Goreski v Hurstville City Council

Land and Environment Court (NSW)|2010-09-30

CITATION : Goreski v Hurstville City Council [2010] NSWLEC 1288

APPLICANT Paul and Valentina Goreski PARTIES : RESPONDENT Hurstville City Council

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a two-storey dual occupancy and subdivision of the land into two Torrens Title lots - non compliance with minimum allotment size - SEPP 1 objection - precedent - privacy and overlooking - accessibility of the private open space from the dwelling

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 State Environmental Planning No 1

Golden and Anor v Minister for Transport 121 LGERA 101 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group v North Sydney Council [2001] NSWLEC 294

APPLICANT Mr D Loether, solicitor SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10557 of 2010 Paul and Valentina Goreski v Hurstville City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal against a refusal by Hurstville City Council (the council) of Development Application 09/DA-228 for the demolition of an existing dwelling and the construction of a two-storey dual occupancy and subdivision of the land into two Torrens Title lots at 165 Carrington Avenue, Hurstville (the site). 2 The contentions raised by the council relate to the breach of the minimum area development standard, overlooking from rear balconies and the unacceptable relationship between the internal living area of the proposed dwelling and the outdoor recreation area. Contentions relating to height and internal storage were addressed through conditions. The site and surrounding area 3 The site is Lot 14 in DP 8011. It is rectangular in shape with a street frontage of 15.465 m, a depth of 39.625 m and an area of 619.8 sq m. A single-storey dwelling house with an attached garage is located on the site. 4 The surrounding area is almost exclusively residential in character and comprises a range of housing types from older style cottages, renovated cottages, two-storey dwellings of more traditional design, newer contemporary two-storey dwellings and some dual occupancy developments. Relevant planning controls 5 The site is within Zone No 2 (Residential Zone) under Hurstville Local Environmental Plan 1994 (LEP 1994). Dual occupancies are permissible with consent within this zone. Clause 8(3) provides that development consent must not be granted unless the development "is consistent with the objectives of the zone". The relevant zone objectives are: (a) to preserve and enhance the character and amenity of established residential areas, (b) to allow a variety of housing types within existing residential areas, (d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design, (e) to enable redevelopment for medium-density housing forms, including townhouses, villas, cluster housing, semi-detached housing, residential flat buildings and the like, where such development does not interfere with the amenity of surrounding residential areas and 6 Clause 11A provides requirements for dual occupancies. Clause 11A(2A) requires a minimum allotment size of 630 sq m and a width of at least 15 m. The proposed development satisfies the width requirement but does not satisfy the minimum allotment size development standard having an area of 619.8 sq m. An objection under State Environmental Planning No 1 - Development Standards (SEPP 1) has been provided to show why strict compliance with the minimum allotment size development standard is unreasonable and unnecessary, in this case. 7 Clause 11A(1) provides objectives for cl 11A. The relevant objective is in cl 11A(1)(d) that states: ( d) provide a minimum allotment size and width required for the development of dual occupancy so that: (i)the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape; (ii)allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting; and (iii)the scale and density of development is compatible with the existing streetscape. 8 Hurstville Development Control Plan (the DCP) also applies. Clause 4.2.2.2 reiterates the minimum allotment size in cl 11A(2A). Clause 4.2.5 provides requirements for private open space. Relevantly, Design Principle (b) states: (b) Landscaped areas are functional and attractive and linked to living areas. 9 Clause 4.2.8 provides requirements for privacy and overlooking. The objectives are: o Protect residents from excessive overlooking and noise. o Provide dwellings which orientate towards the front and rear of the site rather than towards the neighbours. 10 Design Principle (a) states: (a) New dwellings do not result in unacceptable overlooking of adjoining sites . 11 The Design Solutions and Controls for visual privacy require "the main windows and balconies of a dual occupancy development should be directed to the front and rear of the site to avoid: o overlooking of adjoining private open space areas and, o having windowing facing directly opposite each other The SEPP 1 objection 12 Expert town planning evidence was provided by Ms Kristy Lee for the applicant and Ms Paula Bizimis for the council. Ms Lee prepared an amended SEPP 1 objection to the minimum allotment size development standard and a joint report with Ms Bizimis. Is the SEPP 1 objection flawed? 13 The SEPP 1 objection identified cl 11A(2A) as the relevant development standard, cl 11A(1)(d) as the relevant objective for the development standard and the appropriate tests in Wehbe v Pittwater Council [2007] NSWLEC 827 and Winten Property Group v North Sydney Council [2001] NSWLEC 294 for considering the SEPP 1 objection. 14 Mr Seton for the council submitted that the SEPP 1 objection was flawed in that while it asked the right question of whether the development is consistent with the aims of the policy, it incorrectly adopted the policy as the objectives of Zone No 2 (Residential Zone) rather than the aims of SEPP 1. 15 While the approach adopted in the SEPP 1 objection is partly incorrect, I am not satisfied that it is necessarily fatal to the application. SEPP 1 at cl 6 addresses making an application under the policy. It states: 6 Making of applications Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefore) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection . (my emphasis) 16 SEPP 1 at cl 7 addresses the granting of consent and states: 7 Consent may be granted Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6 . (my emphasis)

