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[2009] NSWLEC 1255
respondent. The s 96 modification appeal is dismissed in part: the reduced front setback is refused; the modification application is determined by refusal of the reduced setback and approval of the turning...
The applicant sought to bring a two storey house and garage forward on a large Wahroonga block closer to the street than council's consent allowed. The Council and neighbours argued the reduced setback would make the new two storey house visually dominant and harm the setting of adjacent locally listed heritage houses. The Court inspected the site, heard experts and refused the setback reduction because the approved 14.2m setback better preserved the streetscape and heritage setting. The turning bay was permitted with amended conditions, and agreed fence and landscaping conditions were imposed (paragraphs 26, 33-36, 46-51).
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This was an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 against a proposed modification to a council-approved two storey dwelling at 20 Grosvenor Street, Wahroonga (file No. 10255 of 2009). The applicant sought to reduce the front setback to the street from the consented 14.2 metres to a 10.2 metre setback (original DA had sought 9.2m) so that the dwelling (including a street-facing double garage and a turning bay) could be built further forward to enable retention of an outbuilding (former laundry) and increase rear yard area (paragraphs 1, 9, 25).
1 cited instrument linked from this judgment.
The Land and Environment Court (Commissioner Murrell C) inspected the site and heard evidence, including visual, heritage and town planning experts for both sides and oral submissions from local resident objectors. The immediate block has considerable variation in setback, but two adjoining properties (No. 18, a locally listed heritage dwelling, and No. 22) are set back significantly (No. 18 about 18.5m; No. 22 about 14m) and the streetscape is characterised by a vegetated garden setting and predominance of pitched roofs (paragraphs 2-3, 10, 36).
Council's experts and planner argued a reduced setback would make the two storey element of the approved dwelling visually dominant and harm the setting of the heritage item at No. 18, and that a setback around 15–16 metres would be preferable (paragraphs 12, 34-35). Applicant's experts argued the reduced setback fell within the existing variation of the streetscape and that the National Trust Urban Conservation Area (UCA) identification is not a statutory control (paragraphs 14-15, 31). The Court found the approved built form (height, two storey design and eaves) is to be treated as a given in the s 96 assessment and concluded the reduction would magnify the dwelling's visual dominance, thereby warranting refusal of the setback modification (paragraphs 26, 33-36).
The Court dismissed the appeal in part: it refused the reduced setback but approved the turning bay, required a consolidated and amended set of conditions (Annexure A), left the outbuilding as optional (allowing demolition or relocation), imposed agreed front fence design conditions and allowed porous driveway materials (paragraphs 46-51, Annexure A).
Three core strands underpin the decision.
The baseline for assessment: The Court emphasised that, in a s 96 modification, the approved built form is the baseline. That means the Court must have regard to the approved height, architectural style and presentation when assessing a proposed change to siting (paragraph 26). Once the two storey form of the dwelling is accepted as the approved built form, the impact of moving that built form forward becomes the central question.
Streetscape, heritage setting and visual dominance: The Court weighed expert evidence that the proposed forward siting would cause the two storey eaves and front elevation to read as visually prominent and dominant within this portion of Grosvenor Street. The key concern was the relationship to the adjacent heritage item at No. 18, which is set back some 18.5 metres; bringing the new dwelling forward would place it about eight metres ahead of the heritage item, creating a stark juxtaposition and adverse impact on the setting of the heritage item and the local streetscape character (paragraphs 32-36). The Court accepted that landscaping cannot fully mitigate this effect (paragraph 35).
Statutory guidance: The Court applied s 79C of the Act and the aims and objectives of Ku-ring-gai DCP No. 38. While noting that the National Trust UCA is not itself a statutory control, the Court held that the DCP calls up the UCA and that the DCP and its objectives are properly considered under s 79C. The Court also cited Zhang v Canterbury City Council for the principle that DCPs are discretionary matters that guide assessment, not absolute rules (paragraphs 27, 29-31, 44). In this factual matrix the Court found that upholding the 14.2m setback better complied with the DCP's aim to conserve the natural, built and cultural heritage significance and the vegetated streetscape character.
Consequently, the balance of s 79C matters favoured refusal of the reduced setback, while adopting amendments to the consent to permit a suitably configured turning bay and agreed streetscape-friendly driveway and fence treatments (paragraphs 33, 46-49).
