 working days of the date of issue.
Street numbers are to be affixed to the building or entry gate prior to occupation. House numbering can only be authorised by Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Council's Planning and Assessment Business Unit. Australia Post specifies the size and location of letterboxes.
Certification is to be provided to Council by an experienced civil engineer who is NPER accredited by the Institution of Engineers (Australia) that the drainage/stormwater management system has been installed to the manufacturer's specification and completed in accordance with the engineering plans and specifications this consent.
Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Council's written agreement that all restorations have been completed satisfactorily must be obtained.
The building on lot 3 (No 29A Bakers Road) is not to be occupied or used until an Occupation Certificate has been issued, confirming that the project complies with the relevant standards and the conditions of development consent. The request for an Occupation Certificate is to be accompanied by a copy of all of the Compliance Certificates required by the conditions of development consent
Prior to issue of the Occupation Certificate, certification is required in accordance with the Geotechnical Risk Management Policy for Pittwater that construction works have been carried out so as to comply with the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3.. Form 3 of the Geotechnical Risk Management Policy is to be completed and submitted to Council or the Accredited Certifier.
A positive covenant/ restriction on the use of land is to be created to the satisfaction of Council's solicitor in favour of Pittwater Council where there are any specific management, maintenance or main caning requirements in these conditions to ensure the geotechnical risk of the development is managed in accordance with Pittwater Council's Interim Geotechnical Risk Management Policy dated June 2003. The terms of the covenant are to be based on the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3, in addition to any further recommendations and specifications of a qualified practising Geotechnical Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field. .
{The two paragraphs of this condition were objected to by the applicants as unfair.} A positive covenant/ restriction on the use of the private driveway within the road reserve of Bakers Road bounding the subject land and benefiting Council is to be created to require on-going maintenance/inspections to ensure that the development achieves the "acceptable level of risk" criteria over the life of the development.
The terms of the covenant are to be based on the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3, in addition to any further recommendations and specifications of a qualified practising Geotechnical Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.
A positive covenant is to be created on the title to ensure the on going maintenance and performance of the on-site stormwater detention and stormwater drainage system. The terms of the covenant are to be in accordance with Councils standard wording.
F. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE
94A The surveyed area of Lot 1 and 4 exclusive of access corridors must be certified as not less than 700m2 .
A contribution of $ 4906 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Open Space Embellishment, in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the "Payment of Section 94" form attached to this consent. A contribution of $ 875 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services, in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the "Payment of Section 94" form attached to this consent. A contribution of $ 877 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Facilities, in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the "Payment of Section 94" form attached to this consent.
Appropriate easements are to be created where service lines or drainage lines pass through private property other than the lot which they benefit. Full details in this regard are to be submitted to Council, prior to release of the Subdivision Certificate.
Appropriate Rights of Way and Rights of Carriageway are to be created over the common driveway burdening and benefiting the proposed lots, to provide for suitable legal pedestrian access to the dwellings and appropriate vehicular access and manoeuvring to the parking areas to lots 2, 3 & 4 and also the area occupied by the inclinator servicing lots 2, 3 & 4. Full details in this regard are to be submitted to Council, prior to the commencement of construction.
A Certificate is to be submitted by a qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence confirming to the satisfaction of Council or the accredited certifier that the on site stormwater detention has been constructed in accordance with the plans nominated on the Development Consent and relevant conditions of Development Consent. The Subdivision Certificate will not be released until this certification has been submitted and Council or the accredited certifier has confirmed that this condition has been satisfied.
A Certificate is to be submitted by a qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence confirming to the satisfaction of Council or the accredited certifier that the driveway has been constructed in accordance with the approved plans and/or Council's DCP-E3 and/or AS 2890.1-1993 and relevant conditions of Development Consent. The Subdivision Certificate will not be released until this certification has been submitted and Council or the accredited certifier has confirmed that this condition has been satisfied.
A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the accredited certifier, prior to release of the Subdivision Certificate.
The applicant is to lodge an application for a Subdivision Certificate with Council or an accredited certifier. The Subdivision Certificate is to be obtained prior to lodgement of the plans with the Land Titles Office.
G SPECIAL CONDITIONS ARISING FROM GEOTECHNICAL ENGINEERS JOINT STATEMENT 101. The applicant shall commission an investigation by a geotechnical engineer and structural engineer prior to the commencement of any works and prior to the release of the linen plan of subdivision, to establish the condition of the upper access (within the reserve of Bakers Road) from its commencement with the main carriageway of Bakers Road for its length up to and 6 m beyond the western boundary of the subject land, including the subsurface conditions of the upper access. That report shall establish the required engineering standards for proper construction of the driveway and the proposed passing bay for normal domestic use for seven dwellings and for emergency access and any works required to ensure the driveway is drained to Council's required standards and is designed to prevent stormwater from discharging into or onto the slopes below the access drive. The report shall also stipulate any load limit that is required in respect of construction vehicles, normal use and emergency use. A copy of that report shall be submitted for the approval of the Council.
{Objected to buy the Council.} Prior to the issue of the construction certificate, a deed of agreement indemnifying council shall be entered into for the use of the upper access (referred to in condition 101 above).
Prior to the issue of the occupation certificate for the dwelling on Lot 4, the driveway from the dedicated section of Bakers Road up to the entrance to the common driveway serving the approved development shall be constructed to the standard stipulated in the report referred to in Special Condition 101 including the proposed passing bay within Lot 1 above and at the full cost of the applicant. A copy of the design for any re-construction work shall be submitted to Council's Director, Engineering Services for approval prior to the commencement of any work.
Prior to the issue of the occupation certificate for the dwelling on Lot 4, the driveway from the common private driveway serving the development up to the western end of the driveway, adjacent to 39 Bakers Road, shall be made good in respect of any damage caused during the construction process.
Prior to the commencement of any works, the applicant shall be responsible for the erection of a sign indicating the load limits as referred to in Special Condition 1.
The works associated with the construction of the inclinator and stair shall be undertaken prior to the occupation of any dwelling on Lot 4. __________________________
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.
Formston
Pittwater Council
CITATION : Formston v Pittwater Council [2004] NSWLEC 50 APPLICANTS Katie Formston, Helen Kaminski, John MacRae and Pat MacRae PARTIES : RESPONDENT Pittwater Council
98 . A council can be liable in negligence or nuisance for damage occurring from increased run-off from development that it has carried out or approved: cf. Rudd v Hornsby Shire Council (1972) 31 LGRA 120; Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313; Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074. A council is not necessarily relieved from an action in negligence because it has relied on a certificate or report from a consultant, if the council using reasonable care should have been aware that the particular certificate or report was inadequate.