This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act . 18 Clause 6 places an obligation on the applicant to show why, through a written objection, that compliance with that development standard is unreasonable or unnecessary in the circumstances of that particular case and specifying the reasons 19 Ms Lee's objection addresses why the development standard is unreasonable or unnecessary at p 7 in the SEPP 1 objection and is further addressed in her joint statement and her oral evidence. While it would have been more helpful if the SEPP 1 objection addressed the aims of SEPP 1 rather than the objectives of Zone No 2 (Residential Zone), I am satisfied that it is not fatal to the application, providing the aims of the SEPP 1 are addressed in determining whether the application is well founded, as required by cl 7. The objectives 20 The SEPP 1 objection addresses the variation to the development standard through the first test in Wehbe, that is: The proposed development proffers an alternate means of achieving the objectives. Strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonably (no purpose would be served). Objective (d)(ii) 21 Objective (d)(ii) provides that allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting. I did not understand there to be any dispute over this objective. The applicant has provided a landscape plan that was not raised as a contention in the proceedings. Objective (d)(i) 22 Objective (d)(i) provides that the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape. Ms Bizimis states that the proposal is inconsistent with this objective as it will result in two lots that are not consistent in size or width to the existing pattern of subdivision in Carrington Avenue. 23 Ms Lee states that the proposal will achieve the objective as the proposed design of the subdivision will continue to maintain the orientation and shape of allotments within the vicinity of the site. The appearance, particularly from the streetscape, will be of a rectangular nature in a uniform manner, consistent with properties that are adjoining the site. In terms of the allotment size being smaller than other allotments, once subdivided, the architectural outcome of the proposed development will, through consistency of design, will appear as many others dwellings in the streetscape. 24 On objective (d)(i), I am satisfied that the proposal achieves the objective for a number of reasons; while Ms Bizimis sought to rely on the 36 lots in DP 8011, I do not accept that this is the appropriate test. The test of whether the subdivided lots retain the pattern of subdivision should be extended beyond this limited area. Importantly, the objective uses the words "residential area". I have taken this to mean land in the general area of the site and within the same zoning. The council helpfully provided a cadastral plan with a zoning overlay of an area around 150 m from the site. This plan is dated 4 August 2010, so I presume it is reasonably up-to-date in terms of subdivision. The plan reveals that the majority of the lots are around 600 sq m or more. However, there are a number of lots that have been subdivided in a similar form to that proposed in this application. For example, 121 Gloucester Road, 158 Gloucester Road and 209 Dora Street. 25 The fact that there has been no dual occupancies and subdivision in Carrington Avenue is not a determinative matter, in my view, given the same zoning as other streets in the area and the permissibility of dual occupancy developments in this zone. If the council were of the view that dual occupancy developments were inappropriate in Carrington Avenue, then the zoning of Carrington Avenue should reflect this fact. 26 I also do not accept Ms Bizimis's argument that the approval will create an unanticipated increase in density in Carrington Avenue. No evidence was produced to show that the additional density created by a single dual occupancy development would create any unacceptable impacts. This argument also needs to be seen in the light of the other uses such as multiple dwellings and residential flat buildings that are also permissible uses in Zone No 2 (Residential Zone). Objective (d)(iii) 27 Objective (d)(iii) provides that the scale and density of development is compatible with the existing streetscape. Ms Bizimis states that Carrington Avenue is characterised by detached single dwelling houses. The proposed detached dual occupancy will result in a development that is not compatible with the existing streetscape in scale and density as the permissible floor space ratio of dual occupancy developments is higher than that permitted for single dwelling houses. As such, the proposed development is for a higher density than the single dwelling houses. The proposed development will also introduce to Carrington Avenue attached dwellings which are not compatible with the existing streetscape that consists of detached single dwellings. 28 Ms Lee states that the scale and density of the development on the site is compatible with the existing streetscape as the proposed architectural response combines both traditional and contemporary elements to achieve an appropriate balance in the streetscape. The design of the front facade of each dwelling, when presented to the streetscape, provides openings that are proportional to each dwelling. This is reinforced with the inclusion of balconies at first floor levels. Such features are common to the streetscape and provide opportunities for passive surveillance and interaction between neighbours. The overall balance and rhythm of the facades, along with the articulation provided to promote quality and character and accord with the general patterns prevalent within the streetscape, ensures that an aesthetically pleasing outcomes to the street is achieved. The proposed development also satisfies the DCP design standards with the exception of the minimum lot requirement. 29 On this objective, I am also satisfied that the proposed development achieves the objective. Again, any assessment should not necessarily relate strictly to the existing form of development in Carrington Avenue, but consideration must be given to the scale, density and form of development contemplated by the council's planning controls for the Zone No 2 (Residential Zone). In this regard, dual occupancies are a permissible use and have been approved by the council in surrounding streets. For reasons mentioned earlier, the zoning of Carrington Avenue does not provide any basis for the exclusion of dual occupancy development subject to an appropriate test against the requirements within the council's planning controls. As dual occupancy developments are a permissible use on the site and as the proposal satisfies all relevant development requirements with the exception of the minimum lot size requirement, I accept objective (d)(iii) is achieved. 30 For the reasons mentioned in the previous paragraphs, I accept that the development consent is consistent with the aims of SEPP 1 and that strict compliance with the development standard in cl 11A(2A) is unreasonable and unnecessary in this case. It follows that the SEPP 1 objection is well-founded. Precedent 31 The potential precedent effect for others properties in Carrington Avenue was raised by Ms Bizimis. The Court was referred to the decision of Lloyd J in Golden and Anor v Minister for Transport 121 LGERA 101 where it was found that precedent is a valid planning consideration. 32 I am not, however, satisfied in this case that the issue of precedent would be a reason to refuse the application. Dual occupancy developments are a permissible use within the Zone No 2 (Residential Zone).and if an application is submitted on a lot less than 930 sq m, then it will need to be assessed through SEPP 1 and the merits considered under LEP 1994 and the DCP. Privacy 33 The issue of privacy and overlooking is partially addressed through a condition, condition 15(c), requiring privacy screens to the north-western elevation of the verandah to unit 2, although Ms Bizimis maintained that unacceptable overlooking impacts occurred from the upper level rear balconies to each of the proposed rear yards and also the rear yard of the adjoining property at 167 Carrington Avenue. 34 Clause 4.2.8 of the DCP addresses privacy and overlooking. This clause seeks to protect residents from "excessive overlooking". In my view, the relevant Design Solutions and Guidelines in this clause are satisfied as the proposal has "balconies directed to the front and rear of the site". Given that the balconies are located off bedrooms, they are orientated towards the rear and do not result in excessive overlooking, there is no mandate to amend the design or refuse the application on the basis of overlooking or loss of privacy. 35 Ms Bizimis also raised the issue of the sliding door that adjoins the dining room on the ground floor and the potential overlooking impact. Condition 15(d) provides for the replacement of the door with translucent glazing. I accept that this is an acceptable response to the potential overlooking. While there were some suggestions that overlooking could potentially occur from the lounge room windows adjoining the side boundary, any attempts to address this issue in a similar manner to the sliding glass doors would, in my view, result in unacceptable and poor amenity for the occupants of the lounge room. On this basis, no further amendments could be justified. Accessibility of the private open space 36 Ms Bizimis also raised the issue of the accessibility of the private open space from the dwelling. With an understanding of the plans, I do not accept that the accessibility is unacceptable. Principle (b) in cl 4.2.5 requires that private open space be "linked to living areas". In this case the verandah directly adjoins the kitchen, is some 4 m from the dining room and some 8 m from the lounge room. In my view, this is sufficiently linked to satisfy principle (b). 37 Pursuant to cl 8(3), I find that the proposed development is consistent with the zone objectives and, based on the findings in the previous paragraphs there are no reasons why consent should not be granted.