Before this decision, planning practice in NSW already recognised:
This judgment reaffirms and applies these principles concretely:
After the decision, the practical position for planners and practitioners is emphasised: modifications that materially increase the visual prominence of an already approved two storey building relative to adjacent heritage items risk refusal where the DCP and s 79C objectives point to preserving the landscaped streetscape and heritage setting.
Paragraph 26: "The role of the Court's in its assessment is to have regard to the approved built form..."
Paragraph 31: "Even if one might say [the UCA] is not 'statutory', nonetheless it is called up in terms of s 79C."
Paragraph 33: "a setback of 14.2 metres ... will provide for the continued importance of the streetscape to be retained."
Paragraphs 34–35 (quoting Mr Logan and the Court's acceptance): "If the new dwelling was forward ... it would be visually dominant ... have an adverse impact on the setting of the item."
Paragraph 38–39 (fence agreement): experts agreed detailed fence design and the Court ordered that design be conditioned.
This judgment is directly engaged when:
Practitioners should apply the Court's approach: treat the approved built form as the baseline, evaluate the effect of siting changes on the immediate streetscape and heritage settings, and test whether the DCP objectives support the proposed change.
This judgment itself cites Zhang as the controlling authority on the role of DCPs (paragraph 44). The present decision applies those principles to a concrete streetscape and heritage context. The Court's determination is fact-specific: it turned on the particular geometry of the site, the two storey form and its relation to No. 18.
This judgment does not record subsequent appellate treatment or further citation histories. Practitioners wishing to understand persuasive or binding value should check public citators (for example AustLII, BarNet or commercial services) to see how (and whether) this decision has been cited in later cases. The legal principles applied here, baseline of approved form in s 96 cases and weight of DCP objectives under s 79C, are established and likely to be persuasive in similar fact patterns.
Quantitative thresholds for 'visual dominance': The Court made a fact-driven assessment of dominance (relationship of eaves, two storey presentation, relative setbacks). There is no bright-line numeric rule; practitioners must rely on expert visual analysis and careful site-specific reasoning (paragraphs 32-36).
Role of non-statutory heritage studies: The Court treated the National Trust UCA as material when called up by the DCP (paragraph 31). However, how much weight to give such studies, and the methodology for quantifying their influence, remains case-specific and requires careful pleading and evidence.
Landscaping as mitigation: The Court emphasised that landscaping should punctuate or balance built form, not be relied on to screen incompatible massing (paragraph 41). Future cases may explore the boundary between acceptable landscaping mitigation and impermissible attempts to hide dominant built form.
Retention of ancillary heritage structures: The judgment treated the applicant's wish to retain the outbuilding (former laundry) as a preference that could not justify an adverse setback modification (paragraphs 19, 43-45). The circumstances in which retention of an ancillary structure will justify concessions to DCP setbacks require more delineation.
Practitioners should therefore prepare detailed, evidence-based visual assessments, address s 79C holistically, and not assume numeric 'averages' alone will carry a proposal where the approved built form and immediate heritage relationships lead to significant visual dominance issues.
The applicant, builder, developer or person who does the work on this development, must arrange builder's indemnity insurance and submit the certificate of insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Certifying Authority for endorsement of the plans accompanying the Construction Certificate.
It is the responsibility of the applicant, builder or developer to arrange the builder's indemnity insurance for residential building work over the value of $12,000. The builder's indemnity insurance does not apply to commercial or industrial building work or to residential work valued at less than $12,000, nor to work undertaken by persons holding an owner/builder's permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).
Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, scaled construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail: o exact location and reduced level of discharge point to the public drainage system o layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, pits, grated drains, swales, kerbs, flushing facilities, subsoil drainage and all ancillary plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) o location(s), dimensions and specifications for the required rainwater storage and reuse tank systems and where proprietary products are to be used, manufacturer specifications and details must be provided o specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with BASIX commitments
The above construction drawings and specifications are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the BCA. The plans may be generally based upon the Stormwater Management Plan 382016/C1 and C2 prepared by AFCE Environment + Building submitted with the development application, which are to be advanced as necessary for construction certificate issue purposes.
Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that a mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47.
Prior to the issue of the Construction Certificate, the Principal Certifying shall be satisfied that no proposed underground services (ie. water, sewerage, drainage, gas or other service) unless previously approved by conditions of consent, are located beneath the canopy of any tree protected under Council's Tree Preservation Order, located on the subject allotment and adjoining allotments.
Note: A plan detailing the routes of these services and trees protected under the Tree Preservation Order, shall be submitted to the Principal Certifying Authority.
Prior to the issue of the Construction Certificate, the Principal Certifying shall be satisfied that the footings of the proposed front fence will be isolated pier or pier and beam construction within the specified radius of the trunk(s) of the following tree(s).
Schedule Tree/locationRadius from trunk Acer palmatum(Japanese Maple)Tree 43/adj property4m Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m
The piers shall be located such that no roots of a diameter greater than 30mm will be severed or injured during the construction period. The beam(s) shall be of reinforced concrete or galvanised steel sections and placed in positions with the base of the beam being a minimum of 50mm above existing soil levels.
Note: Structural details of the pier or pier and beam construction shall be submitted to the Principal Certifying Authority.
Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that a landscape plan has been completed in accordance with Council's DA Guide, relevant development control plans and the conditions of consent by a landscape architect or qualified landscape designer. Note: The landscape plan must be submitted to the Principal Certifying Authority.
Reason: To ensure adequate landscaping of the site.
Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings".
Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment.
This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels.
The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted.
Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic.
Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 - 2004 "Off-Street car parking". Details are to be provided to and approved by the Certifying Authority prior to the issue of the Construction Certificate.
Reason: To ensure that parking spaces are in accordance with the approved development.
CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE OR PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION (WHICHEVER COMES FIRST):
To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter:
a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas.
b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article.
c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction.
d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition.
e) In this condition: "Council Property" includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and "Infrastructure Restoration Fee" means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition.
CONDITIONS TO BE SATISFIED DURING THE DEMOLITION, EXCAVATION AND CONSTRUCTION PHASES:
A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority.
Reason: To ensure that the development is in accordance with the determination of Council.
For the purpose of any development related inspections by Ku-ring-gai Council engineers, the corresponding fees set out in Councils adopted Schedule of Fees and Charges are payable to Council. A re-inspection fee per visit may be charged where work is unprepared at the requested time of inspection, or where remedial work is unsatisfactory and a further inspection is required. Engineering fees must be paid in full prior to any final consent from Council.
The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: - The work must be carried out in accordance with the requirements of the Building Code of Australia - In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any works commence.
The demolition work shall comply with the provisions of Australian Standard AS2601: 2001 The Demolition of Structures. The work plans required by AS2601: 2001 shall be accompanied by a written statement from a suitably qualified person that the proposal contained in the work plan comply with the safety requirements of the Standard. The work plan and the statement of compliance shall be submitted to the satisfaction of the Principal Certifying Authority prior to the commencement of any works.
Reason: To ensure compliance with the Australian Standards.
Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays.
Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon and 1.00pm.
Where it is necessary for works to occur outside of these hours (i.e. concrete pours and standing of plant), approval for such will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works.
Note: Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued.
Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties.
A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period.
The site notice must: - be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted - display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer - be durable and weatherproof - display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice - be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted
Reason: To ensure public safety and public information.
During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted: - physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust - earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed - all materials shall be stored or stockpiled at the best locations - the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs - all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust - all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays - gates shall be closed between vehicle movements and shall be fitted with shade cloth - cleaning of footpaths and roadways shall be carried out daily
Reason: To protect the environment and amenity of surrounding properties.
During excavation, demolition and construction phases, no building materials, plant or the like are to be stored on the road or footpath without written approval being obtained from Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.
All excavation, demolition and construction works shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property.
During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.
If the work involved in the erection, demolition or construction of the development is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.
If necessary, a hoarding is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
Any hoarding, fence or awning is to be removed when the work has been completed.