Orders 38 The orders of the Court are: 1. The appeal is upheld. 2. Development Application 09/DA-228 for the demolition of an existing dwelling and the construction of a dual occupancy development and Torrens Title subdivision at 165 Carrington Avenue Hurstville is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1, 2, 5, A and B.

      G T Brown
      Commissioner of the Court

CONDITIONS OF DEVELOPMENT CONSENT FOR DUAL OCCUPANCY DEVELOPMNET 165 CARRINGTON AVENUE HURSTVILLE

OC1 - Act, Regulations and Environmental Planning Instruments Prevail - This consent is granted subject to compliance with the relevant requirements of the Environmental Planning and Assessment Act 1979 as amended ("the Act"), the Environmental Planning and Assessment Regulation 2000 ("the Regulation"), the Building Code of Australia ("the BCA"), Hurstville City Council's ("the Council's") Local Environmental Plan 1994, Development Control Plan No. 1 (Hurstville LGA Wide DCP) or Development Control Plan No. 2 (Hurstville City Centre) as applicable, and any applicable codes, except if varied by this consent.

OC2 -Approved Plans - The development shall be carried out in accordance with the details set out on the application form, supporting information received with the application and the schedule of plans and details below, except as amended by the conditions of this consent.

Description Plan Number Plan Date Site Plan 1/6 Rev B 28 April 2010 Ground Floor Plan 2/6 Rev B May 2009 First Floor Plan 3/6 Rev B May 2009 Front and Rear Elevations 4/6 Rev B May 2009 Side Elevations 5/6 Rev B May 2009 Section and Front Fence Elevations 6/6 Rev B May 2009 Site Analysis Plan SAP 1/1A 1 June 2010 Stormwater Plan 1/1 May 2009 Soil & Water Management Plan 1/1 May 2009 Landscape Plan LP1/1A 1 June 2010 Construction Management Plan 1/1 May 2009 Shadow Diagram SD 1/3 A 1 June 2010 Finishes and Colour Schedule FS1/1

The proposal must comply with the provisions of the Building Code of Australia. However, if this requires any changes to the external portion of the building it may require a Section 96 Modification to be lodged and approved with Council, prior to the issue of the Construction Certificate.

OC3 - Amenity - The implementation of this development shall not adversely affect the amenity of the neighbourhood by way of the emission or discharge of noise, vibrations, fumes, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or other harmful products. 5. OC4 - Prescribed Conditions - This development consent is subject to the conditions as prescribed pursuant to Section 80 A(11) and Section 85A(6)(a) of the Environmental Planning and Assessment Act 1979 and Clauses 98-98B of the Environmental Planning and Assessment Amendment Regulation 2000. 6. PR1 - Prescribed Conditions of Development Consent

Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 (relating to building work) All building work must be carried out in accordance with the provisions 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 building work authorized to be carried out by the consent commences.

This Clause does not apply where exemptions apply or to the erection of a temporary building.

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

(a) showing the name, address and telephone number of the principal certifying authority for the work (b) showing the name of the principal contractor (if any) for any building work and a telephone number at which that person may be contacted outside working hours (c) stating that unauthorised entry to the work site is prohibited (2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, and must be removed when the work has been completed. (3) This clause does not apply to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building. (4) These signage requirements do not apply to in relation to Crown building work that is certified to comply with the technical provisions of the State's building laws. Notification of Home Building Act 1989 Requirements

This condition applies to residential building work within the meaning of the Home Building Act 1989, which must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the Council written notice of

(a) in the case of work for which a principal contractor is required to be appointed:

(i) the name and licence number of the principal contractor (ii) the name of the insurer by which the work is insured under Part 6 of that Act

(b) in the case of work to be done by an owner builder:

(i) the name of the owner builder (ii) if the owner builder is required to hold an owner builder permit under the Act, the number of the owner builder permit If arrangements for doing the residential building work are changed while the work is in progress so that the notified information becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information. These insurance requirements do not apply to Crown building work that is certified to comply with the technical provisions of the State's building laws. Demolition Conditions

(a) The demolition of the building must be carried out strictly in accordance with Australian Standard 2601-2001 - The Demolition of Structures. (b) The demolition contractor must carry a current public risk insurance cover for a minimum of $10,000,000.00. (c) For buildings containing asbestos sheeting or asbestos products, the demolition shall: (i) only be carried out by persons licensed by the WorkCover Authority. The formal approval of the WorkCover Authority is required before commencement of work where the area of the sheeting or product exceeds 10 square metres. For more information phone WorkCover on 13 10 50 or visit www.workcover.nsw.gov.au. (ii) comply with Council's Asbestos Policy adopted by Council on 23 March 2005 (as amended from time to time).. A copy of the Policy may be downloaded from the Development ... Site Management page of our website. (d) Lead paint removal must not cause lead contamination of the air or ground. For more information visit www.dec.nsw.gov.au or phone the Department of Environment and Conservation on 9995 5555. (e) Decommissioning of any air-handling or refrigeration system containing chlorofluorocarbons (CFC's) or fire extinguishing systems containing halons must only be carried out by a person or directly supervised by a person authorised by the Department of Environment and Conservation. Any work of this nature must be in accordance with the Ozone Protection Act and Regulations and any relevant Code of Practice approved by the Department of Environment and Conservation. For more details visit www.environment.nsw.gov.au. or phone the Department of Environment and Conservation on 9995 5555. (f) The cost of any damage to road/kerb/gutter/footpath will be deducted from the kerb and gutter damage deposit unless you notify Council of any existing damage before the commencement of work.

DE7 - On demolition sites where buildings to be demolished contain asbestos, a standard commercially manufactured sign containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent visible position (from street frontage) on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility.