All construction signs must comply with the following requirements: - are not to cover any mechanical ventilation inlet or outlet vent - are not illuminated, self-illuminated or flashing at any time - are located wholly within a property where construction is being undertaken - refer only to the business(es) undertaking the construction and/or the site at which the construction is being undertaken - are restricted to one such sign per property - do not exceed 2.5m2 - are removed within 14 days of the completion of all construction works
Reason: To ensure compliance with Council's controls regarding signage.
All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.
Reason: To ensure safe public footways and roadways during construction.
Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the applicants full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority.
Temporary sediment and erosion control and measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers.
Reason: To protect the environment from erosion and sedimentation.
Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped to an absorption trench system positioned parallel to the contours of the site at the highest practicable level. The design of the absorption trench shall comply with the requirements of Ku-ring-gai Water Management Development Control Plan No. 47.
A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door/basement parking slab to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris.
Canopy and/or root pruning of the following tree(s) which is necessary to accommodate the approved building works shall be undertaken by an experienced arborist/horticulturist, with a minimum qualification of the horticulture certificate or tree surgery certificate:
Schedule Tree locationTree works Pistacia chinensis (Pistacia) Tree 1/nature stripMinor crown lifting Pistacia chinensis (Pistacia) Tree 3/nature stripMinor crown lifting
If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced arborist/horticulturist with a minimum qualification of horticulture certificate or tree surgery certificate
No tree roots of 30mm or greater in diameter located within the specified radius of the trunk(s) of the following, tree(s) shall be severed or injured in the process of any works during the construction period.
Schedule Tree/locationRadius from trunk Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m
Approval is given for the following works to be undertaken to trees on the site:
Schedule Tree locationApproved tree works Pistacia chinensis (Pistacia) Tree 1/nature stripMinor crown lifting Pistacia chinensis (Pistacia) Tree 3/nature stripMinor crown lifting
Removal or pruning of any other tree on the site is not approved.
Reason: To ensure that the development is in accordance with the determination of Council.
All excavation within the specified radius of the trunk(s) of the following tree(s) shall be hand dug:
Schedule Tree/locationRadius from trunk Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m
No activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order at any time.
All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.
The canopy replenishment trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council's Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species
Reason: To maintain the treed character of the area.
Prior to the issue of an Occupation Certificate, the Principal Certifying Authority shall be satisfied that all commitments listed in BASIX Certificate No. 170811S have been complied with.
Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent.
Reason: To ensure that the landscape works are consistent with the development consent.
Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property.
The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.
Registered title documents showing the covenants and restrictions must be submitted to and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.
Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that: - the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans - the minimum retention and on-site detention volume storage requirements of BASIX and Ku-ring-gai Water Management Development Control Plan No. 47, respectively, have been achieved in full - retained water is connected and available for use - the drainage system has been installed by a licensed contractor in accordance with the Plumbing and Drainage Code AS3500.3 (2003) and the Building Code of Australia - all enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices
The rainwater certification sheet contained in Appendix 13 of Ku-ring-gai Water Management Development Control Plan No. 47, must be completed and attached to the certification. Where an on-site detention system has been constructed, the on-site detention certification sheet contained at appendix 4 of DCP 47 must also be completed and attached to the certification.
Note: Evidence from a qualified and experienced consulting civil/hydraulic engineer documenting compliance with the above is to be provided to Council prior to the issue of an Occupation Certificate.
Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed: - new concrete driveway crossing in accordance with levels and specifications issued by Council - removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials) - full repair and resealing of any road surface damaged during construction - full replacement of damaged sections of grass verge with a non-friable turf of native variety to match existing
All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council, dated November 2004. The Occupation Certificate must not be issued until all damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council.
Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that any damaged public infrastructure caused as a result of construction works (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council Development Engineer and at no cost to Council.
This consent does not include any other approvals granted under Section 78A(5) of the Environmental Planning and Assessment Act 1979.
J S Murrell Commissioner of the Court ljr
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.
Gabb
Ku-ring-gai Council
CITATION : Gabb v Ku-ring-gai Council [2009] NSWLEC 1255
CASES CITED: Zhang v Canterbury CC [2001] NSWCA 167
The s 96 modification appeal is dismissed in part: the reduced front setback is refused; the modification application is determined by refusal of the reduced setback and approval of the turning bay subject to consolidated amended conditions (Annexure A); exhibits returned except Exhibits 6, N and S (paragraph 51).