DE8 - Demolition works involving the removal and disposal of bonded asbestos over 200sqm must only be undertaken by a licensed asbestos removalist. Licensed asbestos removalists must be engaged for the removal of any friable asbestos.

DE9 - The developer /builder is to notify adjoining residents five (5) working days prior to demolition. Such notification is to be a clearly written note giving the date demolition will commence, contact details of the developer/builder, licensed asbestos demolisher and the appropriate regulatory authority ( i.e. WorkCover or Hurstville City Council). Notification is to be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear of the demolition site.

DE10 - Five (5) working days prior to demolition, the developer/builder is to provide written notification to Hurstville City Council advising of the demolition date, details of the WorkCover licensed asbestos demolisher and the list of residents advised of the demolition.

Waste Service - Domestic waste bins must not be used with demolition/construction work. You can apply to cancel the waste service, so that the domestic waste bins are removed and waste charges suspended. Further information is available from the Waste Service Project Officer on 9330 6154 during office hours.

To Obtain a Construction Certificate 13. The following must be submitted to either Council or an Accredited Certifier before a Construction Certificate is issued: (a) Evidence of an Owner Builder Permit (Class 1 & 10 buildings only). (b) Evidence of a Home Building (Private) Insurance Certificate. (c) Fees to be paid to Council: Schedule of fees, bonds and contributions Fee Type Paid Fee Type Amount Receipt Date Receipt No Development Application Fee X DA1 $1480.00 10 Jun 09 316810 Plan First Fee X AP35 $355.20 10 Jun 09 316810 Notification Fee X AP12 $115.00 10 Jun 09 316810 Imaging Fee X AP165 $120.00 10 Jun 09 316810 Long Service Levy AP34 $1942.00 Builders Damage Deposit BON2 $1500.00 Inspection Fee for Refund of Damage Deposit DA6 $125.00 Subdivision Certificate Fee $308.00 88B Checking Fee $266.00 S94 - Open Space & Community Recreation CONT9 $5555.00 S94 - Community Services & Facilities CONT3 $2982.00 S94 - Drainage Services - Georges River CONT5 $Nil S94 - Management CONT8 $219.59 S94 - Library Infrastructure CONT7 $1519.00 S94 - Library Bookstock CONT4 $8.63 The following fees apply where you appoint Council as your Principal Certifying Authority (PCA). (If you appoint a private PCA, separate fees will apply) PCA Services Fee DA6 $1886.09

Fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment. 14. BI1 - Building Code of Australia ("BCA") - A Construction Certificate must be obtained before the commencement of work from Council or an Accredited Certifier. Detailed plans and specifications for the proposed building must demonstrate compliance with the BCA.

OC8 - Design Changes Required - The following design changes are required and are to be incorporated into the plans to be lodged with the Construction Certificate application. (a) 6m³ of storage area is to be provided within each dwelling. (b) The height of the development is to be a maximum of 9m from any point of the existing ground level to the roof ridge. The height of the development is to be amended to achieve this maximum height without reducing the floor to ceiling heights of any storey within the dwellings below 2.7m. (c) A privacy screen is to be provided to the north western (side) elevation of the verandah to dwelling 2. The privacy screen is to be a minimum 1.8m high from the finished floor level of the verandah and to be of a material that can not be seen through such as translucent glazing. If louvres are provided they are to be fixed in a direction that does not allow downward viewing of the adjoining development. (d) The sliding door to the dining room located on the northwest elevation of dwelling 2 is to be deleted and replaced with a window containing translucent glazing.

BI2 - Long Service Leave Levy - Submit evidence of payment of the Building and Construction Industry Long Service Leave Levy to the Principal Certifying Authority. Note this amount is based on the cost quoted in the Development Application, and same may increase with any variation to estimated cost which arises with the Construction Certificate application. To find out the amount payable go to www.lspc.nsw.gov.au or call 131441. Evidence of the payment of this levy must be submitted with the Construction Certificate application. 17. BDI - Damage to Council Property - In order to insure against damage to Council property the following is required:

(a) Payment to Council of a Damage Deposit for the cost of making good any damage caused to any Council property as a result of the development: $1500.00. (b) Payment to Council of a non refundable Inspection Fee to enable assessment of any damage and repairs where required: $125.00.

(c) At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

(d) Prior to the commencement of work a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal, shall be submitted to Council.

(e) Payments pursuant to this condition are required to be made to Council before the issue of the Construction Certificate. 18. S942 - Open Space and Community Recreation - Pursuant to Section 94(1) of the Environmental Planning and Assessment Act, 1979, payment shall be made to Council of a monetary contribution for open space and community recreation facilities. The contribution relates to Plan no. 2 and is based on the criteria that any development which results in a net increase in the City's population will create extra demand on open space and community recreation facilities. Therefore the requirement for additional open space and embellishment of existing open space is a direct measurable consequence of the approved development.

The total open space and community recreation facilities contribution required and payable before release of the Construction Certificate is $5555.00.

S944 - Community Services and Facilities - Pursuant to Section 94(1) of the Environmental Planning and Assessment Act, 1979, payment shall be made to Council of a monetary contribution for community services and facilities. The contribution relates to Plan no. 4 and is based on the criteria that any development which results in a nett gain of people living in the City or a change in the population structure will create extra demand on community services and facilities. The total community services and facilities contribution required and payable before release of the Construction Certificate is $2982.00.

S945 - Management - Pursuant to Section 94(1) of the Environmental Planning and Assessment Act, 1979, payment shall be made to Council of a monetary contribution for Section 94 planning and management. The contribution is related to Plan no. 5 and is based on the criteria that the significant costs to Council associated with Section 94 planning and management are a direct measurable consequence of the approved development. Therefore it is appropriate to seek to partly offset these costs from the development.

The total Section 94 Management contribution required and payable before release of the Construction Certificate is $219.59.

S946 - Library and Information Services - Pursuant to Section 94(1) of the Environmental Planning and Assessment Act, 1979, payment shall be made to Council of a monetary contribution for library and information services. The contribution is related to Plan No. 6 and is based on the premise that any development which results in a nett increase in the City's population will create extra demand on Council's library and information services provision. Furthermore, any such development will also generate an additional demand for the acquisition of library book stock.

(a) The contribution rate for residential development is $1519.00.

(b) The book stock acquisition contribution for residential development is $8.63.

The total Library and Information Services Section 94 contribution required and payable before release of the Construction Certificate is $1527.63.

S948 - Indexing of all Section 94 Contributions - All contributions payable pursuant to Section 94 conditions must be paid before issue of the Construction Certificate, and will be indexed quarterly in accordance with the Consumer Price Index - Sydney All Groups, published by the Australian Bureau of Statistics. If you seek to obtain a Construction Certificate more than three (3) months from the date of this consent you must contact Council to determine the variation in the contribution(s) before payment. If you engage an accredited certifier payment(s) must be made before issue of the Construction Certificate. Failure to do so can result in problems including incorrect cheque preparation, return of payment, and delay in obtaining your Construction Certificate.

ST1 - Structural details - Structural plans and specifications prepared and endorsed by a suitably qualified practising structural engineer shall be submitted along with the Construction Certificate application to the Principal Certifying Authority for any of the following, as required by the building design:

(a) piers (b) footings (c) slabs (d) columns (e) structural steel (f) reinforced building elements (h) retaining walls (i) stabilizing works

PN9 - No excavation, pier hole drilling, construction or the like may be carried out before the issue of the Construction Certificate.

PN10 - The site is not to be filled or excavated other than as strictly indicated on the approved plans. 26. PN11 - Details of all proposed retaining walls, including height, materials, finish and structure, must be submitted with the Construction Certificate Application.

PW1 - The developer must ensure that appropriate dust suppression measures are installed/utilised during the periods of excavation/placement of fill/construction. Details of the means of dust suppression must be submitted with the Construction Certificate application.

PW4 - The developer must take all measures available to control the emission of dust from the site and in this regard adequate watering equipment acceptable to Council shall be used on the site at all times other than in wet weather. The developer must ensure that the contractor is able to control emission of dust from the site on weekends when windy conditions prevail. Details to be submitted with the Construction Certificate application. 29. PW5 - The developer must submit a site works plan detailing sedimentation controls, fencing, builders site sheds office and amenities, materials storage and unloading arrangements with the Construction Certificate application. This is required before the commencement of any work on-site, including demolition.

DR12 - On-Site Detention - An on-site detention (OSD) facility designed by a professional hydrological/hydraulic engineer, shall be installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships of the proposed OSD using the following design parameters: (a) For events up to a 5% annual exceedance probability (AEP) design event as defined by Australian Rainfall and Runoff (May 1987). Maximum peak site discharge resulting from the development shall not be greater than peak site discharge, where the lots were previously occupied by a single dwelling, garage, lawn and garden.

(b) Where the stormwater discharge points are connected to the street gutter system, the peak flow from the site shall not increase the width of gutter flow by more than 200mm at the design storm.

(c) The OSD facility shall be designed to meet all safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sign is to be placed at the OSD facility and must bear the words: "This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms." Full details shall accompany the application for the Construction Certificate.

DR13 - All stormwater shall drain by gravity to Council's kerb and gutter. 32. DR11 - Stormwater drainage plans - Stormwater drainage plans including pipe sizes, type, grade, length, invert levels, dimensions and types of drainage pits prepared by a qualified practising hydraulics engineer in accordance with the Australian Institute of Engineers Australian Rainfall and Runoff (1987) and Council's Stormwater Drainage Guidelines, shall accompany the application for the Construction Certificate. 33. The stormwater drainage plans prepared by the qualified practising hydraulics engineer for the Construction Certificate shall take into consideration the low level footpath for the outlets across Council's footpath to the gutter invert. The outlet pipe(s) shall have a minimum of 80mm cover to the front of the concrete footpath outside the site. Any outlet to the kerb shall not be located greater than 1.5 m in front of the adjoining property no. 167 Carrington Ave. It may be necessary to reconstruct Council's concrete footpath outside the subject site at a higher level to provide the outlet to the kerb. If this is necessary the new footpath levels shall be obtained from Council's Engineer and all work shall be done entirely at the developer's expense.

Details of the above shall accompany the application for the Construction Certificate .

PV17 - Removal of Redundant Crossings and Restoration of Kerb/Gutter/Footpath - Any existing vehicular crossings which are redundant must be removed, and the kerb (and any footpath) restored at your expense, by either prepayment to Council to: (a) Re-construct Council's concrete footpath outside the subject site at a higher level to provide the outlet to the kerb if necessary. (b) Construct a 130mm thick concrete crossing reinforced with F62 fabric. (c) Replace all redundant laybacks with kerb and guttering, and redundant concrete with grass. Council will provide a quote for this work upon request.

A private contractor may carry out above work subject to: (a) Council's conditions and specifications, including payment of asphalt infill repairs. (b) Payment of Council's administration fee listed in our Schedule of Fees and Charges (c) No stencilled or coloured concrete may be used outside the boundary of the property. The work must be complete before the issue of an Occupation Certificate.

PU1.1 - Sydney Water - Access to Water and Waste Water Services - A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Co-ordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, as it can take some time to build water/sewer pipes and this may impact on other services and building, driveway or landscape design.

The Notice of requirements must be submitted with the application for a Construction Certificate.

PU2 - Sydney Water - The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's assets, sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. A copy of the Sydney Water Quick Check approval is to be submitted to Council. Please refer to the web site www.sydneywater.com.au for:

Quick Check agents details - see Building Developing and Plumbing then Quick Check; and * Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating.

RRl - Access Levels - An access levels application must be submitted to Council to obtain footpath alignment levels and vehicle crossing levels before designing internal driveways and car parking. Evidence that the proposed internal driveway design complies with Council's issued levels and general access standards shall be submitted with the Construction Certificate application. 38. RR2 - Road Opening Permit - A Road Opening Permit must be obtained from Council, in the case of local or regional roads, or from the Roads and Traffic Authority, in the case of State roads, for every opening of the public road to access services including sewer, stormwater drains, water mains, gas mains, and telecommunications before the commencement of work in the road. Before Commencing the Development

IN2 - Appointment of Principal Certifying Authority - No work shall commence in connection with this Development Consent until:

(a) A Construction Certificate for the building work has been issued by:

(i) The consent authority; or (ii) An accredited certifier; and (b) The person having the benefit of the development consent has: (i) Appointed a Principal Certifying Authority for the building work, and (ii) Notified the Principal Certifying Authority that the person will carry out the building work as an owner-builder, if that is the case, and

(b1) The Principal Certifying Authority has, no later than 2 days before the building work commences:

(i) Notified the Council of his or her appointment, and (ii) Notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(b2) The person having the benefit of the development consent, if not carrying out the work as an owner-builder, has: (i) Appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and (ii) Notified the Principal Certifying Authority of such appointment, and (iii) Unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and (c) The person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building. Note: If the Principal Certifying Authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking all necessary inspections and the issue of the appropriate certificates.

BC1 - Construction Certificate - No work shall commence until you:

(a) Obtain a Construction Certificate from either Hurstville City Council or an Accredited Certifier - a fee applies for this service; and

(b) Lodge with Hurstville City Council any Construction Certificate obtained from an Accredited Certifier (together with associated plans and documents) - a fee applies for this service.

BC2 - Notice of Commencement - No work shall commence until you submit a Notice of Commencement (form attached or available from our website) giving Council: (a) Not less than two (2) days notice of the date on which it is proposed to commence work associated with this Development Consent.

(b) Details of the appointment of a Principal Certifying Authority (either Hurstville City Council or an Accredited Certifier). (c) Details of the name, address and licence details of the Builder. 42. BC3 - Site Safety Fencing - Erect site fencing complying with WorkCover Guidelines, to exclude public access to the site throughout the demolition and/or construction work, except in the case of alterations to an occupied dwelling. The fencing must be erected before the commencement of any work and maintained through out any demolition and construction work. 43. BC4 - Principal Certifying Authority (PCA) Sign - A sign must be erected in a prominent position on the site indicating that entry to the site by unauthorised persons is not permitted, and including the contact details of the PCA. Where Council is the PCA, a sign may be obtained at no cost from Council's Customer Service Centre. A PCA sign must be erected on the site before the commencement of any work.

BC5 - Bulk Excavation or Filling Levels - The bulk excavation or filling levels for footings or slabs, when placed, shall not exceed the levels as required by this consent. A surveyor's certificate verifying compliance with this condition must be submitted before placement of concrete in footings or slabs. 45. BC6 - Home Building Insurance for Residential Building Work - The builder or person who does any residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989, whereby a person must not contract to do any residential building work unless a contract of insurance that complying with the Act is in force in relation to the approved work. The builder or person shall obtain and have in force Home Building Insurance and supply to Council a copy of the Certificate in respect of insurance complying with the Act before the commencement of any work. Note: This condition applies to buildings with a rise of storeys not more than three that contains two or more dwellings, where a storey has the same meaning as in the BCA and does not include a space within a building if the space includes accommodation only intended for vehicles. 46. PW2 - The developer must ensure that sediment-laden runoff from the site is controlled at all times subsequent to commencement of construction works. Sediment control measures must be maintained at all times and checked for adequacy at the conclusion of each day's work. 47. ES1 - Erosion and Sedimentation Controls - Erosion and sedimentation controls must be provided to ensure:

(a) compliance with the approved Soil and Water Management Plan (b) removal or disturbance of vegetation and top soil is confined to within 3m of the approved building area (no trees to be removed without approval) (c) all uncontaminated run-off is diverted around cleared or disturbed areas (d) silt fences or other devices are installed to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways (e) all erosion and sediment controls are fully maintained for the duration of demolition/ development works (f) controls are put into place to prevent tracking of sediment by vehicles onto adjoining roadways (g) all disturbed areas are rendered erosion-resistant by turfing, mulching, paving or similar (h) all water pumped or otherwise removed from excavations or basement areas is filtered to achieve suspended solids/non filterable residue levels complying with the Australian Water Quality guidelines for Fresh and Marine Waters (i) pumped or overland flows of water are discharged so as not to cause, permit or allow erosion (j) compliance with the Do it Right on Site brochure requirements publicated by SSROC

before the commencement of work (and until issue of the Occupation Certificate).

During the Development 48. IN2 - The Principal Certifying Authority must carry out the last critical stage inspection and, as well, the Principal Certifying Authority, or another certifying authority, must carry out all other critical stage inspections, as are prescribed in the Environmental Planning and Assessment Regulation, 2000, together with the inspections required by the Principal Certifying Authority. The critical stage inspections that are to be carried out in respect of the building work approved under this development consent are as follows: (a) At the commencement of building work, (b) After excavation for, and prior to the placement of, any footings, (c) Prior to pouring any in-situ reinforced building element, (d) Prior to covering of the framework for any floor, wall, roof, or other building element, (e) Prior to covering waterproofing in any wet areas, (f) Prior to covering any stormwater drainage connections, and (g) After the building work has been completed and prior to any occupation certificate being issued in relation to the building. Where Council has been appointed as the principal certifying authority, a PCA Services Fee will be paid in accordance with the Schedule of Fees and Charges. Forty-eight (48) hours notice in writing, or alternatively twenty-four (24) hours notice by facsimile or telephone, must be given to Council when specified work requiring inspection has been completed.

DD2 - Registered Surveyor's Report - Submit to the Principal Certifying Authority During Development Work A Registered Surveyor's Report must be submitted to the Principal Certifying Authority at each of the following applicable stages of construction: (a) Setout before commencing excavation. (b) Floor slabs or foundation wall, before formwork or commencing brickwork. (c) Completion of Foundation Walls - Before any construction of flooring, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. (d) Completion of Floor Slab Formwork - Before pouring of concrete/walls construction, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. In multi-storey buildings a further survey must be provided at each subsequent storey. (e) Completion of any Pool Formwork - Before concreting of pool shell, detailing the location of the pool relative to the adjacent boundaries and its height relative to the datum shown on the approved plans. (f) Completion of any Roof Framing - Before roof covered detailing eaves/gutter setback from boundaries. (g) Completion of all Work - Detailing the location of the structure (including eaves/gutters) relative to adjacent boundaries and its height relative to the datum shown on the approved plans. A final Check Survey must indicate the reduced level of the main ridge. (h) Other. Work must not proceed beyond each stage until the Principal Certifying Authority is satisfied that the height and location of the building is proceeding in accordance with the approved plans.

PN1 - Hours of Operation for Building and Demolition Work - Work in connection with the proposed development or building that involves the demolition of any existing buildings, any excavation or earthworks, the depositing of materials on the site, the removal of spoil and materials from the site or the erection of the building that requires the use of any tools (including hand tools) or any power operated plant or machinery that creates noise on or adjacent to the site shall only be performed between the hours of 7.00 am and 5.00 pm, Monday to Saturday inclusive. No work is to take place on Sundays, Good Friday, Christmas Day, and any public holiday.

Additionally, construction work on all buildings (except that on single dwelling houses and associated structures on the site of a single dwelling house) is prohibited on Saturdays and Sundays on weekends adjacent to a public holiday.

A Penalty Infringement Notice may be issued for failure to comply with this condition.

MI1 - The street number of the property, according to its rateable address indicated in Council's records, must be clearly displayed on the front of the building, front fence or the like. 52. MI4 - The side and rear boundaries of the site must be fenced with either 1800 mm high lapped, capped and stained paling fences or 1800 mm colourbond metal fencing. The type of fence is to be by agreement with the adjoining property owners. 53. MI6 - A minimum of 7.5 metres of clothes line is to be provided per unit.

RR8 - Any existing vehicular crossing and/or layback which is redundant must be removed, and the kerb, any other footpath and turf is to be restored at the expense of the beneficiary of this consent and in accordance with Council's Specification for Vehicular Crossings and Associated Works. The work may be carried out either by Council, after payment of a quotation, or by a private contractor, subject to Council approval.

RR9 - Any utilities/services/drains/power poles that require relocating or altering as a result of construction of the vehicular crossing to Council's issued levels and/or Council's standard shape, is to be done in accordance with the requirements of the relevant service/utility and at the expense of the beneficiary of this consent. 56. MI21 - All enclosed and unrestricted car parking spaces, internal driveways and the like, shall be designed to conform with Council's Development Control Plan. Regard shall be given to the crossfall, in longitudinal profile, of the footpath in the design of footpaths.

MI21.1 - Internal Driveways - Internal driveways, entered from the footpath, shall be designed to conform with Council's Development Control Plan. Regard shall be given to crossfall, in longitudinal profile, of the footpath in the design of footpaths.

PA3 - Prohibition of Burning Off - No article, material or the like shall be ignited or burnt whatsoever on or in association with the work on the site. 59. PW3 - The developer must remove any material deposited on public roads, adjacent to the site, resulting from construction/subdivision works, immediately it occurs and as directed by Council.

DE5 - The footpath and roadway shall be kept clear of obstructions, building materials, and liquid or solid waste of any type whatsoever at all times. Severe fines apply for an offence and where Council makes repairs or provides temporary public safety measures. The cost of these works may be deducted from the damage deposit. 61. LA7 - Protection of Tree Roots - Underground services shall be routed to avoid existing tree root zones. Where trenching for services is unavoidable, any roots larger than 25mm in diameter shall be conserved and services placed below the roots. 62. LA8 - Protection of Tree Roots - Protective fencing shall be provided around the Grey Gum (Eugalyptus punctata) located at the rear south east corner of the site which is to be retained. The protection measures are to be in accordance with AS 4970 - 2009 "Protection of Trees on Development Sites". Protection measures are to be installed prior to any work being undertaken on the site, during construction and removed only when the Occupation Certificate has been issued. 63. MI132 - Filling - No filling of the land between the external walls of the structure and the side, front or rear boundaries is permitted. Deepened edged beams or similar must be incorporated into the slab design and any structural engineers details are to reflect this type of design. 64. DE4 - Ground Levels - The ground levels of the site shall not be raised, or retaining walls constructed on the allotment boundary, except where indicated on approved plans or approved separately by Council.

Before Occupation 65. IN2 - Occupation Certificate (Class 1 to 10 buildings inclusive) - The building must not be occupied or used until an occupation certificate is issued by the principal certifying authority appointed for the erection of the building. Prior to the issue of the occupation certificate the Principal Certifying Authority for the building work to be carried out on the site must be satisfied: (a) That any preconditions required by the development consent to be met have been met; and

(b) Such building work has been inspected by that Principal Certifying Authority, or, in the case of all inspections other than the last critical stage inspection, by another certifying authority, on such occasions as are prescribed in the Environmental Planning and Assessment Regulation, 2000, and on such other occasions as may be required by the Principal Certifying Authority and the conditions required by this development consent.

PU1.2 - Sydney Water - Access to Water and Waste Water Services - The Section 73 Certificate must be submitted to the Principal Certifying Authority before occupation of the development/release of the plan of subdivision.

MI27 - Driveway Construction - A vehicular crossing shall be provided in accordance with Council's Specification for Vehicular Crossings and Associated Works. The work may be carried out by Council (after payment of a quotation), or by a private contractor (subject to Council approval). The work must be completed before the issue of an Occupation Certificate.

LA1 - Completion to Approved Landscape Plan - All landscape works in accordance with the landscape plan shall be completed before the issue of the occupation certificate.

WA7 - All rubbish and waste materials on-site must be removed before occupation of the premises/commencement of the approved activity.

BA1 - BASIX - All energy efficiency measures as detailed in the BASIX Certificate No. 253231S_02 dated 5 June 2009, and in the plans approved with the Development Consent, must be implemented before issue of the Occupation Certificate.

SU156 - A separate letterbox for each dwelling shall be erected and metal rivet-on type numbers installed to each letterbox. These numbers are to be no. 165 Carrington for the southeast dwelling and no.165A Carrington for the northwest dwelling.

After Occupation/Ongoing Conditions 72. Drainage Maintenance - The on-site detention drainage facility shall be maintained at all times in accordance with the approved plans.

LA2 - Maintenance to Approved Landscape Plan - All landscape works in accordance with the landscape plan shall be maintained. 74. LA4 - Parking on Landscaped Areas - No vehicles, goods, materials or extraneous matter may be parked, deposited, or stored on any of the landscaped areas.

PN6 - The maximum noise level from plant and equipment used on the site must not exceed the background noise level by more than 5dB(A) for the approved hours of the use, when measured at the boundary of the nearest residential premises. Subdivision Conditions 76. SU150 - Five (5) copies of the final plan of subdivision prepared by a Registered Surveyor shall be lodged with Council, together with the original administration sheet(s) plus one (1) copy and any relevant 88B instrument plus one (1) copy. This plan is to show the dividing wall as a brick party wall and is to create any easements for overhanging roof structures.

SU151 - The Dual Occupancy shall be built and completed in accordance with the conditions of this development consent before release of the signed subdivision plans from Council.

SU152 - An interim or final Occupation Certificate shall be obtained from the Principal Certifying Authority and submitted to Council prior to the release of the signed subdivision plans from Council.

SU153 - All Section 94 Contributions and any other outstanding fees as per Conditions of this development consent shall be paid prior to the release of the linen plan of subdivision.

SU154 - Any service or drainage line from one lot which passes or will pass through the other lot shall have: (a) A 1.0m wide easement for stormwater pipes, and (b) Aservice to have a 300mm wide easement created and registered over it. These easements are to be pursuant to Section 88B of the Conveyancing Act.

SU155 - A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Co-ordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application, a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, as it can take some time to build water/sewer pipes and this may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority/Council before occupation of the development/release of the plan of subdivision.

SU157 - A Restriction of Use of the Land is to be created over each lot by Section 88B of the Conveyancing Act to ensure each dwelling erected on these lots and the landscaping and paving of each site is to be maintained in conformity with the conditions of any future development consent approved under Council's Dual Occupancy Codes and Requirements. This Restriction shall be worded as follows: "No dwellings, including the landscaping and paving of each site shall be erected upon the lots burdened unless constructed, completed and maintained in conformity with the conditions of the Development Consent as approved by the Land and Environment Court or in conformity with the conditions of any future Development Consent approved under Council's Dual Occupancy Codes and Requirements." Hurstville City Council is to be nominated as the Authority to release, vary or modify this Restriction.

SU158 - A Positive Covenant is to be created pursuant to Section 88B of the Conveyancing Act, 1919 to ensure any on-site detention drainage facilities, together with any ancillary pipes, pits etc, be kept clean at all times, maintained in an efficient working condition and are not to be modified in any way without the prior approval of Council. This Covenant shall be worded as follows: "It is the responsibility of the lots burdened to keep the "On-Site Detention" facilities, together with any ancillary pumps, pipes, pits etc, clean at all times, maintained in an efficient working condition. The "On-Site Detention" facilities is not to be modified in any way without the prior approval of Council." Hurstville City Council is to be nominated as the Authority to release, vary or modify this Covenant. 84. SU34 - An application for a Subdivision Certificate shall be lodged for the endorsement and release of the final Subdivision plans from Council after completion of all the abovementioned conditions. To obtain a Subdivision Certificate, you must complete an application form for a Subdivision Certificate, pay the appropriate fee and submit the form together with any relevant plans and documentation for approval from Council.

Consent Operation - This consent operates from the date of endorsement set out in this notice and will lapse five (5) years after that date, unless development has commenced within that time, pursuant to the provisions of the Sections 83, and 95 of the Act.

AD1 - Dial Before you Dig - contact Sydney One Call Service to ascertain which utility services are underground in the proposed excavation area, via details of:

(a) street/house number and street name (b) side of the street (c) name of nearest cross street (d) distance from nearest cross street

For more details visit www.dialbeforeyoudig.com.au or call 1100. You can find out the location of Council drainage pipes by contacting Council's Service Delivery Directorate.

AD2 - Dividing Fences - You must satisfy the requirements of the Dividing Fences Act before erecting any fencing on common boundaries. The Chamber Magistrate at the Local Court advises on the Dividing Fences Act, particularly for legal advice or disputes, and the Community Justice Centre can also assist with disputes.

AD3 - Covenants - Irrespective of the terms of this consent you must make sure that covenants on the title of the property are complied with for proposed construction. For more details contact the Lands Department - www.lands.nsw.gov.au or call 9228 6713 or contact your Solicitor. 89. AD5 - Australia Post - A mail box meeting certain position, dimension and height requirements must be installed to satisfy Australia Post. For more details visit www.auspost.com.au or call 131318. 90. AD7 - Tree Preservation - Council's Tree Preservation Order prohibits the ringbarking, cutting down, lopping, removing, injuring, or the wilful destruction of any tree, that is 3 metres or more in height, have a girth of 30 cm or more when measured 45 cm above the ground and/or has a branch spread of 3 metres or more, except with the specific consent of the Hurstville City Council. Severe penalties apply for an offence. 91. AD8 - Stencilling - Colouring or stencilling of the footpath crossing within the road reserve is prohibited. 92. AD11 - Other approvals required - Where it is proposed to: (a) Pump concrete from within a public road reserve or laneway. (b) Stand a mobile crane within the public road reserve or laneway. (c) Use part of Council's road/footpath area. (d) Pump stormwater from the site to Council's stormwater drains. (e) Store waste containers, skip bins, and/or building materials on part of Council's footpath or roadway.

An appropriate application for a Work (construction) Zone, a pumping permit, a hoarding, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council's Schedule of Fees and Charges shall be submitted to Council and approval obtained before commencement of any of the those activities.

AD14 - If, in the future, separate ownership is sought for each dwelling, Cross Easements for support are required over the dividing wall as well as Rights of Carriageway, Easements for overhanging roof structures, drainage pipelines or services that pass from one lot into the other lot.

A notice will be attached to future Section 149 Certificates indicating that the subdivision has been approved pursuant to the provisions of Council's Local Environmental Plan 1994.

Notice in writing of the completion of the building must be provided to Council at least 48 hours prior to a final inspection being undertaken.

Contact Council's Manager - Development Advice, Mr Peter Green on telephone number 9330 6216 when the above conditions have been completed, so that an inspection may be made prior to release of the signed Subdivision plans. 97. You will be contacted by phone when the survey plans have been signed and are available for collection.

      G T Brown
      Commissioner of the Court

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.

At a glance

Court

Decision date

Source

Judgment (125 paragraphs)

Parties

Cases Cited (2)

Cited By (2)